As filed with the Securities and Exchange Commission on January 12, 1999
Registration No. 333-
================================================================================
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
First Union Corporation The Money Store, Inc.
(Exact name of registrant (Exact name of registrant
as specified in its charter) as specified in its charter)
North Carolina 56-0898180 New Jersey 22-2293022
(State or other (I.R.S. Employer (State or other (I.R.S. Employer
jurisdiction of Identification No.) jurisdiction of Identification
incorporation or incorporation or No.)
organization) organization)
One First Union Center 3301 C Street, Suite 100-M
Charlotte, North Carolina 28288-0013 Sacramento, California 95816
(704) 374-6565 (916) 446-5000
(Address, including zip code, and (Address, including zip code, and
telephone number, including area code, telephone number, including area code,
of registrant's principal executive of registrant's principal executive
offices) offices)
---------------
Marion A. Cowell, Jr., Esq.
Executive Vice President, Secretary and General Counsel
First Union Corporation
One First Union Center
Charlotte, North Carolina 28288-0013
(704) 374-6828
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
William J. Williams, Jr., Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-3722
---------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement,
as determined in the light of market and other conditions.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum Amount of
of Securities to Amount to be Offering Price Aggregate Offer- Registration
be Registered Registered Per Unit (1) ing Price (1) Fee (1)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of First
Union Corporation ........
Debt Securities of The
Money Store, Inc. ........
Guarantees of Debt
Securities of The Money
Store, Inc. by First Union
Corporation(2) ...........
Total ...................... $2,294,000,000 (1) (1) $100
====================================================================================================
</TABLE>
(1) This Registration Statement pertains to offers and sales of previously
registered debt securities guaranteed or assumed by First Union
Corporation related to market-making transactions by and through Wheat
First Securities, Inc., an affiliate of the Registrant. Because
registration fees with respect to these debt securities were paid
previously in connection with the registration of the initial offerings of
these debt securities to the public, the amount of the registration fee
payable with respect to this Registration Statement is the minimum fee of
$100.
(2) First Union Corporation is also registering under this Registration
Statement all other obligations that it may have with respect to the Debt
Securities of The Money Store, Inc.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
================================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any State.
SUBJECT TO COMPLETION, DATED JANUARY 12, 1999
First Union Corporation
[FIRST UNION LOGO]
First Union Corporation has acquired certain financial services
institutions which issued unsecured debt securities consisting of Senior Debt
Securities and Subordinated Debt Securities. As a result of these acquisitions,
the Corporation has either assumed the Debt Securities as obligations or has
guaranteed the payment of the obligations on the Debt Securities, as indicated
below and discussed herein.
FIRST UNION CORPORATION
Assumed Debt Securities
<TABLE>
<CAPTION>
Senior Subordinated
- --------------------------------------------------- --------------------------------------------------------
<S> <C>
$150,000,000 of 6 5/8% Notes of Meridian Bancorp, $75,000,000 of 9 7/8% Capital Notes of Florida National
Inc. due June 15, 2000 Banks of Florida, Inc. due May 15, 1999
$35,000,000 of 6.186% Medium-Term Notes of $100,000,000 of 9 5/8% Notes of Signet Banking
CoreStates Capital Corp. due October 2, 2000 Corporation due June 1, 1999
$49,000,000 of 5.75% Medium-Term Notes of $75,000,000 of 9 5/8% Capital Notes of Dominion
CoreStates Capital Corp. due January 15, 2001 Bankshares Corporation due June 15, 1999
$35,000,000 of 5.625% Medium-Term Notes of $150,000,000 of 9 5/8% Notes of First Fidelity
CoreStates Capital Corp. due February 12, 2001 Bancorporation due August 15, 1999
$150,000,000 of 9 5/8% Notes of CoreStates Capital
Corp. due February 15, 2001
$100,000,000 of 7 7/8% Debentures of Meridian
Bancorp, Inc. due July 15, 2002
$100,000,000 of 9 3/8% Notes of CoreStates Capital
Corp. due April 15, 2003
$150,000,000 of 6.80% Notes of First Fidelity
Bancorporation due June 15, 2003
$200,000,000 of 5 7/8% Notes of CoreStates Capital
Corp. due October 15, 2003
$175,000,000 of 6 5/8% Notes of CoreStates Capital
Corp. due March 15, 2005
$200,000,000 of 6.75% Medium-Term Notes of
CoreStates Capital Corp. due November 15, 2006
</TABLE>
THE MONEY STORE, INC.
Debt Securities guaranteed by First Union Corporation
<TABLE>
<CAPTION>
Senior Subordinated
- ------------------------------------------------- -------------------------------------------------
<S> <C>
$175,000,000 of 8.05% Notes due April 15, 2002 $150,000,000 of 7.30% Notes due December 1, 2002
$125,000,000 of 8.375% Notes due April 15, 2004 $100,000,000 of 7.95% Notes due December 1, 2007
</TABLE>
----------------
Neither the Securities and Exchange Commission nor any other regulatory
body has approved of these securities or passed upon the adequacy or accuracy
of this Prospectus. Any representation to the contrary is a criminal offense.
----------------
This Prospectus has been prepared in connection with the Debt Securities
and will be used by First Union Capital Markets, a division of Wheat First
Securities, Inc., an affiliate of the Corporation and The Money Store, Inc., in
connection with offers and sales related to market-making and other
transactions in the Debt Securities. First Union Capital Markets may act as
principal or agent in such transactions. Such sales may be made at prices
related to prevailing market rates at the time of sale or otherwise.
The date of this Prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
Index to Defined Terms ................................................ 2
Available Information ................................................. 3
The Corporation ....................................................... 5
Consolidated Ratios of Earnings to Fixed Charges ...................... 5
General Information Regarding the Debt Securities ..................... 6
General ............................................................. 6
Subordination of the Subordinated Debt Securities Generally ......... 7
Book-Entry Debt Securities .......................................... 8
Summary of Assumed Senior Debt Securities ............................. 10
Meridian 6 5/8% Senior Notes ........................................ 10
CoreStates Senior Medium-Term Notes ................................. 14
Summary of Assumed Subordinated Debt Securities ....................... 19
Florida National Subordinated Capital Notes ......................... 19
Signet 9 5/8% Subordinated Notes .................................... 23
CoreStates Subordinated Debt Securities ............................. 27
First Fidelity Subordinated Notes ................................... 29
Dominion Subordinated Capital Notes ................................. 36
Meridian 7 7/8% Subordinated Debentures ............................. 41
Summary of TMS Debt Securities and Guarantees ......................... 42
TMS Senior Notes .................................................... 43
TMS Subordinated Notes .............................................. 48
The Guarantees ...................................................... 50
Experts ............................................................... 51
Plan of Distribution .................................................. 51
Validity of Securities ................................................ 51
</TABLE>
INDEX TO DEFINED TERMS
<TABLE>
<S> <C>
Applicable Indenture ......................... 6
Applicable Trustee ........................... 6
Book-Entry Debt Securities ................... 8
CCC .......................................... 6
Code ......................................... 20
Commission ................................... 3
CoreStates ................................... 6
CoreStates 5.625% Senior MTN ................. 14
CoreStates 5.75% Senior MTN .................. 14
CoreStates 5 7/8% Subordinated Notes ......... 28
CoreStates 6.186% Senior MTN ................. 14
CoreStates 6 5/8% Subordinated Notes ......... 28
CoreStates 6.75% Subordinated MTN ............ 28
CoreStates 9 3/8% Subordinated Notes ......... 28
CoreStates 9 5/8% Subordinated Notes ......... 28
CoreStates Indentures ........................ 14
CoreStates Registered Debt Securities ........ 27
CoreStates Senior Indenture .................. 14
CoreStates Senior MTN ........................ 14
CoreStates Senior Trustee .................... 14
CoreStates Subordinated Debt Securities....... 27
CoreStates Subordinated Indenture ............ 27
CoreStates Subordinated MTN Trustee .......... 27
CoreStates Subordinated Notes ................ 27
</TABLE>
<TABLE>
<S> <C>
CoreStates Subordinated Notes Trustee ........ 27
CoreStates Subordinated Trustees ............. 27
CoreStates Trustees .......................... 14
Corporation .................................. 5
Debt Securities .............................. 6
covenant defeasance .......................... 11
Default ...................................... 31,38
Depositary ................................... 8
Discharged ................................... 48
Dominion ..................................... 6
Dominion Subordinated Capital Notes .......... 37
Dominion Subordinated Indenture .............. 37
Dominion Subordinated Trustee ................ 37
DTC .......................................... 8
Entitled Persons ............................. 35
Event of Default ............................. 11,15,20,
24,29,30,31,
37,42,45,49
Excess Proceeds .............................. 34
Exchange Act ................................. 4
First Fidelity ............................... 6
First Fidelity 6.80% Subordinated Notes....... 30
First Fidelity 9 5/8% Subordinated Notes ..... 30
First Fidelity Subordinated Indenture ........ 30
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
First Fidelity Subordinated Notes .......... 30
First Fidelity Subordinated Trustee ........ 30
Florida National ........................... 6
Florida National Subordinated Capital
Notes ................................... 19
Florida National Subordinated Indenture..... 19
Florida National Subordinated Trustee ...... 19
FUNB ....................................... 5
FUNB-NC .................................... 5
Government Obligations ..................... 35
Guarantees ................................. 43
Guarantor Senior Indebtedness .............. 51
Indentures ................................. 6
Issuer(s) .................................. 6
legal defeasance ........................... 11
legal defeasance option .................... 44
Major Constituent Bank ..................... 17,40
Major Subsidiary Bank ...................... 31
Meridian ................................... 6
Meridian 6 5/8% Senior Notes ............... 10
Meridian 7 7/8% Subordinated
Debentures .............................. 42
Meridian Debt Securities ................... 10
Meridian Indentures ........................ 10
Meridian Senior Indenture .................. 10
Meridian Senior Trustee .................... 10
Meridian Subordinated Indenture ............ 42
Meridian Subordinated Trustee .............. 42
Meridian Trustees .......................... 10
Notice of Default .......................... 45
Other Financial Obligations ................ 35
participants ............................... 8
Principal Subsidiary Bank .................. 14,26
Registration Statement ..................... 6
Senior Debt Securities ..................... 10
</TABLE>
<TABLE>
<S> <C>
Senior Guarantee ........................... 43
Senior Indebtedness ........................ 23,27,29,
34,40,42
Senior Indentures .......................... 6
Signet ..................................... 6
Signet 9 5/8% Subordinated Notes ........... 23
Signet Subordinated Indenture .............. 23
Signet Subordinated Trustee ................ 23
Subordinated Debt Securities ............... 19
Subordinated Guarantee ..................... 48
Subordinated Indentures .................... 6
Subsidiary ................................. 22
Systems .................................... 9
TIA ........................................ 17
TMS ........................................ 5
TMS 7.30% Subordinated Notes ............... 49
TMS 7.95% Subordinated Notes ............... 49
TMS 8.05% Senior Notes ..................... 43
TMS 8.375% Senior Notes .................... 43
TMS Debt Securities ........................ 43
TMS Indebtedness ........................... 50
TMS Indentures ............................. 43
TMS Senior Indebtedness .................... 50
TMS Senior Indenture ....................... 43
TMS Senior Notes ........................... 43
TMS Senior Trustee ......................... 43
TMS Subordinated Indenture ................. 48
TMS Subordinated Notes ..................... 48
TMS Subordinated Trustee ................... 48
TMS Trustees ............................... 43
transfer ................................... 13
U.S. Government Obligations ................ 48
Year 2000 .................................. 9
</TABLE>
AVAILABLE INFORMATION
The Corporation (as defined herein) files reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). Information filed with the Commission by the Corporation can be
inspected and copied at the Public Reference Room maintained by the Commission
and at the following Regional Offices of the Commission:
<TABLE>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, N.Y. 10048 Suite 1400
Chicago, IL 60621
</TABLE>
You may also obtain copies of this information by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Further information on the operation of the
Commission's Public Reference Room in Washington, D.C. can be obtained by
calling the Commission at 1-800-SEC-0330.
3
<PAGE>
The Commission also maintains an Internet site that contains reports,
proxy statements and other information about issuers, such as the Corporation,
who file electronically with the Commission. The address of that site is
http://www.sec.gov.
The Corporation's common stock is listed on the New York Stock Exchange,
and reports, proxy statements and other information concerning the Corporation
can also be inspected at the offices of such Exchange at 20 Broad Street, New
York, N.Y. 10005. More information may be obtained by contacting the
Corporation's Internet site. The address of that site is
http://www.firstunion.com.
This Prospectus is part of a registration statement that the Corporation
has filed with the Commission. The full registration statement may be obtained
from the Commission or the Corporation, as indicated below. Forms of the
various Indentures and other documents establishing the terms of the Debt
Securities are filed as exhibits to the registration statement. Statements in
this Prospectus about such documents are summaries. You should refer to the
actual documents for a more complete description of the relevant matters.
The rules of the Commission allow the Corporation to "incorporate by
reference" information into this Prospectus, which means that the Corporation
can disclose important information to you by referring you to another document
filed separately with the Commission. The information incorporated by reference
is deemed to be a part of this Prospectus, and later information that the
Corporation files with the Commission will automatically update and supersede
that information. This Prospectus incorporates by reference the following
documents that have been previously filed with the Commission. These documents
contain important information about the Corporation.
o Annual Report on Form 10-K for the year ended December 31, 1997
o Quarterly Reports on Form 10-Q for the periods ended:
o March 31, 1998
o June 30, 1998
o September 30, 1998
o Current Reports on Form 8-K dated:
o January 22, 1998
o April 15, 1998
o April 23, 1998
o May 7, 1998
o May 26, 1998
o June 8, 1998
The Corporation is also incorporating by reference additional documents
that will be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
between the date of this Prospectus and the termination of the offering of the
Debt Securities.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered a copy
of any and all of these filings. You may request a copy of these filings by
writing or telephoning the Corporation at:
Corporate Relations
First Union Corporation
One First Union Center
Charlotte, N.C. 28288-0206
Telephone: (704) 374-6782
The Corporation has not included or incorporated by reference any separate
financial statements of TMS (as defined herein). The Corporation does not
consider those financial statements would be material to holders of the TMS
Debt Securities (as defined herein) and the Guarantees (as defined herein)
because TMS is a wholly-owned subsidiary of the Corporation and the TMS Debt
Securities are unconditionally guaranteed by the Corporation, as described in
this Prospectus. Because of these reasons, TMS is no longer required to file
periodic reports with the Commission.
4
<PAGE>
THE CORPORATION
First Union Corporation (the "Corporation") was incorporated under the
laws of North Carolina in 1967 and is registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended. Pursuant to a corporate
reorganization in 1968, First Union National Bank of North Carolina ("FUNB-NC")
and First Union Mortgage Corporation, a mortgage banking firm acquired by
FUNB-NC in 1964, became subsidiaries of the Corporation. FUNB-NC merged into
First Union National Bank ("FUNB") in February 1998.
The Corporation provides a wide range of commercial and retail banking and
trust services through full-service banking offices in Connecticut, Delaware,
Florida, Georgia, Maryland, New Jersey, New York, North Carolina, Pennsylvania,
South Carolina, Tennessee, Virginia and Washington, D.C. Such offices are
operated by FUNB, based in Charlotte, North Carolina, except the Delaware
offices, which are operated by First Union Bank of Delaware. The Corporation
also provides various other financial services, including mortgage banking,
credit card, home equity lending, leasing, investment banking, insurance and
securities brokerage services, through other subsidiaries.
The Money Store, Inc. ("TMS") is a financial services company engaged,
through its subsidiaries, in the business of originating, selling and servicing
consumer and commercial loans of specified types and offering related services.
Loans originated by TMS primarily consist of (i) fixed and adjustable rate
loans secured by mortgages on residential real estate and loans which allow
consumers to borrow up to 125 percent of the value of their homes, which
include home improvement loans, (ii) loans guaranteed in part by the United
States Small Business Administration and commercial loans generally secured by
first mortgages, (iii) government-guaranteed student loans, and (iv) motor
vehicle retail installment sale contracts purchased from automobile dealers.
The Corporation has completed approximately 80 acquisitions of financial
services institutions since 1985. Certain of those financial services
institutions issued the Debt Securities prior to being acquired by the
Corporation. Such financial services institutions either have been merged into
the Corporation or are wholly-owned subsidiaries of the Corporation. See
"General Information Regarding the Debt Securities".
The Corporation's principal executive offices are located at One First
Union Center, Charlotte, North Carolina 28288-0013 (telephone number: (704)
374-6565).
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Nine Months Years Ended December 31,*
Ended ---------------------------------------------------------
September 30, 1998 1997 1996 1995 1994 1993
------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Excluding interest on deposits ......... 2.19X 2.50 2.58 2.87 3.47 4.07
Including interest on deposits ......... 1.53X 1.57 1.56 1.58 1.72 1.74
</TABLE>
* Restated to reflect various pooling of interests transactions, including
the Corporation's pooling of interests acquisition of CoreStates (as defined
herein) completed on April 28, 1998.
For purposes of computing these ratios, earnings represent income from
continuing operations before extraordinary items and cumulative effect of a
change in accounting principle plus income taxes and fixed charges (excluding
capitalized interest). Fixed charges, excluding interest on deposits, represent
interest (other than on deposits, but including capitalized interest),
one-third (the proportion deemed representative of the interest factor) of
rents and all amortization of debt issuance costs. Fixed charges, including
interest on deposits, represent all interest (including capitalized interest),
one-third (the proportion deemed representative of the interest factor) of
rents and all amortization of debt issuance costs.
5
<PAGE>
GENERAL INFORMATION REGARDING THE DEBT SECURITIES
The Debt Securities (which term includes the Senior Debt Securities and
the Subordinated Debt Securities, each as defined herein) were issued by
financial services institutions which were subsequently acquired by the
Corporation.
o The Corporation acquired Florida National Banks of Florida, Inc.
("Florida National") on January 29, 1990, by merging Florida National with
and into a wholly-owned subsidiary of the Corporation. On June 23, 1995,
such subsidiary corporation was merged with and into the Corporation.
o The Corporation acquired Dominion Bankshares Corporation ("Dominion") on
March 1, 1993, by merging Dominion with and into a wholly-owned subsidiary
of the Corporation. On July 31, 1997, such subsidiary corporation was
merged with and into the Corporation.
o The Corporation acquired First Fidelity Bancorporation ("First Fidelity")
on January 1, 1996, by merging First Fidelity with and into a wholly-owned
subsidiary of the Corporation. On February 26, 1998, such subsidiary
corporation was merged with and into the Corporation.
o The Corporation acquired Signet Banking Corporation ("Signet") on
November 30, 1997, by merging Signet with and into the Corporation.
o The Corporation acquired CoreStates Financial Corp ("CoreStates") on
April 28, 1998, by merging CoreStates with and into the Corporation.
CoreStates had previously acquired Meridian Bancorp, Inc. ("Meridian") on
April 9, 1996, by merging Meridian with and into CoreStates. CoreStates
Capital Corp ("CCC") became a wholly-owned subsidiary of the Corporation
as a result of the CoreStates acquisition, and was merged with and into
the Corporation on May 15, 1998.
o The Corporation acquired TMS on June 30, 1998, by merging a wholly-owned
subsidiary of FUNB with and into TMS.
As a result of these mergers, the Corporation, by operation of law, is
responsible for the respective obligations of Florida National, Dominion, First
Fidelity, Signet, CoreStates, Meridian and CCC with regard to their Debt
Securities. In addition, the Corporation has guaranteed the payment of the
obligations of TMS with respect to the Debt Securities issued by TMS. The
Corporation and TMS, as the current obligors under the Debt Securities, are
sometimes referred to herein individually as the "Issuer" and together as the
"Issuers".
The Debt Securities are not deposits or other obligations of a bank and
are not insured by the Federal Deposit Insurance Corporation or any other
governmental agency.
General
The Senior Debt Securities have been issued under senior indentures
(collectively, the "Senior Indentures"), between the Issuers and the Trustees
named herein. The Subordinated Debt Securities have been issued under
subordinated indentures (collectively, the "Subordinated Indentures" and
together with the Senior Indentures, the "Indentures"), between the Issuers and
the Trustees named herein. Copies of the Senior Indentures and the Subordinated
Indentures are incorporated by reference as exhibits to the registration
statement of which this Prospectus is a part (the "Registration Statement").
The descriptions of the Debt Securities and the Indentures set forth in
this Prospectus are brief summaries of certain terms and provisions thereof, do
not purport to be complete, and are qualified in their entirety by reference
to, all the provisions of the Indenture applicable to a particular series of
Debt Securities (the "Applicable Indenture", and the Trustee thereunder, the
"Applicable Trustee"), including the definitions therein of certain terms.
Whenever particular provisions or defined terms in an Applicable Indenture are
referred to, such provisions or defined terms are incorporated herein by
reference. Section references used herein are references to the Applicable
Indenture. Capitalized terms used but not defined herein shall have the meaning
given to them in the Applicable Indenture.
None of the Indentures limits the aggregate principal amount of Debt
Securities or of any particular series of Debt Securities which may be issued
thereunder and each provides that Debt Securities issued thereunder may be
issued from time to time in one or more series, except that (i) the Dominion
Subordinated Indenture (as defined herein) is limited to $75 million aggregate
principal amount of Dominion Subordinated
6
<PAGE>
Capital Notes (as defined herein), and (ii) the Florida National Subordinated
Indenture (as defined herein) is limited to $75 million aggregate principal
amount of Florida National Subordinated Capital Notes (as defined herein). None
of the Indentures limits the amount of other debt that may be issued by the
Issuers or contains financial or similar restrictive covenants relating to the
Issuers. The Issuers expect from time to time to incur additional indebtedness.
Because the Corporation is a holding company and a legal entity separate
and distinct from its subsidiaries, the rights of the Corporation to
participate in any distribution of assets of any subsidiary upon its
liquidation of assets or reorganization or otherwise (and thus the ability of
holders of Debt Securities to benefit indirectly from such distribution) would
be subject to the prior claims of creditors of that subsidiary, except to the
extent that the Corporation itself may be a creditor of that subsidiary with
recognized claims. Claims on the Corporation's subsidiary banks by creditors
other than the Corporation include indebtedness and substantial obligations
with respect to deposit liabilities and federal funds purchased, securities
sold under repurchase agreements, other short-term borrowings and various other
financial obligations.
Except as otherwise specified with respect to any of the Debt Securities,
the Debt Securities are not (1) redeemable prior to maturity, (2) subject to
repayment at the option of the registered holders thereof prior to maturity or
(3) entitled to the benefit of any sinking fund. The Corporation or its
affiliates may at any time repurchase the Debt Securities at any price in the
open market or otherwise and Debt Securities so purchased by the Corporation
may be held or resold or, at the Corporation's discretion, may be surrendered
to the Applicable Trustee for cancellation.
Except as otherwise specified with respect to any of the Debt Securities,
interest on the Debt Securities will be computed on the basis of a 360-day year
of twelve 30-day months.
Subordination of the Subordinated Debt Securities Generally
The following summary of the general subordination provisions of the
Subordinated Debt Securities is subject to the terms of each Applicable
Indenture. The obligations of the Issuers to make any payment on account of the
principal of and interest on any Subordinated Debt Securities are, to the
extent set forth in the Applicable Indenture, subordinate and junior in right
of payment to all "Senior Indebtedness" of the Corporation, as defined in the
Applicable Indenture with respect to any particular Subordinated Debt
Securities. A description of the subordination provisions of each particular
series of Subordinated Debt Securities, and of the definition of Senior
Indebtedness with respect thereto, is included below under "Summary of Assumed
Subordinated Debt Securities" and "Summary of TMS Debt Securities and
Guarantees -- TMS Subordinated Notes".
Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshalling of assets or any bankruptcy, insolvency or
similar proceedings of an Issuer, the holders of all Senior Indebtedness (as
defined in the Applicable Indenture with respect to any particular Subordinated
Debt Securities) will first be entitled to receive payment in full of all
amounts due or to become due thereon before the holders of such Subordinated
Debt Securities will be entitled to receive any payment in respect of the
principal of or interest on such Subordinated Debt Securities. In the event of
the acceleration of the maturity of any Subordinated Debt Securities, the
holders of all Senior Indebtedness will first be entitled to receive payment in
full of all amounts due thereon before the holders of such Subordinated Debt
Securities will be entitled to receive any payment upon the principal of or
interest on such Subordinated Debt Securities.
By reason of such subordination in favor of the holders of applicable
Senior Indebtedness, in the event of insolvency, creditors of an Issuer who are
not holders of applicable Senior Indebtedness or holders of the Subordinated
Debt Securities may recover less, ratably, than the holders of applicable
Senior Indebtedness and may recover more, ratably, than the holders of the
Subordinated Debt Securities. Creditors of an Issuer other than holders of
applicable Senior Indebtedness, as defined in each Subordinated Indenture,
shall not be entitled to the benefits of the subordination provisions of such
Subordinated Indenture. As a result of the differing definitions of Senior
Indebtedness in the various Subordinated Indentures, in the event of
insolvency, certain creditors of an Issuer (including the holders of certain of
such Issuer's debt securities) may receive more or less than other creditors
(including the holders of the Issuer's other debt securities).
7
<PAGE>
None of the Subordinated Indentures limits the amount of additional Senior
Indebtedness that may be issued or other obligations that may be incurred by
the applicable Issuer. The Corporation currently has an effective shelf
registration statement pursuant to which it may issue debt securities that are
senior to certain of the Subordinated Debt Securities. The Corporation and TMS
expect from time to time to issue additional indebtedness and incur other
obligations, some of which may constitute Senior Indebtedness under the
Subordinated Indentures.
Book-Entry Debt Securities
Except as otherwise specified with respect to any Debt Securities, the
Debt Securities have been issued in permanent global form (hereinafter,
"Book-Entry Debt Securities") under the Indentures. Upon issuance, all
Book-Entry Debt Securities of like tenor and having the same date of issuance
are represented by one or more permanent global Debt Securities. Each permanent
global Debt Security representing Book-Entry Debt Securities has been deposited
with, or on behalf of, The Depository Trust Company ("DTC" or the
"Depositary"), as depositary, located in the Borough of Manhattan, The City of
New York, and has been registered in the name of the Depositary or a nominee of
the Depositary.
Ownership of Book-Entry Debt Securities is limited to institutions that
have accounts with the Depositary or its nominee ("participants") or persons
that may hold interests through participants. In addition, ownership of
Book-Entry Debt Securities by participants is only evidenced by, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary or its nominee, as the case may be. Ownership of
Book-Entry Debt Securities by persons that hold interests through participants
will only be evidenced by, and the transfer of that ownership interest within
such participant will be effected only through, records maintained by such
participant. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer Book-Entry Debt Securities.
The Depositary has advised the Corporation that the Depositary is a
limited purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to Section 17A of the Exchange Act. The Depositary was created to hold
securities of its participants and to facilitate the clearance and settlement
of securities transactions among its participants in such securities through
electronic book-entry changes in accounts of such participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. Indirect
access to the Depositary's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
The Depositary has advised the Corporation that upon the issuance of a
permanent global Debt Security or Debt Securities, representing Book-Entry Debt
Securities, and the deposit of such permanent global Debt Security or Debt
Securities with the Depositary, the Depositary immediately credits, on its
book-entry registration and transfer system, the respective principal amounts
of the Book-Entry Debt Securities represented by such permanent global Debt
Security or Debt Securities to the accounts of participants.
Payments of principal of and any premium and interest on Book-Entry Debt
Securities represented by any permanent global Debt Security or Debt Securities
registered in the name of or held by the Depositary or its nominee, will be
made to the Depositary or its nominee, as the case may be, as the registered
owner and the holder of the permanent global Debt Security or Debt Securities
representing such Book-Entry Debt Securities. Such payments to the Depositary
or its nominee, as the case may be, will be made in immediately available funds
at the offices of the applicable paying agent, in the Borough of Manhattan, The
City of New York, provided that, in the case of payments of principal and any
premium, the permanent global Debt Security or Debt Securities are presented to
such paying agent in time for such paying agent to make such payments in such
funds in accordance with its normal procedures. None of the Issuers, the
Applicable Trustees or
8
<PAGE>
any agent of an Issuer or such Trustee will have any responsibility or
liability for any aspect of the Depositary's records or any participant's
records relating to or payments made on account of Book-Entry Debt Securities
or for maintaining, supervising or reviewing any of the Depositary's records or
any participant's records relating to such Book-Entry Debt Securities.
The Depositary has advised the Corporation that upon receipt of any
payment of principal of or any premium or interest in respect of a permanent
global Debt Security, the Depositary will immediately credit, on its book-entry
registration and transfer system, accounts of participants with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such permanent global Debt Security as shown on the records of the
Depositary. Payments by participants to owners of Book-Entry Debt Securities
held through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in "street name", and will be the responsibility of
such participants.
No permanent global Debt Security may be transferred except as a whole by
the Depositary for such permanent global Debt Security to a nominee of the
Depositary or by a nominee of the Depositary.
Book-Entry Debt Securities represented by a permanent global Debt Security
are exchangeable for definitive Debt Securities in registered form, of like
tenor and of an equal aggregate principal amount, only if (1) the Depositary
notifies the applicable Issuer that it is unwilling or unable to continue as
Depositary for such permanent global Debt Security or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act,
(2) the applicable Issuer in its sole discretion determines that such
Book-Entry Debt Securities shall be exchangeable for definitive Debt Securities
in registered form, or (3) (except with respect to the Debt Securities
originally issued by Meridian) any event shall have happened and be continuing
which, after notice or lapse of time, or both, would become an event of default
under the Applicable Indenture. Unless otherwise indicated below with respect
to a particular Debt Security, any permanent global Debt Security representing
Book-Entry Debt Securities that is exchangeable pursuant to the preceding
sentence shall be exchangeable in whole for definitive Debt Securities in
registered form, of like tenor and of an equal aggregate principal amount, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Such definitive Debt Securities shall be registered in the name or names of
such person or persons as the Depositary shall instruct the registrar of such
Debt Securities. It is expected that such instructions may be based upon
directions received by the Depositary from its participants with respect to
ownership of Book-Entry Debt Securities.
Except as provided above, owners of Book-Entry Debt Securities will not be
entitled to receive physical delivery of Debt Securities in definitive form and
will not be considered the holders thereof for any purpose under the
Indentures, and no permanent global Debt Security representing Book-Entry Debt
Securities will be exchangeable, except for another permanent global Debt
Security of like denomination and tenor to be registered in the name of the
Depositary or its nominee. Accordingly, each person owning a Book-Entry Debt
Security must rely on the procedures of the Depositary and, if such person is
not a participant, on the procedures of the participant through which such
person owns its interest, to exercise any rights of a holder under the
Applicable Indenture. The Indentures provide that the Depositary, as a holder,
may appoint agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a holder is entitled to give or take under the Applicable
Indentures. The Issuers understand that under existing industry practices, in
the event that an Issuer requests any action of holders or an owner of a
Book-Entry Debt Security desires to give or take any action a holder is
entitled to give or take under the Applicable Indenture, the Depositary would
authorize the participants owning the relevant Book-Entry Debt Securities to
give or take such action, and such participants would authorize beneficial
owners owning through such participants to give or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
The Depositary's Year 2000 Efforts
The Depositary's management is aware that some computer applications,
systems, and the like for processing data ("Systems") that are dependent upon
calendar dates, including dates before, on, and after January 1, 2000, may
encounter "Year 2000" problems. The Depositary has informed its participants
and other members of the financial community (the "Industry") that it has
developed and is implementing a program so that
9
<PAGE>
its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within the Depositary, continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, the Depostiary's
plan includes a testing phase, which is expected to be completed within
appropriate time frames.
However, the Depositary's ability to perform properly its services is also
dependent upon other parties, including but not limited to the Issuers and
their agents, as well as third party vendors from whom the Depositary licenses
software and hardware, and third party vendors on whom the Depositary relies
for information or the provision of services, including telecommunication and
electrical utility servicer providers, among others. The Depositary has
informed the Industry that it is contacting (and will continue to contact)
third party vendors from whom the Depositary acquires services to: (1) impress
upon them the importance of such services being Year 2000 compliant; and (2)
determine the extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, the Depositary is in the
process of developing such contingency plans as it deems appropriate.
According to the Depositary, the foregoing information with respect to the
Depostiary has been provided to the Industry for informational purposes only
and is not intended to serve as a representation, warranty, or contract
modification of any kind.
SUMMARY OF ASSUMED SENIOR DEBT SECURITIES
The following descriptions of certain terms of the particular series of
Senior Debt Securities (which term includes the Debt Securities listed below as
well as the TMS Senior Notes (as defined herein)) are summaries of the
provisions thereof, do not purport to be complete and are qualified in their
entirety by reference to the Applicable Indentures and the applicable series of
Senior Debt Securities.
<TABLE>
<CAPTION>
Securities Issue Dates Interest Payment Dates Regular Record Dates
- --------------------------------- ------------------- --------------------------- ------------------------
<S> <C> <C> <C>
6 5/8% Notes of Meridian Bancorp,
Inc. due June 15, 2000 ......... June 12, 1995 June 15 and December 15 June 1 and December 1
6.186% Medium-Term Notes of
CoreStates Capital Corp. due
October 2, 2000 ................ October 6, 1997 April 15 and October 15 April 1 and October 1
5.75% Medium-Term Notes of
CoreStates Capital Corp. due
January 15, 2001 ............... January 12, 1996 January 15 and July 15 January 1 and July 1
5.625% Medium-Term Notes of
CoreStates Capital Corp. due
February 12, 2001 .............. February 12, 1996 February 12 and August 12 February 1 and August 1
</TABLE>
Meridian 6 5/8% Senior Notes
CoreStates acquired Meridian on April 9, 1996. The Corporation acquired
CoreStates on April 28, 1998. By operation of law, the Corporation is the
successor to the assets and liabilities of Meridian, including the obligations
of Meridian with regard to the Meridian Debt Securities (as defined herein).
General
The Meridian 6 5/8% Notes due June 15, 2000 (the "Meridian 6 5/8% Senior
Notes", and together with the Meridian 7 7/8% Subordinated Debentures (as
defined herein), the "Meridian Debt Securities"), were issued on June 12, 1995
and will mature June 15, 2000. The Meridian 6 5/8% Senior Notes were issued
under an Indenture dated as of March 9, 1992 (the "Meridian Senior Indenture",
and together with the Meridian Subordinated Indenture (as defined herein), the
"Meridian Indentures"), between Meridian and The First National Bank of
Chicago, as Trustee (the "Meridian Senior Trustee", and together with the
Meridian Subordinated Trustee (as defined herein), the "Meridian Trustees").
The Meridian 6 5/8% Senior Notes are limited to $150 million aggregate
principal amount.
The Meridian 6 5/8% Senior Notes bear interest at the rate of 6 5/8% per
annum, payable semiannually on June 15 and December 15 each year to the
registered holders at the close of business on the June 1 and
10
<PAGE>
December 1 preceding such June 15 or December 15, respectively, whether or not
such day is a business day. The Meridian 6 5/8% Senior Notes are limited to
$150 million aggregate principal amount.
Meridian Indentures
The following description of certain terms of the Meridian Indentures
applies to the Meridian Senior Indenture and, except as expressly limited to
the Meridian Senior Indenture, also applies to the Meridian Subordinated
Indenture.
Satisfaction, Discharge and Defeasance. The Meridian Indentures and the
Meridian Debt Securities provide that with respect to Meridian Debt Securities
of any series, the Corporation will at its option either (a) be deemed to have
paid and discharged the entire indebtedness represented by its obligations
under such Meridian Debt Securities (except for certain obligations to register
the transfer or exchange of the Meridian Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Meridian Debt Securities, to maintain
an office or agency in respect of the Meridian Debt Securities and to hold
moneys for payment in trust) ("legal defeasance"), or (b) cease to be under any
obligation to comply with certain terms, provisions or conditions of the
Applicable Indenture (those terms, provisions or conditions described in the
applicable Meridian Indenture under " -- Consolidation, Merger or Sale"
(Article Seven), and " -- Limitation on Sale or Issuance of Capital Stock of a
Principal Subsidiary Bank" (Section 905)) or the terms, provisions or
conditions of the applicable Meridian Debt Securities ("covenant defeasance")
in either case, on the 91st day after (1) the Corporation has paid or caused to
be paid all other sums payable with respect to such Meridian Debt Securities
and the Corporation has delivered to the Applicable Trustee an officer's
certificate and an opinion of counsel, each stating that all conditions
precedent relating to the satisfaction and discharge of the entire indebtedness
on all of such Meridian Debt Securities have been complied with; (2) the
Corporation has deposited or caused to be deposited irrevocably with the
Applicable Trustee as a trust fund specifically pledged as security for the
benefit of the holders of such Meridian Debt Securities, (x) dollars in an
amount, or (y) obligations of, or obligations guaranteed by, the United States
of America (which through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than the due
date of any payment of principal and interest, if any, under the Meridian Debt
Securities money in an amount), or (z) a combination of (x) and (y), sufficient
to pay and discharge each installment of principal of and interest, if any, on
such Meridian Debt Securities on the dates such installments of interest or
principal are due; and (3) no event of default or event which, with notice or
the lapse of time or both, would become an event of default, under the
Applicable Indenture has occurred and is continuing on the date of such
deposit. Among the conditions of the Corporation's exercising any such option,
the Corporation is required to deliver to the Applicable Trustee an opinion of
counsel to the effect that the deposit and related defeasance would not cause
the holders of the applicable Meridian Debt Securities to recognize income,
gain or loss for United States Federal income tax purposes and that the holders
will be subject to United States Federal income tax in the same amounts, in the
same manner and at the same times as would have been the case if such deposit
and related defeasance had not occurred. (Section 403).
Events of Default; Acceleration; Waiver. The following events are "Events
of Default" under the Meridian Indentures with respect to Meridian Debt
Securities of any series: (1) default for 30 days in the payment of any
interest upon any Meridian Debt Security of such series when it becomes due and
payable; or (2) default in the payment of the principal of any Meridian Debt
Security of such series at its maturity; or (3) default for 60 days after
written notice in the performance, or breach, of any covenant or warranty of
the Corporation (other than a covenant or warranty included in the Applicable
Indenture solely for the benefit of a series of Meridian debt securities other
than those in respect of which the event of default is being determined); or
(4) certain events of bankruptcy, insolvency or reorganization of the
Corporation. (Section 501). An Event of Default under one series of Meridian
debt securities will not necessarily be an Event of Default with respect to any
other series of Meridian debt securities.
The Meridian Senior Indenture provides that if an Event of Default occurs
and is continuing with respect to the outstanding Meridian 6 5/8% Senior Notes,
then either the Meridian Senior Trustee or the holders of not less than 25
percent in principal amount of the outstanding Meridian 6 5/8% Senior Notes may
declare the principal amount of all the Meridian 6 5/8% Senior Notes to be due
and payable immediately. (Meridian Senior Indenture Section 502).
11
<PAGE>
At any time after a declaration of acceleration with respect to Meridian
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Applicable Trustee, the
holders of a majority in principal amount of such Meridian Debt Securities, by
written notice to the Corporation and the Applicable Trustee, may rescind and
annul such declaration and its consequences if (1) the Corporation has paid to
or deposited with the Applicable Trustee a sum sufficient to pay (a) all
overdue interest on all such Meridian Debt Securities, (b) the principal of any
Meridian Debt Securities of such series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or rates
prescribed for such Meridian Debt Securities, (c) to the extent that payment of
such interest is lawful, interest upon overdue interest at the rate or rates
prescribed for such Meridian Debt Securities, and (d) all sums paid or advanced
by the Applicable Trustee and the reasonable compensation, expenses,
disbursements and advances of the Applicable Trustee, its agents and counsel;
and (2) all Events of Default with respect to Meridian Debt Securities of such
series, other than the nonpayment of the principal of Meridian Debt Securities
of such series which have become due solely by such declaration of
acceleration, have been cured or waived. No such rescission, annullment or
waiver shall affect any subsequent default or impair any right consequent
thereon. (Section 502).
The Meridian Indentures also provide that no holder of any of the Meridian
Debt Securities shall have any right to institute any proceeding with respect
to the Applicable Indenture, or for the appointment of a receiver or trustee,
or for any other remedy under the Applicable Indenture, unless such holder has
previously given written notice to the Applicable Trustee of a continuing Event
of Default with respect to the Meridian Debt Securities of such series, the
holders of not less than 25 percent in principal amount of the outstanding
Meridian Debt Securities of such series shall have made written request to the
Applicable Trustee to institute proceedings in its own name as Meridian
Trustee, such holder or holders have offered to the Applicable Trustee
reasonable indemnity against costs, expenses and liabilities, the Applicable
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding, and no direction
inconsistent with such written request has been given to the Applicable Trustee
during such 60-day period by the holders of a majority in principal amount of
the outstanding Meridian Debt Securities of such series. (Section 506).
In addition, the Meridian Indentures provide that the holders of not less
than a majority in principal amount of the outstanding Meridian Debt Securities
of any series may on behalf of all holders of such series waive any past
default with respect to such series, and its consequences, except a default in
the payment of principal or interest on any Meridian Debt Securities of such
series, or in respect of a covenant or provision which cannot be modified or
amended without the consent of the holder of each outstanding Meridian Debt
Security of such series affected thereby. (Section 511).
Modification of the Meridian Indentures. Each Meridian Indenture provides
that the Corporation and the Applicable Trustee may, without the consent of any
holders of any Meridian Debt Securities issued thereunder, enter into
supplemental indentures for purposes, among other things, of: (1) evidencing
the succession of another person to the Corporation and the assumption by any
such successor of the covenants of the Corporation; (2) adding to the
Corporation's covenants or surrendering any of the Corporation's rights or
powers; (3) adding any additional events of default; (4) adding to or changing
any of the provisions of the Applicable Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Meridian debt securities in
bearer form, registrable or not registrable as to principal, and with or
without interest coupons or to provide for uncertificated Meridian Debt
Securities; (5) changing or eliminating any of the provisions of the Applicable
Indenture, provided that any such change or elimination shall become effective
only when there is no outstanding Meridian debt security created prior to the
execution of such supplemental indenture that is entitled to the benefit of
such provision; (6) securing any of the Meridian debt securities issued
thereunder; (7) establishing the form or terms of any of the Meridian debt
securities issued thereunder; (8) evidencing and providing for the acceptance
of appointments by a successor Meridian Trustee with respect to the Meridian
debt securities of one or more series issued thereunder and to add to or change
any of the provisions of the
12
<PAGE>
Applicable Indenture as shall be necessary to provide for or facilitate the
administration of the trusts thereunder by more than one Meridian Trustee; or
(9) curing any ambiguity, correcting or supplementing any provision which may
be inconsistent with any other provision, or making any other provisions with
respect to matters or questions arising under the Applicable Indenture,
provided that such action shall not adversely affect the interests of the
holders of Meridian debt securities of any series issued thereunder in any
material respect. (Section 801).
Each Meridian Indenture also contains provisions permitting the
Corporation and the Applicable Trustee, with the consent of the holders of not
less than a majority in principal amount of the Meridian Debt Securities of the
affected series, to enter into supplemental indentures for the purpose of
adding any provisions to or changing or eliminating any of the provisions of
the Applicable Indenture or of modifying in any manner the rights of the
holders of the Meridian Debt Securities issued under the Applicable Indenture,
except that no supplemental indenture shall, without the consent of the holder
of each outstanding Meridian Debt Security affected thereby, among other
things, (1) change the maturity of the principal of, or any installment of
principal of or interest on, any such Meridian Debt Security, or reduce the
principal amount thereof, or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the coin or currency of payment,
or impair the right to institute suit for the enforcement of any such payment
on or after the applicable maturity date; or (2) reduce the percentage in
principal amount of the outstanding Meridian Debt Securities of any series, the
consent of whose holders is required for any such supplemental indenture, or
the consent of whose holders is required for any waiver; or (3) change any
obligation of the Corporation to maintain an office or agency in the places and
for the purposes specified in the Applicable Indenture; or (4) with certain
exceptions and provisions, modify the foregoing requirements. (Section 802).
Control by Holders. The Meridian Indentures provide that the holders of a
majority in principal amount of the Meridian Debt Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding or power conferred on the Applicable Trustee with respect to the
Meridian Debt Securities of such series, provided that such direction shall not
be in conflict with any rule of law or the Applicable Indenture. Each Meridian
Trustee may take any other action deemed proper by such Trustee which is not
inconsistent with such direction. (Section 510).
Reports by the Corporation. The Meridian Indentures provide that the
Corporation must deliver to the Meridian Trustees, within 120 days after the
end of each fiscal year, a certificate as to the Corporation's compliance with
all conditions and covenants under the Applicable Indenture and, within ten
business days of the Corporation's becoming aware of any default or event of
default, written notice of the occurrence thereof, unless such default or event
of default shall have been cured within such ten-day period. (Section 907).
Consolidation, Merger or Sale. The Meridian Indentures provide that the
Corporation will not merge or consolidate with any other Person or sell, lease,
transfer or otherwise dispose of all or substantially all of its assets to any
Person, except that the Corporation may merge or consolidate, or sell, lease,
transfer or dispose of all or substantially all of its assets, provided that
(1) either (a) the Corporation is the surviving or successor Person, or (b) the
successor Person is organized under the laws of the United States, any state
thereof or the District of Columbia and shall assume all of the obligations of
the Corporation under the Meridian Indentures and under the Meridian Debt
Securities issued thereunder, and (2) after giving effect to the transaction,
the Corporation or the successor Person, as the case may be, shall not be in
default under any of such obligations. (Section 701).
Upon any consolidation by the Corporation with or merger by the
Corporation into any other Person or any conveyance, transfer or lease of the
properties and assets of the Corporation substantially as an entirety in
accordance with the preceding paragraph, the Person formed by such
consolidation or into which the Corporation 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 Corporation under the Applicable
Indenture, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under the Applicable
Indenture and the Meridian debt securities issued thereunder and may be
liquidated and dissolved. (Section 702).
Limitation on Sale or Issuance of Capital Stock of a Principal Subsidiary
Bank. Each Meridian Indenture contains a covenant that, subject to the
provisions described under the caption " -- Consolidation, Merger or
13
<PAGE>
Sale", above, the Corporation will not, directly or indirectly, sell, assign,
transfer or otherwise dispose of (collectively, "transfer"), or permit the
issuance of, capital stock of any Principal Subsidiary Bank (as defined below
with respect to the Meridian Indentures). The foregoing restrictions do not
apply to (1) any transfer or issuance of directors' qualifying shares (shares
required by law to be owned by a person in order for that person to qualify to
serve as a director); (2) any transfer or issuance for not less than fair
market value, if, after giving effect to such transfer (and to conversion of
any shares or securities convertible into capital stock of a Principal
Subsidiary Bank), the Corporation would own directly or indirectly not less
than 80 percent of each class of the capital stock of such Principal Subsidiary
Bank; (3) any transfer or issuance made in compliance with an order of a court
or regulatory authority; (4) any sale at any price by a Principal Subsidiary
Bank of (a) additional shares of its capital stock to its stockholders, or (b)
additional securities convertible into shares of its capital stock to its
stockholders, or (c) additional options, warrants or rights to purchase shares
of its capital stock to its stockholders, so long as prior to any such sale,
the Corporation owns shares of the same class, securities convertible into
shares, or options, warrants or rights to purchase shares, whichever the case
may be, of capital stock, and immediately after any such sale, the Corporation
owns at least as great a percentage of such shares, convertible securities, or
options, warrants or rights, whichever the case may be, as it owned prior to
such sale; (5) any issuance of shares of capital stock, or securities
convertible into, or options, warrants or rights to purchase, shares of capital
stock, of a Principal Subsidiary Bank or any subsidiary which owns shares of
capital stock, or securities convertible into, or options, warrants or rights
to acquire capital stock of any Principal Subsidiary Bank to the Corporation or
another wholly owned subsidiary; or (6) any merger or consolidation of a
Principal Subsidiary Bank or sale of substantially all of the assets of a
Principal Subsidiary Bank to any other bank subsidiary of the Corporation, 80
percent of each class of the capital stock of which is owned directly or
indirectly by the Corporation. (Section 905).
"Principal Subsidiary Bank" is defined in the Meridian Indentures as any
subsidiary bank the total assets of which as set forth in the most recent
statement of condition of such subsidiary bank equal more than 20 percent of
the total consolidated assets of the Corporation and its subsidiaries as
determined from the most recent consolidated balance sheet of the Corporation
and its subsidiaries. As of the date of this Prospectus, the term Principal
Subsidiary Bank includes FUNB.
CoreStates Senior Medium-Term Notes
The Corporation acquired CoreStates on April 28, 1998 through a merger of
CoreStates into the Corporation. On May 15, 1998, CCC, a wholly-owned
subsidiary, was merged into the Corporation.
General
The CoreStates Senior MTN (which term includes the CoreStates 6.186%
Senior MTN, the CoreStates 5.75% Senior MTN and the CoreStates 5.625% Senior
MTN, each as defined herein) were issued pursuant to a medium-term notes
program established by CoreStates and CCC. The CoreStates Senior MTN were
issued under an Indenture, dated as of December 1, 1990 (as amended and
supplemented, the "CoreStates Senior Indenture", and together with the
CoreStates Subordinated Indenture (as defined herein), the "CoreStates
Indentures"), between CoreStates, CCC and The Bank of New York, as senior
trustee (the "CoreStates Senior Trustee", and together with the CoreStates
Subordinated Trustee (as defined herein), the "CoreStates Trustees"), and
successor to NationsBank of Georgia, N.A., successor to Wachovia Bank of
Georgia, N.A. (formerly the First National Bank of Atlanta, N.A.).
CoreStates 6.186% Senior MTN
The CoreStates 6.186% Senior Medium-Term Notes due October 2, 2000 (the
"CoreStates 6.186% Senior MTN") were issued on October 6, 1997 and will mature
on October 2, 2000. The CoreStates 6.186% Senior MTN bear interest at the rate
of 6.186% per annum, payable semiannually on April 15 and October 15 each year
to the registered holders thereof at the close of business on April 1 and
October 1 preceding such April 15 and October 15, respectively. The CoreStates
6.186% Senior MTN are limited to $35 million aggregate principal amount.
14
<PAGE>
CoreStates 5.75% Senior MTN
The CoreStates 5.75% Senior Medium-Term Notes due January 15, 2001 (the
"CoreStates 5.75% Senior MTN") were issued on January 12, 1996 and will mature
on January 15, 2001. The CoreStates 5.75% Senior MTN bear interest at the rate
of 5.75% per annum, payable semiannually on January 15 and July 15 each year to
the registered holders thereof at the close of business on January 1 and July 1
preceding such January 15 and July 15, respectively. The CoreStates 5.75%
Senior MTN are limited to $49 million aggregate principal amount.
CoreStates 5.625% Senior MTN
The CoreStates 5.625% Senior Medium-Term Notes due February 12, 2001 (the
"CoreStates 5.625% Senior MTN") were issued on February 12, 1996 and will
mature on February 12, 2001. The CoreStates 5.625% Senior MTN bear interest at
the rate of 5.625% per annum, payable semiannually on February 12 and August 12
each year to the registered holders thereof at the close of business on
February 1 and August 1 preceding such February 12 and August 12, respectively.
The CoreStates 5.625% Senior MTN are limited to $35 million aggregate principal
amount.
CoreStates Indentures
The following description of certain terms of the CoreStates Indentures
applies to the CoreStates Senior Indenture and, except as expressly limited to
the CoreStates Senior Indenture, also applies to the CoreStates Subordinated
Indenture.
Satisfaction and Discharge. Upon the direction of the Corporation, the
Applicable Indenture shall cease to be of further effect (except as to certain
surviving rights, such as registration of transfer), and the Applicable Trustee
shall execute proper instruments acknowledging satisfaction and discharge of
the Applicable Indenture, when (1) either (a) all debt securities issued
thereunder have been delivered to the Applicable Trustee for cancellation (or
money has theretofore been deposited in trust or segregated and held in trust
by the Corporation, as provided in the Applicable Indenture), or (b) all debt
securities issued thereunder not theretofore delivered to the Applicable
Trustee for cancellation have become due and payable, will become due and
payable at their stated maturity within one year, or if redeemable at the
option of the Corporation, are to be called for redemption within one year, and
in each case under (b), the Corporation has deposited or caused to be deposited
with the Applicable Trustee as trust funds in trust for such purpose, money (or
obligations of, or obligations guaranteed by, the United States of America),
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money, or a combination thereof, in an
amount sufficient to pay and discharge the entire indebtedness on such debt
securities not theretofore delivered to the Applicable Trustee for
cancellation; (2) the Corporation has paid or caused to be paid all other sums
payable hereunder by it; and (3) the Corporation has delivered to the
Applicable Trustee an officers' certificate and an opinion of counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with. (Section
501).
The Corporation shall be deemed to have paid and discharged the entire
indebtedness on all CoreStates Debt Securities of any series issued under the
CoreStates Indentures, and the Applicable Trustee shall execute proper
instruments acknowledging satisfaction and discharge of such indebtedness, when
(1) with respect to all CoreStates Debt Securities of such series, the
Corporation has deposited or caused to be deposited with the Applicable
Trustee, as trust funds in trust for such purpose, money (or obligations of, or
obligations guaranteed by, the United States of America) in an amount
sufficient to pay and discharge the entire indebtedness on all CoreStates Debt
Securities of such series; and (2) the Corporation has paid or caused to be
paid all other sums payable hereunder with respect to all CoreStates Debt
Securities of such series; and (3) the Corporation has delivered to the
Applicable Trustee a certificate signed by a nationally recognized firm of
independent public accountants (who may be the independent public accountants
regularly retained by the Corporation) certifying as to the sufficiency of the
amounts deposited as described above, an officers' certificate and an cpinion
of counsel, each stating that all conditions relating to the satisfaction and
discharge of the entire indebtedness on all CoreStates Debt Securities of such
series have been complied with; and (4) the Corporation has delivered to the
Applicable Trustee (a) an opinion of independent counsel that the holders of
the CoreStates Debt Securities of such series will have no federal income tax
consequences as a result of such deposit and termination, and (b) if the
CoreStates Debt Securities of such series are then listed on the New
15
<PAGE>
York Stock Exchange, an opinion of counsel that the CoreStates Debt Securities
of such series will not be delisted as a result of the exercise of this option.
(Section 503).
Upon the satisfaction of the conditions set forth in the preceding
paragraph, the terms and conditions of the applicable series of CoreStates Debt
Securities (other than certain provisions, such as registration of transfer and
exchange, the right of holders of the CoreStates Debt Securities of such series
to receive payments from the trust fund described above, and the rights,
powers, duties and immunities of the Applicable Trustee), shall no longer be
binding upon, or applicable to, the Corporation. (Section 503).
Events of Default -- CoreStates Senior Indenture. The following are
"Events of Default" under the CoreStates Senior Indenture with respect to the
CoreStates Senior MTN of any series: (1) failure to pay principal of or
premium, if any, on any CoreStates Senior MTN of that series when due; (2)
failure to pay any interest, if any, or any additional amounts, if any, on any
CoreStates Senior MTN of that series when due, and continuance of such default
for 30 days; (3) failure to perform any other covenant of the Corporation in
the CoreStates Senior Indenture, continued for 60 days after written notice as
provided therein; (4) acceleration of indebtedness in principal amount in
excess of $5 million for money borrowed by the Corporation or any Major
Constituent Bank (as defined below) under the terms of the instrument under
which such indebtedness is issued or secured, if such acceleration is not
annulled, or such indebtedness is not discharged, within 30 days after written
notice as provided in the CoreStates Senior Indenture; (5) certain events in
bankruptcy, insolvency or reorganization of the Corporation or any Major
Constituent Bank; and (6) any other Event of Default provided with respect to
CoreStates Senior MTN of that series. (Section 601).
Acceleration of Maturity. If any Event of Default with respect to
CoreStates Debt Securities of any series shall occur and be continuing, then
and in every such case the Applicable Trustee or the holders of not less than
25 percent in principal amount of the CoreStates Debt Securities of that series
at the time outstanding may declare to be due and payable immediately by a
notice in writing to the Corporation (and to the Applicable Trustee, if given
by holders) the principal amount of all CoreStates Debt Securities of that
series. However, at any time after such a declaration of acceleration with
respect to CoreStates Debt Securities of any series has been made, but before a
judgment or decree based on such acceleration has been obtained, the holders of
a majority in principal amount of CoreStates Debt Securities of that series at
the time outstanding may, under certain circumstances, rescind and annul such
acceleration if all Events of Default (except, in the case of CoreStates Senior
MTN, the non-payment of acceleration of principal) with respect to that series
have been cured or waived as provided in the Applicable Indenture. No such
rescission shall affect any subsequent default or impair any right consequent
thereon. (Section 602).
Modification and Waiver. Each CoreStates Indenture provides that
modifications and amendments may be made by the Corporation and the Applicable
Trustee with the consent of the holders of at least 66 2/3 percent in principal
amount of the CoreStates Debt Securities of each series at the time outstanding
affected thereby; provided, however, that no such modification or amendment
may, without the consent of the holder of each CoreStates Debt Security
affected thereby, (1) change the stated maturity date of the principal of, or
any installment of principal of or interest on, any CoreStates Debt Security,
(2) reduce the principal amount of, or the premium (if any) or interest (if
any) on, or additional amounts, if any, in respect of, any CoreStates Debt
Security, (3) change the place or currency of payment of principal of, or
premium (if any) or interest (if any) on, any CoreStates Debt Security, (4)
impair the right to institute suit for the enforcement of any payment on or
with respect to any CoreStates Debt Security, (5) reduce the above-stated
percentage of CoreStates Debt Securities of any series at the time outstanding
the consent of the holders of which is required to modify or amend the
Applicable Indenture, (6) reduce the percentage in principal amount of
CoreStates Debt Securities of any series at the time outstanding the consent of
the holders of which is required for waiver of compliance with certain
provisions of the Applicable Indenture or for waiver of certain defaults, or
(7) modify (with certain exceptions) any provision of the Applicable Indentures
relating to modification and amendment of such CoreStates Indenture or waiver
of compliance with conditions and defaults thereunder. (Section 1002).
The holders of a majority in principal amount of the CoreStates Debt
Securities of any series at the time outstanding may, on behalf of the holders
of all CoreStates Debt Securities of that series, waive, insofar as that series
is concerned, compliance by the Corporation with certain restrictive provisions
of the Applicable Indenture. (Section 1110). The holders of a majority in
principal amount of the CoreStates Debt Securities of any series at the time
outstanding may on behalf of the holders of all CoreStates Debt Securities of
that series
16
<PAGE>
waive any past default under the Applicable Indenture with respect to that
series, except a default in the payment of the principal of (or premium, if
any) or interest, if any, on any CoreStates Debt Security of that series or in
respect of a provision which under the Applicable Indenture cannot be modified
or amended without the consent of the holder of each CoreStates Debt Security
of that series at the time outstanding affected thereby. (Section 613).
Modification and amendment of the CoreStates Indentures may be made by the
Corporation and the Applicable Trustee without the consent of any holder of
CoreStates Debt Securities for any of the following purposes: (1) to evidence
the succession of another corporation to the Corporation; (2) to add to the
covenants of the Corporation for the benefit of the holders of all or any
series of CoreStates debt securities issued thereunder; (3) to add events of
default; (4) to add or change any provisions of the Applicable Indenture to
facilitate the issuance of bearer securities; (5) to add to, delete from or
revise the conditions, limitations and restrictions on the authorized amount,
terms or purposes of issue, authentication and delivery of CoreStates debt
securities issued thereunder; (6) to establish the form or terms of applicable
CoreStates debt securities of any series and any related coupons; (7) to
provide for the acceptance of appointment by a successor CoreStates Trustee for
the Applicable Indenture; (8) to cure any ambiguity, defect or inconsistency in
the Applicable Indenture, provided such action does not adversely affect the
interests of holders of CoreStates debt securities of any series or any related
coupons in any material respect; (9) to modify, eliminate or add to the
provisions of the Applicable Indenture to such extent as is necessary to effect
qualification under the Trust Indenture Act of 1939, as amended (the "TIA"); or
(10) to effect the assumption by the Corporation of the obligations under the
Applicable Indenture. (Section 1001).
Consents of holders for modifications and amendments to the Applicable
Indenture must be solicited by the Corporation, and waivers by holders of
compliance with provisions under the Applicable Indenture must be obtained in
accordance with, the terms of the Applicable Indenture. (Section 104). Any such
modifications, amendments or waivers will be binding upon all future holders of
CoreStates Debt Securities issued thereunder. To the extent that consents are
properly obtained and all requirements for any changes, amendments or waivers
are otherwise satisfied, there are no provisions in the CoreStates Indentures
which allow remedies to holders who do not consent to changes or amendments to,
or waivers of past defaults under, the Applicable Indenture.
Control by Holders. The CoreStates Indentures provide that the CoreStates
Trustees will be under no obligation, subject to the duty of such CoreStates
Trustee during a default thereunder to act with the required standard of care,
to exercise any of its rights or powers under the Applicable Indenture at the
request or direction of any of the holders of any series of CoreStates Debt
Securities issued thereunder, unless such holders shall have offered the
Applicable Trustee reasonable indemnity. (Section 701). Subject to such
provisions for indemnification of the Applicable Trustee, the holders of a
majority in principal amount of the CoreStates Debt Securities of any series
issued thereunder at the time outstanding will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the the Applicable Trustee, or exercising any trust or power conferred on the
Applicable Trustee, with respect to the CoreStates Debt Securities of such
series; provided that such direction is not in conflict with any rule of law or
with the Applicable Indenture, the Applicable Trustee may take any other action
deemed proper by it which is not inconsistent with such directions, and such
direction is not prejudicial to the rights of other holders of such series.
(Section 612).
Reports by the Corporation. The Corporation is required to furnish to each
CoreStates Trustee annually a statement as to performance or fulfillment of
certain of its obligations under the Applicable Indenture and as to any default
in such performance or fulfillment. (Sections 1105 and 1106).
Consolidation, Merger or Sale. The Corporation may consolidate with, merge
into, or transfer substantially all of its properties to, any other corporation
provided that the successor corporation assumes all obligations of the
Corporation under the CoreStates Debt Securities and provided that certain
other conditions are met. (Sections 901, 902, 903 and 904).
Restrictive Covenants. The CoreStates Senior Indenture contains a covenant
limiting the Corporation's ability to dispose of the voting stock of any Major
Constituent Bank. Such covenant provides that, subject to certain exceptions,
so long as any of the CoreStates Senior MTN are outstanding, the Corporation:
(1) will
17
<PAGE>
not, nor will it permit any subsidiary to, sell, assign, transfer or otherwise
dispose of any shares of, or securities convertible into, or options, warrants
or rights to subscribe for or purchase shares of, voting stock of the Major
Constituent Bank, nor will the Corporation permit the Major Constituent Bank to
issue any shares of, or securities convertible into, or options, warrants or
rights to subscribe for or purchase shares of, voting stock of the Major
Constituent Bank, unless the Corporation will own, directly or indirectly, at
least 80 percent of the issued and outstanding voting stock of such Major
Constituent Bank after giving effect to such transaction; and (2) will not
permit a Major Constituent Bank to either (a) merge or consolidate with or into
any coporation (other than the Corporation), unless at least 80 percent of the
surviving corporation's voting stock is, or upon consummation of the merger or
consolidation will be, owned, directly or indirectly, by the Corporation and
the assets of the Corporation are at least equal to what they were prior to
such transaction, or (b) lease, sell or transfer all or substantially all of
its properties or assets to any corporation or other person (other than the
Corporation), unless 80 percent of the voting stock of such corporation or
other person is owned, or will be owned upon such lease, sale or transfer,
directly or indirectly, by the Corporation. (Section 1107).
"Major Constituent Bank" is defined in the CoreStates Senior Indenture as
any banking subsidiary of the Corporation whose assets constitute 20 percent or
more of the Corporation's assets. As of the date of this Prospectus, the term
Major Constituent Bank includes FUNB.
Additional Provisions. No holder of any CoreStates Debt Securities of any
series will have the right to institute any proceeding with respect to the
Applicable Indenture for any remedy thereunder, unless: (1) such holder shall
have previously given to the Applicable Trustee written notice of a continuing
event of default with respect to the CoreStates Debt Securities of that series;
(2) the holders of not less than 25 percent in principal amount of any series
of the CoreStates Debt Securities, at the time outstanding shall have made
written request, and offered reasonable indemnity, to the Applicable Trustee to
institute such proceeding as CoreStates Trustee; (3) the Applicable Trustee
shall not have received from the holders of a majority in principal amount of
the CoreStates Debt Securities at the time outstanding a direction inconsistent
with such request; and (4) the Applicable Trustee shall have failed to
institute such proceeding within 60 days after its receipt of such notice,
request and offer of indemnity. (Section 607). However, the holder of any
CoreStates Debt Security will have an absolute and unconditional right to
receive payment of the principal of (and premium, if any) and interest, if any,
on such CoreStates Debt Security on or after the due dates expressed in such
CoreStates Debt Security and to institute suit for the enforcement of any such
payment. (Section 608).
18
<PAGE>
SUMMARY OF ASSUMED SUBORDINATED DEBT SECURITIES
The following descriptions of certain terms of the particular series of
Subordinated Debt Securities (which term includes the Debt Securities listed
below as well as the TMS Subordinated Notes (as defined herein)) are summaries
of the provisions thereof, do not purport to be complete and are qualified in
their entirety by reference to the Applicable Indentures and the applicable
series of Subordinated Debt Securities.
<TABLE>
<CAPTION>
Series Issue Dates Interest Payment Dates Regular Record Dates
- ---------------------------------------------------- ------------------- --------------------------- ------------------------
<S> <C> <C> <C>
9 7/8% Subordinated Capital Notes of Florida
National Banks of Florida, Inc. due
May 15, 1999 ..................................... May 18, 1987 May 15 and November 15 May 1 and November 1
9 5/8% Subordinated Notes of Signet Banking
Corporation due June 1, 1999 ..................... May 23, 1989 June 1 and December 1 May 15 and November 15
9 5/8% Subordinated Notes of CoreStates Capital
Corp. due February 15, 2001 ...................... February 21, 1991 February 15 and August 15 February 1 and August 1
9 3/8% Subordinated Notes of CoreStates Capital
Corp. due April 15, 2003 ......................... April 29, 1991 April 15 and October 15 April 1 and October 1
6 5/8% Subordinated Notes of CoreStates Capital
Corp. due March 15, 2005 ......................... March 18, 1993 March 15 and September 15 March 1 and September 1
5 7/8% Subordinated Notes of CoreStates Capital
Corp. due October 15, 2003 ....................... October 19, 1993 April 15 and October 15 April 1 and October 1
6.75% Subordinated Medium-Term Notes of
CoreStates Capital Corp. due November 15, 2006 November 14, 1996 May 15 and November 15 May 1 and November 1
9 5/8% Subordinated Notes of First Fidelity
Bancorporation due August 15, 1999 ............... August 22, 1989 February 15 and August 15 February 1 and August 1
6.80% Subordinated Notes of First Fidelity
Bancorporation due June 15, 2003 ................. June 14, 1993 June 15 and December 15 June 1 and December 1
9 5/8% Subordinated Capital Notes of Dominion
Bankshares Corporation due June 15, 1999 ......... June 24, 1987 June 15 and December 15 June 1 and December 1
7 7/8% Subordinated Debentures of Meridian
Bancorp, Inc. due July 15, 2002 .................. July 22, 1992 January 15 and July 15 January 1 and July 1
</TABLE>
Florida National Subordinated Capital Notes
The Corporation acquired Florida National on January 29, 1990 by merging
Florida National with and into a wholly-owned subsidiary of the Corporation. On
June 23, 1995, such subsidiary was merged with and into the Corporation.
General
The Florida National 9 7/8% Subordinated Capital Notes Due 1999 (the
"Florida National Subordinated Capital Notes") were issued on May 18, 1987 and
will mature on May 15, 1999. The Florida National Subordinated Capital Notes
were issued under an Indenture dated as of May 1, 1987 (the "Florida National
Subordinated Indenture"), between Florida National and The First National Bank
of Chicago, as Trustee (the "Florida National Subordinated Trustee").
The Florida National Subordinated Capital Notes bear interest at the rate
of 9 7/8% per annum payable semiannually on May 15 and November 15 each year to
the registered holders at the close of business on May 1 and November 1
preceding such May 15 and November 15, respectively. The Florida National
Subordinated Capital Notes are limited to $75 million aggregate principal
amount.
The Florida National Subordinated Capital Notes have been issued in fully
registered form only, without coupons. Principal of and interest on the Florida
National Subordinated Capital Notes is payable, and the transfer of the Florida
National Subordinated Capital Notes is registrable, at an office or agency of
the Corporation in St. Petersburg, Florida and in the Borough of Manhattan, The
City of New York, maintained for such purpose and at any other office or agency
maintained by the Corporation for such purpose, except that, at the option of
the Corporation interest may be paid by mailing a check to the address of the
person entitled thereto as it appears on the register for the Florida National
Subordinated Capital Notes.
Florida National Subordinated Indenture
Redemption of Florida National Subordinated Capital Notes Upon Certain
Events Relating to Federal Income Taxes. The Florida National Subordinated
Capital Notes may not be redeemed prior to maturity, except that the Florida
National Subordinated Capital Notes are subject to redemption for cash at any
time, in whole
19
<PAGE>
but not in part, at the option of the Corporation at a redemption price equal
to the entire principal amount thereof, together with accrued interest to the
date fixed for redemption, upon not less than 30 days' prior notice if the
Corporation shall determine that it is not, or there is a substantial
probability that it will not be, allowed to deduct under Section 163(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding
provision of any future Internal Revenue Code, payments of interest to holders
of the Florida National Subordinated Capital Notes as a result of (1) any
change in or amendment to, or officially proposed change in or amendment to,
the laws (or any regulations or rulings promulgated thereunder) of the United
States or any change in, or officially proposed change in, operation or
official interpretation of such laws, rulings, or regulations (in any such case
occurring on or after the date hereof and not officially proposed prior to the
date hereof); (2) any action taken by a taxing authority of the United States
on or after the date hereof, which action is generally applied or which is
taken with respect to the Corporation; (3) a decision rendered by a court of
competent jurisdiction in the United States on or after the date hereof,
whether or not such decision was rendered with respect to the Corporation; or
(4) a technical advice memorandum or ruling issued on or after the date hereof
by the United States Internal Revenue Service on substantially the same facts
as those affecting the Corporation. Prior to the mailing of any notice of
redemption pursuant to this paragraph, the Corporation shall deliver to the
Florida National Subordinated Trustee an opinion of independent counsel that
the conditions precedent to the right to so redeem have occurred.
Events of Default and Limited Rights of Acceleration. The Florida National
Subordinated Indenture defines an "Event of Default" as being certain events
involving the bankruptcy, insolvency or reorganization of the Corporation.
(Section 501). If an Event of Default occurs and is continuing, either the
Florida National Subordinated Trustee or the holders of at least 25 percent in
aggregate principal amount of the outstanding Florida National Subordinated
Capital Notes may declare the principal amount of all the Florida National
Subordinated Capital Notes to be due and payable immediately in cash. (Section
502). The foregoing provision would be subject as to enforcement to the broad
equity powers of a Federal bankruptcy court and to the determination by that
court of the nature of the rights of the holders of the Florida National
Subordinated Capital Notes. At any time after a declaration of acceleration
with respect to Florida National Subordinated Capital Notes has been made, but
before a judgment or decree based on acceleration has been obtained, the
holders of a majority in aggregate principal amount of outstanding Florida
National Subordinated Capital Notes may, under certain circumstances, rescind
and annul such acceleration. No such rescission or annulment shall affect any
subsequent default or impair any right consequent thereon. (Section 502).
The Florida National Subordinated Indenture does not provide for any right
of acceleration of the payment of principal of the Florida National
Subordinated Capital Notes upon a default in the payment of principal or
interest or in the performance of any covenant or agreement in the Florida
National Subordinated Capital Notes or the Florida National Subordinated
Indenture. In the event of a default in the payment (including the delivery of
any Capital Securities then required to be delivered) of principal or accrued
interest or the performance of any covenant or agreement in the Florida
National Subordinated Capital Notes or the Florida National Subordinated
Indenture, the Florida National Subordinated Trustee may, subject to certain
limitations and conditions, seek to enforce payment of such principal or
accrued interest or the performance of such covenant or agreement. (Section
503).
Modification and Waiver. Modifications and amendments of the Florida
National Subordinated Indenture may be made by the Corporation and the Florida
National Subordinated Trustee with the consent of the holders of 66 2/3 percent
in aggregate principal amount of the Outstanding Notes (as defined in the
Florida National Subordinated Indenture); provided, however, that no such
modification or amendment may, without the consent of all the holders of the
Florida National Subordinated Capital Notes affected thereby: (1) change the
stated maturity date of the principal of, or any installment of principal or
interest on, any Florida National Subordinated Capital Note; (2) reduce the
principal amount of or interest on, any Florida National Subordinated Capital
Note; (3) change the place or currency of payment of principal of or interest
on any Florida National Subordinated Capital Note; (4) impair the right to
institute suit for the enforcement of any payment (including delivery of
Capital Securities exchanged for Florida National Subordinated Capital Notes)
on or with respect to any Florida National Subordinated Capital Note; (5)
impair any rights to the delivery of Capital Securities in exchange for any
Florida National Subordinated Capital Note; or (6) reduce the percentage in
principal amount of outstanding Florida National Subordinated Capital Notes,
the consent of whose holders is
20
<PAGE>
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Florida National Subordinated
Indenture or for waiver of certain default. (Section 902).
The holders of 66 2/3 percent in aggregate principal amount of the
outstanding Florida National Subordinated Capital Notes may, on behalf of all
holders of Florida National Subordinated Capital Notes, waive compliance by the
Corporation with certain restrictive provisions of the Florida National
Subordinated Indenture. (Section 1010). The holders of a majority in aggregate
principal amount of the outstanding Florida National Subordinated Capital Notes
may, on behalf of all holders of Florida National Subordinated Capital Notes,
waive any past default under the Florida National Subordinated Indenture with
respect to Florida National Subordinated Capital Notes, except a default in the
payment of principal or interest. (Section 513).
Indemnification. In connection with any Secondary Offering (as defined in
the Florida National Subordinated Indenture) of the Capital Securities issued
in exchange for any Florida National Subordinated Capital Notes, the
Corporation and the holders will indemnify each other from liability as
follows:
Each holder for whom Capital Securities are being offered in any Secondary
Offering will agree to indemnify and hold harmless the Corporation, the
Exchange Agent (as defined in the Florida National Subordinated Indenture), the
Florida National Subordinated Trustee, any other holder, and any underwriter,
agent, or other similar person from and against any and all losses, claims,
damages and liabilities resulting from or based upon any untrue statement or
alleged untrue statement of any material fact contained in any notice of
exchange, any offering memorandum or selling document or registration statement
relating to the Secondary Offering, any preliminary prospectus or prospectus
contained therein, or any amendment thereof or supplement thereto, or resulting
from or based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, which untrue statement, alleged untrue statement, omission, or
alleged omission is made therein (1) in reliance upon and in conformity with
any written information furnished to the Corporation by or on behalf of such
holder specifically for use in connection with the preparation thereof, or (2)
because of such holder's failure to advise the Corporation in writing that any
of the assumptions described in the notice of exchange is incorrect. (Section
1304).
The Corporation will agree to indemnify and hold harmless, in connection
with any Secondary Offering, each holder for whose account Capital Securities
are being offered and sold and any underwriter, any agent, the Florida National
Subordinated Trustee, the Exchange Agent or other similar person from and
against any and all losses, claims damages, and liabilities resulting from or
based upon any untrue statement or alleged untrue statement of any material
fact contained in any notice of exchange, any offering memorandum or selling
document or registration statement relating to the Secondary Offering, any
preliminary prospectus or prospectus contained therein, or any amendment
thereof or supplement thereto, or resulting from or based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or resulting from
the Corporation's failure to register the Capital Securities with or gain the
approval for the sale of the Capital Securities of any appropriate governmental
authority; provided, however, that the Corporation will not be liable in any
such case to the extent that any such loss, claim, damage, or liability arises
out of or is based upon any such untrue statement, alleged untrue statement,
omission, or alleged omission made therein (1) in reliance upon and in
conformity with any written information furnished to the Corporation by or on
behalf of such holder specifically for use in connection with the preparation
thereof, or (2) because of such holder's failure to advise the Corporation in
writing that any of the assumptions described in the notice of exchange is
incorrect. In connection with any Secondary Offering, the Corporation agrees to
obtain usual and appropriate indemnification of such holder for the account of
whom Capital Securities are being offered and sold in any Secondary Offering
from any underwriter, agent or other similar person. (Section 1308).
Consolidation, Merger, and Sale of Assets. The Corporation, without the
consent of the holders of any of the outstanding Florida National Subordinated
Capital Notes, may consolidate or merge with or into, or transfer its assets
substantially as an entirety to, any corporation organized under the laws of
any domestic jurisdiction, provided that the successor corporation assumes the
Corporation's obligations on the Florida National Subordinated Capital Notes
and under the Florida National Subordinated Indenture, and that after giving
effect to the transaction no Event of Default, and no event which, after notice
or lapse of time, would become an Event of Default, has occurred and its
continuing, and that certain other conditions are met. (Section 801).
21
<PAGE>
Restrictions on Disposition of Bank Stock. The Florida National
Subordinated Indenture contains a covenant by the Corporation that it, together
with its wholly-owned subsidiaries, will at all times own at least 80 percent
of the issued and outstanding Voting Stock (as defined in the Florida National
Subordinated Indenture) of FUNB free and clear of any liens, security interests
or other encumbrances. For this purpose, a wholly-owned subsidiary of the
Corporation is defined as a subsidiary all of the outstanding Voting Stock of
which is owned directly or indirectly by the Corporation. The Corporation
further covenants in the Florida National Subordinated Indenture that it will
not sell, assign, transfer, grant a security interest in or otherwise dispose
of any shares of Voting Stock of FUNB, nor will it permit FUNB or any other
subsidiary to sell, assign, transfer, grant a security interest in or otherwise
dispose of any Voting Stock of FUNB, except for fair market value on the date
thereof, as determined by the Board of Directors of the Corporation (which
determination shall be conclusive). (Section 1007).
Liens on Certain Capital Stock. Except as described in the immediately
preceding paragraph, the Florida National Subordinated Indenture prohibits the
Corporation from creating, assuming, incurring or suffering to exist any
mortgage, pledge, encumbrance or lien or charge of any kind upon the capital
stock of FUNB (other than directors' qualifying shares) or the capital stock of
a Subsidiary (as defined below) which owns directly or indirectly capital stock
of FUNB, except liens for taxes not due or which are being contested in good
faith by appropriate proceedings or the lien of any judgment which has not
remained undischarged or unstayed for more than 60 days. (Section 1008).
"Subsidiary" is defined in the Florida National Subordinated Indenture as any
corporation at least a majority of whose outstanding Voting Stock shall at any
time be owned by the Corporation or by one or more subsidiaries or by the
Corporation and one or more subsidiaries. (Section 101).
Control by Holders. Subject to the duty of the Florida National
Subordinated Trustee during default to act with the required standard of care,
the Florida National Subordinated Trustee will be under no obligation to
exercise any of its rights or powers under the Florida National Subordinated
Indenture at the request or direction of any of the holders unless such holders
shall have offered to the Florida National Subordinated Trustee reasonable
indemnity. (Section 603). Subject to such provisions for the indemnification of
the Florida National Subordinated Trustee, the holders of a majority in
aggregate principal amount of the outstanding Florida National Subordinated
Capital Notes will have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Florida National
Subordinated Trustee or exercising any trust or power conferred on the Florida
National Subordinated Trustee, provided that such action is not in conflict
with any rule of law or with the Florida National Subordinated Indenture and
provided that the Florida National Subordinated Trustee may take any action
deemed proper by it which is not inconsistent with such direction. (Section
512).
Reports by the Corporation. The Corporation is required to furnish to the
Florida National Subordinated Trustee annually a statement as to the
performance by the Corporation of certain of its obligations under the Florida
National Subordinated Indenture and as to any default in such performance.
(Section 1009)
Subordination. Upon any distribution of assets of the Corporation upon any
dissolution, winding up, liquidation or reorganization, the payment of the
principal of and interest on the Florida National Subordinated Capital Notes is
to be subordinated to the extent provided in the Florida National Subordinated
Indenture in right of payment to the prior payment in full of all Senior
Indebtedness. In addition, no payment of principal or interest (in cash,
property, securities, by set-off or otherwise) may be made on the Florida
National Subordinated Capital Notes or in respect of any redemption,
retirement, purchase or other acquisition of the Florida National Subordinated
Capital Notes or any exchange or by exchange of the Capital Securities at any
time when there is a default in the payment of principal of, premium, if any,
interest or otherwise on any Senior Indebtedness. Except in these respects, the
subordination of the Florida National Subordinated Capital Notes will not
affect the obligation of the Corporation to make payment of principal or
interest on the Florida National Subordinated Capital Notes. Subject to the
payment in full of all Senior Indebtedness, the holders of the Florida National
Subordinated Capital Notes shall be subrogated to the rights of the holders of
the Senior Indebtedness to receive payments or property. Such subordination
will not prevent the occurrence of an Event of Default in respect of the
Florida National Subordinated Capital Notes. See ";Events of Default and
Limited Rights of Acceleration", above, for limitations on the rights of
acceleration.
"Senior Indebtedness" is defined in the Florida National Subordinated
Indenture as the principal of, premium, if any, and unpaid interest on (1)
indebtedness of the Corporation (including indebtedness of others
22
<PAGE>
guaranteed by the Corporation), other than the Florida National Subordinated
Capital Notes, whether previously outstanding or thereafter created, incurred,
assumed or guaranteed (a) for money borrowed, or (b) in connection with the
acquisition by the Corporation or a Subsidiary, other than in the ordinary
course of business, of assets of any kind, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is provided
that such indebtedness is not superior in right of payment to the Florida
National Subordinated Capital Notes, and (2) renewals, extensions,
modifications and refunding of any such indebtedness.
As of , 1998, the Corporation had approximately $ million
aggregate principal amount of indebtedness outstanding that qualified as Senior
Indebtedness under the Florida National Subordinated Indenture. The Corporation
expects from time to time to issue additional indebtedness and to incur other
obligations that may constitute Senior Indebtedness under the Florida National
Subordinated Indenture.
Certain Federal Income Tax Consequences of Florida National Subordinated
Capital Notes
The United States Internal Revenue Service has issued a Revenue Ruling to
the effect that "mandatory convertible debt" issued by a bank holding company
under the circumstances described in the ruling is debt of the bank holding
company for Federal income tax purposes. The Florida National Subordinated
Capital Notes are substantially similar to the mandatory convertible debt
described in the Revenue Ruling, and therefore should represent debt of the
Corporation, with the result that interest payable on the Florida National
Subordinated Capital Notes should be taxable as interest, rather than
dividends, for Federal income tax purposes.
A holder's basis in a Florida National Subordinated Capital Note will
generally equal the amount paid for the Florida National Subordinated Capital
Note. Upon the sale, redemption, or retirement of a Florida National
Subordinated Capital Note, gain or loss will be recognized for Federal income
tax purposes equal to the difference between the amount realized on such sale,
redemption or retirement and the holder's tax basis in the Florida National
Subordinated Capital Note.
The tax effects of the purchase of Florida National Subordinated Capital
Notes under state and local tax laws may vary. In addition, the preceding
discussion of Federal income tax consequences in a summary of general
information. Accordingly, purchasers are advised to consult their own tax
advisors with respect to federal, state and local income tax effects.
Purchasers of Florida National Subordinated Capital Notes who are non-resident
alien individuals, foreign corporations, or other non-United States persons
should also consult their own tax advisors with respect to the possible
applicability of United States withholding and other taxes upon income realized
in respect of the Florida National Subordinated Capital Notes.
Signet 9 5/8% Subordinated Notes
The Corporation acquired Signet on November 28, 1998, by merging Signet
into the Corporation.
General
The Signet 9 5/8% Subordinated Notes due June 1, 1999 (the "Signet 9 5/8%
Subordinated Notes"), were issued on May 23, 1989 and will mature June 1, 1999.
The Signet Subordinated Notes were issued under an Indenture dated as of April
1, 1986 (the "Signet Subordinated Indenture"), between Signet and The Bank of
New York, as Trustee (the "Signet Subordinated Trustee"). The Signet 9 5/8%
Subordinated Notes are limited to $100 million aggregate principal amount.
The Signet 9 5/8% Subordinated Notes bear interest at the rate of 9 5/8%
per annum, payable semiannually on June 1 and December 1 each year to the
registered holders at the close of business on the May 15 and November 15
preceding such June 1 and December 1, respectively. Interest on the Signet
9 5/8% Subordinated Notes will be computed on the basis of the actual number of
days for which interest is payable in the applicable interest period divided by
360 and rounding the resultant figure to the nearest cent (half a cent or more
being rounded upward). The Signet 9 5/8% Subordinated Notes are limited to $100
million aggregate principal amount.
The Signet 9 5/8% Subordinated Notes have been issued in fully registered
form in denominations of $1,000 and any integral multiple thereof and may be
transferred or exchanged without payment of any charge other than taxes or
other governmental charges. Principal of and interest on the Signet 9 5/8%
Subordinated
23
<PAGE>
Notes are payable, and the transfer of the Signet 9 5/8% Subordinated Notes
will be registrable, at the principal office of the Signet Subordinated Trustee
in The City of New York, or at FUNB in Richmond, Virginia, except that interest
may be paid at the option of the Corporation by check mailed to the address of
the holder entitled thereto as it appears in the register.
Signet Subordinated Indenture
Satisfaction and Discharge. The Signet Subordinated Indenture shall, upon
the request of the Corporation, cease to be of further effect (except as to
ceratin surviving rights, such as registration of transfer or exchange), when
(1) either all debt securities issued under the Signet Subordinated Indenture
have been delivered to the Signet Subordinated Trustee for cancellation or all
such securities not delivered for cancellation have, or will within one year,
become due and payable or are to be called for redemption within one year, and
the Corporation has deposited or caused to be deposited with the Signet
Subordinated Trustee funds in an amount sufficient to pay and discharge the
entire indebtedness on all such debt securities not delivered to the Signet
Subordinated Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of securities which have
become due and payable) or to the stated maturity date or redemption date, as
the case may be; (2) the Corporation has paid all other sums payable under the
Signet Subordinated Indenture by it; and (3) the Corporation has delivered to
the Signet Subordinated Trustee an officers' certificate and an opinion of
counsel, each stating that all conditions precedent provided for in the Signet
Subordinated Indenture relating to the satisfaction and discharge thereof have
been complied with. (Section 301).
Events of Default. The Signet Subordinated Indenture defines an "Event of
Default" with respect to the Signet 9 5/8% Subordinated Notes as (1) default
for a period of 30 days in the payment of any installment of interest on the
Signet 9 5/8% Subordinated Notes, (2) default in the payment of any principal
of the Signet 9 5/8% Subordinated Notes, (3) default by the Corporation in the
performance of certain covenants in the Signet Subordinated Indenture which
shall not have been remedied for a period of 90 days after written notice to
the Corporation by the Signet Subordinated Trustee or to the Corporation and
the Signet Subordinated Trustee by the holders of at least 25 percent of the
principal amount of the Signet 9 5/8% Subordinated Notes then outstanding, and
(4) certain events involving the bankruptcy, insolvency or reorganization of
the Corporation. The Signet Subordinated Indenture provides that if a default
in respect of the Signet 9 5/8% Subordinated Notes shall have occurred and be
continuing, the Signet Subordinated Trustee or the holders of not less than 25
percent in principal amount of the outstanding Signet 9 5/8% Subordinated Notes
may declare the principal amount of all of the Signet 9 5/8% Subordinated Notes
to be due and payable immediately. At any time after a declaration of
acceleration with respect to the Signet 9 5/8% Subordinated Notes has been
made, but before a judgment or decree for payment of money has been obtained by
the Signet Subordinated Trustee, the holders of a majority in principal amount
of the Signet 9 5/8% Subordinated Notes then outstanding may, under certain
circumstances, rescind and annul such declaration. (Section 402).
Acceleration. If an Event of Default with respect to the Signet 9 5/8%
Subordinated Notes occurs and is continuing, the Signet Subordinated Trustee or
the holders of not less than 25 percent in principal amount of the Signet
9 5/8% Subordinated Notes may declare the principal amount of all the Signet
9 5/8% Subordinated Notes to be due and payable immediately, by a notice in
writing to the Corporation (and the Signet Subordinated Trustee, if given by
holders), and upon any such declaration of acceleration, such principal amount
shall become due and payable. At any time after such a declaration of
acceleration with respect to the Signet 9 5/8% Subordinated Notes has been made
and before a judgment or decree for payment of the money due has been obtained
by the Signet Subordinated Trustee, the holders of a majority in principal
amount of the Signet 9 5/8% Subordinated Notes, by written notice to the
Corporation and the Signet Subordinated Trustee, may rescind and annul such
declaration of acceleration and its consequences if (1) the Corporation has
paid or deposited with the Signet Subordinated Trustee a sum sufficient to pay
all overdue interest on the Signet 9 5/8% Subordinated Notes, the principal of
the Signet 9 5/8% Subordinated Notes that has become due otherwise than by
declaration of acceleration and interest thereon, any legally enforceable
interest upon overdue installments of interest, and all expenses incurred by
the Signet Subordinated Trustee, its agents or counsel, and (2) all Events of
Default, other than the nonpayment of the principal of Signet 9 5/8%
Subordinated Notes that has become due solely by such declaration of
acceleration, has been cured or waived. No such rescission or annullment shall
affect any subsequent default or impair any right consequent thereon. (Section
402).
24
<PAGE>
Notice and Waiver. The Signet Subordinated Indenture provides that the
Signet Subordinated Trustee will, within 90 days after the occurrence of a
default in respect of the Signet 9 5/8% Subordinated Notes, give to the holders
of the Signet 9 5/8% Subordinated Notes notice of all uncured and unwaived
defaults known to it; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any, on) or interest on, any
of the Signet 9 5/8% Subordinated Notes, the Signet Subordinated Trustee will
be protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interests of the holders of such series;
and provided, further, that in the case of an Event of Default not involving
the bankruptcy, insolvency or reorganization of the Corporation, such notice
shall not be given until at least 30 days after the occurrence of such event.
For the purpose of this provision, the term "default" means any event which is,
or after notice or lapse of time, or both, would become, a default with respect
to the Signet 9 5/8% Subordinated Notes. (Section 502).
The holders of a majority in principal amount of the Signet 9 5/8%
Subordinated Notes may on behalf of the holders of all of the Signet 9 5/8%
Subordinated Notes waive any past default under the Signet Subordinated
Indenture with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any, on) or interest on
the Signet 9 5/8% Subordinated Notes, or (2) in respect of a covenant or
provision of the Signet Subordinated Indenture which, under the terms of the
Signet Subordinated Indenture, cannot be modified or amended without the
consent of the holders of all of the Signet 9 5/8% Subordinated Notes. (Section
413).
Modification of the Signet Subordinated Indenture. The Signet Subordinated
Indenture permits the Corporation and the Signet Subordinated Trustee, with the
consent of the holders of not less than two-thirds in principal amount of the
outstanding Signet 9 5/8% Subordinated Notes, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating
any of the provisions of the Signet Subordinated Indenture or modifying in any
manner the rights of the holders of the Signet 9 5/8% Subordinated Notes,
except that no such supplemental indenture may, without the consent of the
holders of all of the Signet 9 5/8% Subordinated Notes, among other things, (1)
change the stated maturity of the principal of, or any installment of principal
of or interest on, any of the Signet 9 5/8% Subordinated Notes, (2) reduce the
principal amount thereof or the rate of interest thereon, (3) change any place
of payment where, or the coin or currency in which, any of the Signet 9 5/8%
Subordinated Notes or any premium or the interest thereon is payable, (4)
impair the right to institute suit for the enforcement of any such payment on
or after the stated maturity thereof, (5) modify the provisions of the Signet
Subordinated Indenture with respect to subordination in a manner adverse to the
holders of the Signet 9 5/8% Subordinated Notes, (6) reduce the percentage in
principal amount of the Signet 9 5/8% Subordinated Notes the holders of which
are required to consent to any such supplemental indenture or any waiver of
compliance with certain provisions of, or of certain defaults under, the Signet
Subordinated Indenture, or (7) with certain exceptions, modify the foregoing
requirements. (Section 802).
The Signet Subordinated Indenture permits the Corporation and the Signet
Subordinated Trustee to execute supplemental indentures without the consent of
the holders of the Signet 9 5/8% Subordinated Notes (1) to evidence the
succession of another corporation to the Corporation and the assumption by such
successor of the covenants of the Corporation contained in the Signet
Subordinated Indenture or the Signet 9 5/8% Subordinated Notes, (2) to add to
the covenants of the Corporation or to surrender any right or power conferred
upon the Signet 9 5/8% Subordinated Notes by the Signet Subordinated Trustee,
(3) to cure any ambiguity, to correct or supplement any provision in the Signet
Subordinated Indenture that is inconsistent with any other provision in the
Signet Subordinated Indenture or to make any other provisions with respect to
matters or questions arising under the Signet Subordinated Indenture which are
not inconsistent with the provisions of the Signet Subordinated Indenture,
provided such action shall not adversely affect the interests of the holders of
the Signet 9 5/8% Subordinated Notes in any material respect, (4) to add to or
change any of the provisions of the Signet Subordinated Indenture to permit or
facilitate the issuance of subordinated debt securities in bearer form or the
transfer of subordinated debt securities by book-entry procedures, (5) to add
to or change any provision of the Signet Subordinated Indenture to permit the
issuance of subordinated debt securities convertible into other securities of
the Corporation, or (6) to add any additional defaults or events of default to
the Signet Subordinated Indenture. (Section 801).
Control by Holders. The Signet Subordinated Indenture provides that the
holders of a majority in principal amount of the Signet 9 5/8% Subordinated
Notes may direct the time, method and place of conducting any
25
<PAGE>
proceeding for any remedy available to the Signet Subordinated Trustee, as
applicable, or exercising any trust or power conferred on the Signet
Subordinated Trustee with respect to the Signet 9 5/8% Subordinated Notes,
provided that such direction is not in conflict with any rule of law or with
the Signet Subordinated Indenture and provided that the Signet Subordinated
Trustee may take any other action deemed proper by it which is not inconsistent
with such direction. The Signet Subordinated Trustee may decline to follow any
such direction with respect to the Signet 9 5/8% Subordinated Notes if it
determines in good faith that the actions or forbearances so directed would be
unduly prejudicial to the interests of the holders of the Signet 9 5/8%
Subordinated Notes not joining in such direction or would involve the Signet
Subordinated Trustee in personal liability. (Section 412).
Reports by the Corporation. The Signet Subordinated Indenture requires the
Corporation to deliver to the Signet Subordinated Trustee within 120 days after
the end of each fiscal year of the Corporation, a certificate stating that no
default has occurred under the Signet Subordinated Indenture or specifying each
such default and the nature and status thereof. (Section 904).
Limitation on Disposition of Stock or Assets. The Signet Subordinated
Indenture provides that, so long as the Signet 9 5/8% Subordinated Notes remain
outstanding, neither the Corporation nor any of its subsidiaries may sell or
otherwise dispose of any shares of capital stock or any securities convertible
into capital stock of a Principal Subsidiary Bank (as defined below) or permit
any Principal Subsidiary Bank to issue any shares of its capital stock or any
securities convertible into its capital stock, except for sales or other
dispositions or issuances which (1) are to the Corporation or any of its
subsidiaries, (2) are for the purpose of qualifying a person to serve as a
director of such Principal Subsidiary Bank, (3) are in connection with a
merger, consolidation or share exchange if, immediately after the merger,
consolidation or share exchange, the Corporation will have at least the same
proportionate ownership in the resulting or surviving entity which it had in
such Principal Subsidiary Bank immediately before such transaction, (4) are
made in compliance with an order of a court of regulatory authority of
competent jurisdiction, (5) are for fair market value and, after giving effect
to such disposition, the Corporation will own, directly or indirectly, not less
than 80 percent of the shares of each class of capital stock (and of each class
of securities convertible into capital stock) of such Principal Subsidiary
Bank, or (6) are made in connection with, and are immediately followed by,
transactions in which the Corporation acquires not less than 80 percent of the
shares of each class of capital stock (and of each class of securities
convertible into capital stock), or the assets, of a bank, bank holding
company, savings bank, savings and loan association, industrial bank or other
similar entity, the total assets of which, at the time of such acquisition, are
at least equal to the total assets of such Principal Subsidiary Bank. (Section
908).
"Principal Subsidiary Bank" is defined in the Signet Subordinated
Indenture as any subsidiary bank having total assets equal to more than 25
percent of the consolidated total assets of the Corporation and its
majority-owned subsidiaries. As of the date of this Prospectus, the term
Principal Subsidiary Bank includes FUNB.
The Signet Subordinated Indenture provides that, so long as the Signet
9 5/8% Subordinated Notes remain outstanding, the Corporation may not permit
any Principal Subsidiary Bank to dispose of all or substantially all of its
assets, except that a Principal Subsidiary Bank may (1) dispose of assets in
the ordinary course of business, (2) dispose of assets no longer useful in the
conduct of its business, or (3) convey assets to another bank subsidiary.
(Section 908).
Other Restrictions. The Corporation may not consolidate with or merge into
any other corporation or convey or transfer all or substantially all of its
assets unless the resulting or surviving corporation or the corporation that
acquires such assets (if other than the Corporation) is incorporated under the
laws of the United States, any state or the District of Columbia and assumes
the Corporation's obligations on the Signet 9 5/8% Subordinated Notes and under
the Signet Subordinated Indenture, and unless immediately after giving effect
to such transaction no default or event of default shall have happened and be
continuing under the Signet Subordinated Indenture. (Section 701).
Subordination. The obligations of the Corporation to make any payment on
account of principal (or premium, if any) or interest on the Signet 9 5/8%
Subordinated Notes will be subordinate and junior in right of payment to all
Senior Indebtedness of the Corporation. (Section 1401). No payment of principal
(or premium, if any) or interest on the Signet 9 5/8% Subordinated Notes may be
made and no holder of the Signet 9 5/8% Subordinated Notes will be entitled to
demand or receive any such payment unless all amounts then due for
26
<PAGE>
principal (or premium, if any), and interest on all Senior Indebtedness of the
Corporation shall have been paid in full or duly provided for and, at the time
of such payment or immediately after giving effect thereto, there shall not
exist with respect to any such Senior Indebtedness any event of default
permitting the holders thereof (or a trustee on their behalf) to accelerate the
maturity thereof or any event that, with the giving of notice or the passage of
time or both, would become such an event of default. (Section 1402). Upon (1)
the occurrence of any such event of default with respect to such Senior
Indebtedness that has not been cured or waived, or (2) any payment or
distribution of the assets of the Corporation upon dissolution, winding-up,
liquidation, or reorganization, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership, conservatorship or other proceedings, the
holders of Senior Indebtedness will be entitled to receive payment in full of
all principal (and premium, if any), sinking fund payments and interest before
any payment is made on the Signet 9 5/8% Subordinated Notes. (Section 1403).
The failure to make a payment on the Signet 9 5/8% Subordinated Notes by reason
of such subordination will not prevent the occurrence of a default with respect
to the Signet 9 5/8% Subordinated Notes. "Senior Indebtedness", as defined in
the Signet Subordinated Indenture, includes any obligation of the Corporation
to its creditors, whether previously outstanding or subsequently incurred,
except any obligation as to which, in the creating instrument, it is provided
that such obligation is not Senior Indebtedness.
As of , 1998, the Corporation had approximately $ million aggregate
principal amount of indebtedness outstanding that qualified as Senior
Indebtedness under the Signet Subordinated Indenture. The Corporation expects
from time to time to issue additional indebtedness and to incur other
obligations that may constitute Senior Indebtedness under the Signet
Subordinated Indenture.
CoreStates Subordinated Debt Securities
The Corporation acquired CoreStates on April 28, 1998 through a merger of
CoreStates into the Corporation. On May 15, 1998, CCC, a wholly-owned
subsidiary, was merged into the Corporation.
General
The CoreStates Subordinated Notes (which term includes the CoreStates
9 5/8% Subordinated Notes, the CoreStates 9 3/8% Subordinated Notes, the
CoreStates 5 7/8% Subordinated Notes, and the CoreStates 6 5/8% Subordinated
Notes, each as defined herein) were issued under an Indenture, dated as of
December 1, 1990 (as amended and supplemented, the "CoreStates Subordinated
Indenture"), between CoreStates, CCC and Bank One, Columbus, N.A., as
subordinated trustee (the "CoreStates Subordinated Notes Trustee"). The
CoreStates 6.75% Subordinated MTN (as defined herein, and together with the
CoreStates Subordinated Notes, the "CoreStates Subordinated Debt Securities")
were issued under the CoreStates Subordinated Indenture, as supplemented, dated
as of August 1, 1994, among CoreStates, CCC, the CoreStates Subordinated Notes
Trustee and Citibank, N.A., as successor trustee for future issuances (the
"CoreStates Subordinated MTN Trustee" and, together with the CoreStates
Subordinated Notes Trustee, the "CoreStates Subordinated Trustees").
The CoreStates 6.75% Subordinated MTN and the CoreStates 5 7/8%
Subordinated Notes are represented by Book-Entry Debt Securities. See "General
Information Regarding the Debt Securities -- Book-Entry Debt Securities". The
remainder of the CoreStates Subordinated Debt Securities (the "CoreStates
Registered Debt Securities") have been issued in registered form only, without
coupons.
The CoreStates Registered Debt Securities are in denominations of $1,000
or any integral multiple thereof. No service charge will be made for any
transfer or exchange of the CoreStates Registered Debt Securities but the
Corporation may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The principal, premium, if
any, and interest, if any, of or on the CoreStates Registered Debt Securities
will be payable, and transfer of the CoreStates Registered Debt Securities will
be registrable, at an office to be maintained by the Corporation in the City of
Philadelphia and in The City of New York, provided that payments of interest
may be made at the option of the Corporation by check mailed to the address
appearing in the security register of the person in whose name such CoreStates
Registered Debt Security is registered at the close of business on the
applicable record date for payment thereof. (Sections 305 and 307).
27
<PAGE>
CoreStates 9 5/8% Subordinated Notes
The CoreStates 9 5/8% Subordinated Notes due February 15, 2001 (the
"CoreStates 9 5/8% Subordinated Notes") were issued on February 21, 1991 and
will mature on February 15, 2001. The CoreStates 9 5/8% Subordinated Notes bear
interest at the rate of 9 5/8% per annum, payable semiannually on February 15
and August 15 of each year to the registered holders thereof at the close of
business on the February 1 and August 1 preceding such February 15 and August
15, respectively. The CoreStates 9 5/8% Subordinated Notes are limited to $150
million aggregate principal amount.
CoreStates 9 3/8% Subordinated Notes
The CoreStates 9 3/8% Subordinated Notes due April 15, 2003 (the
"CoreStates 9 3/8% Subordinated Notes") were issued on April 29, 1991 and will
mature on April 15, 2003. The CoreStates 9 3/8% Subordinated Notes bear
interest at the rate of 9 3/8% per annum, payable semiannually on April 15 and
October 15 of each year to the registered holders thereof at the close of
business on the April 1 and October 1 preceding such April 15 and October 15,
respectively. The CoreStates 9 3/8% Subordinated Notes are limited to $100
million aggregate principal amount.
CoreStates 6 5/8% Subordinated Notes
The CoreStates 6 5/8% Subordinated Notes due March 15, 2005 (the
"CoreStates 6 5/8% Subordinated Notes") were issued on March 18, 1993 and will
mature on March 15, 2005. The CoreStates 6 5/8% Subordinated Notes bear
interest at the rate of 6 5/8% per annum, payable semiannually on March 15 and
September 15 of each year to the registered holders thereof at the close of
business on the March 1 and September 1 preceding such March 15 and September
15, respectively. The CoreStates 6 5/8% Subordinated Notes are limited to $175
million aggregate principal amount.
CoreStates 5 7/8% Subordinated Notes
The CoreStates 5 7/8% Subordinated Notes due October 15, 2003 (the
"CoreStates 5 7/8% Subordinated Notes") were issued on October 19, 1993 and
will mature on April 15, 2003. The CoreStates 5 7/8% Subordinated Notes bear
interest at the rate of 5 7/8% per annum, payable semiannually on April 15 and
October 15 of each year to the registered holders thereof at the close of
business on the April 1 and October 1 preceding such April 15 and October 15,
respectively. The CoreStates 5 7/8% Subordinated Notes are limited to $200
million aggregate principal amount.
CoreStates 6.75% Subordinated Medium-Term Notes
The CoreStates 6.75% Subordinated Medium-Term Notes due November 15, 2006
(the "CoreStates 6.75% Subordinated MTN"), were issued under the CoreStates
Subordinated Indenture pursuant to a medium-term note program established by
CoreStates and CCC.
The CoreStates 6.75% Subordinated MTN were issued on November 14, 1996 and
will mature November 15, 2006. The CoreStates 6.75% Subordinated MTN bear
interest at the rate of 6.75% per annum, payable semiannually on May 15 and
November 15 each year to the registered holders at the close of business on the
May 1 and November 1 preceding such May 15 and November 15, respectively. The
CoreStates 6.75% Subordinated MTN are limited to $200 million aggregate
principal amount.
CoreStates Subordinated Indenture
Except as expressly limited therein to the CoreStates Senior Indenture,
the description of the CoreStates Indentures set forth under "Summary of
Assumed Senior Debt Securities -- CoreStates Senior Medium-Term Notes;
CoreStates Indentures", above, applies to the CoreStates Subordinated Indenture
as well. Set forth below is a description of certain additional provisions of
the CoreStates Subordinated Indenture.
Events of Default. An "Event of Default" is defined under the CoreStates
Subordinated Indenture with respect to CoreStates Subordinated Debt Securities
of any series issued thereunder as certain events in bankruptcy, insolvency or
reorganization of the Corporation or any Major Constituent Bank. (Section 601).
The CoreStates Subordinated Indenture does not provide for any right of
acceleration of the payment of the principal of a series of CoreStates
Subordinated Debt Securities upon a default in the payment of principal
28
<PAGE>
or interest or a default in the performance of any covenant or agreement in the
CoreStates Subordinated Debt Securities of a particular series or in the
CoreStates Subordinated Indenture. In the event of a default in the payment of
interest or principal, the holder of a CoreStates Subordinated Debt Security
(or the CoreStates Subordinated Trustee on behalf of the holders of all of the
series of CoreStates Subordinated Debt Securities so affected) may, subject to
certain limitations and conditions, seek to enforce payment of such interest or
principal. (Sections 602 and 603).
Modification and Waiver. In addition to the circumstances described under
"Summary of Assumed Senior Debt Securities -- CoreStates Senior Medium-Term
Notes; CoreStates Indentures; Modification and Waiver", and subject to the
limitations set forth therein, the Corporation and the CoreStates Subordinated
Trustee may not modify or amend the CoreStates Subordinated Indenture to alter
in any respect the provisions regarding the subordination of the debt
securities issued thereunder without the consent of the holders of each
CoreStates Debt Security affected thereby. (Section 1002).
Subordination. During the continuance beyond any applicable grace period
of any default with respect to Senior Indebtedness (as defined below), no
payment of principal of and interest on the CoreStates Subordinated Debt
Securities shall be made until payment in full of all principal of and premium
and interest on such Senior Indebtedness. In addition, upon any distribution of
assets of the Corporation, upon any dissolution, winding up, liquidation or
reorganization, the payment of the principal of and interest on the CoreStates
Subordinated Debt Securities is to be subordinated to the extent provided in
the CoreStates Subordinated Indenture in right of payment to the
prior payment in full of principal, premium and interest on all
Senior Indebtedness. (Article Sixteen).
For purposes of the preceding paragraph, the term "Senior Indebtedness"
means (1) with respect to the CoreStates 9 5/8% Subordinated Notes and the
CoreStates 9 3/8% Subordinated Notes, all indebtedness and other obligations of
the Corporation, whether previously outstanding or subsequently incurred or
created, except such indebtedness or obligations as are by their terms
expressly stated to be, or are identified in a resolution of the Corporation's
Board of Directors as, subordinated in right of payment to, or to rank pari
passu with, CoreStates Subordinated Debt Securities, and (2) with respect to
the CoreStates 6 5/8% Subordinated Notes, the CoreStates 5 7/8% Subordinated
Notes and the CoreStates 6.75% Subordinated MTN, indebtedness of the
Corporation for money borrowed (including indebtedness secured by certain
mortgages or other liens) evidenced by notes or other written obligations,
indebtedness of the Corporation evidenced by notes, debentures, bonds or other
securities sold by the Corporation for money, indebtedness of others of a
similar type assumed or guaranteed by the Corporation through an agreement to
purchase, contingent or otherwise, and renewals, extensions or refundings of
any of the foregoing, unless the instrument creating or evidencing the same or
the assumption or guarantee of the same expressly provides that indebtedness is
not superior in right of payment to the CoreStates Subordinated Debt
Securities. (Section 1601).
As of , 1998, the Corporation had approximately $ million aggregate
principal amount of indebtedness outstanding that qualified as Senior
Indebtedness under the CoreStates Subordinated Indenture. The Corporation
expects from time to time to issue additional indebtedness and to incur other
obligations that may constitute Senior Indebtedness under the CoreStates
Subordinated Indenture.
First Fidelity Subordinated Notes
The Corporation acquired First Fidelity on January 1, 1996 by merging
First Fidelity into a wholly-owned subsidiary. On February 26, 1998, such
subsidiary was merged into the Corporation.
General
The First Fidelity 9 5/8% Subordinated Notes (as defined herein) were
issued under an Indenture, dated as of April 1, 1988 (as amended and
supplemented, the "First Fidelity Subordinated Indenture"), between First
Fidelity and The Chase Manhattan Bank, N.A., as Trustee (the "First Fidelity
Subordinated Trustee"). The First Fidelity 6.80% Subordinated Notes (as defined
herein, and together with the First Fidelity 9 5/8% Subordinated Notes, the
"First Fidelity Subordinated Notes") were issued under the First Fidelity
Subordinated Indenture.
The First Fidelity Subordinated Notes have been issued in registered form
only, without coupons. Principal and interest on the First Fidelity
Subordinated Notes will be payable, and the First Fidelity Subordinated Notes
will be transferable, at the corporate trust office maintained by the First
Fidelity Subordinated Trustee
29
<PAGE>
in The City of New York, except that, at the option of the Corporation,
interest may be paid by check mailed to the person entitled thereto.
First Fidelity 9 5/8% Subordinated Notes
The First Fidelity 9 5/8% Subordinated Notes due August 15, 1999 (the
"First Fidelity 9 5/8% Subordinated Notes") were issued on August 22, 1989 and
will mature on August 15, 1999. The First Fidelity 9 5/8% Subordinated Notes
bear interest at the rate of 9 5/8% per annum, payable semiannually on February
15 and August 15 of each year to the registered holders at the close of
business on the February 1 and August 1 preceding such February 15 and August
15, respectively. The First Fidelity 9 5/8% Subordinated Notes are limited to
$150 million aggregate principal amount.
All provisions of the First Fidelity Subordinated Indenture relating to
defeasance, as described under ";Defeasance under the First Fidelity
Subordinated Indenture", below, apply to the First Fidelity 9 5/8% Subordinated
Notes.
First Fidelity 6.80% Subordinated Notes
The First Fidelity 6.80% Subordinated Notes due June 15, 2003 (the "First
Fidelity 6.80% Subordinated Notes") were issued on June 14, 1993 and will
mature on June 15, 2003. The First Fidelity 6.80% Subordinated Notes bear
interest at the rate of 6.80% per annum, payable semiannually on June 15 and
December 15 of each year to the registered holders at the close of business on
the June 1 and December 1 preceding such June 15 and December 15, respectively.
The First Fidelity 6.80% Subordinated Notes are limited to $150 million
aggregate principal amount.
First Fidelity Subordinated Indenture
Satisfaction and Discharge. The First Fidelity Subordinated Indenture
shall, upon the request of the Corporation, cease to be of further effect
(except as to certain surviving rights, such as registration of transfer or
exchange), when (1) either all debt securities issued under the First Fidelity
Subordinated Indenture have been delivered to the First Fidelity Subordinated
Trustee for cancellation or all such securities not delivered for cancellation
have, or will within one year, become due and payable or are to be called for
redemption within one year, and the Corporation has deposited or caused to be
deposited with the First Fidelity Subordinated Trustee funds in an amount
sufficient to pay and discharge the entire indebtedness on all such debt
securities not delivered to the First Fidelity Subordinated Trustee for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of securities which have become due and payable) or
to the stated maturity date or redemption date, as the case may be; (2) the
Corporation has paid all other sums payable under the First Fidelity
Subordinated Indenture by it; and (3) the Corporation has delivered to the
First Fidelity Subordinated Trustee an officers' certificate and an opinion of
counsel, each stating that all conditions precedent provided for in the First
Fidelity Subordinated Indenture relating to the satisfaction and discharge
thereof have been complied with. (Section 401).
Events of Default with respect to the First Fidelity 9 5/8% Subordinated
Notes. The First Fidelity Subordinated Indenture defines "Event of Default"
with respect to the First Fidelity 9 5/8% Subordinated Notes as any one of the
following events: (1) default for 30 days in any payment of interest on the
First Fidelity 9 5/8% Subordinated Notes; (2) default in the payment of
principal on any First Fidelity 9 5/8% Subordinated Notes; (3) default in the
performance or breach, for 90 days after appropriate notice, of any other
covenant or warranty in the First Fidelity Subordinated Indenture (other than a
covenant or warranty included therein solely for the benefit of a series of
debt securities other than the First Fidelity 9 5/8% Subordinated Notes); (4)
default in the payment of principal on, or acceleration of, any obligations for
borrowed money of the Corporation, any subsidiary bank holding company or any
Major Subsidiary Bank (as defined below) exceeding in the aggregate $10 million
if such obligations have not been discharged or reduced to an aggregate amount
of less than $10 million, or such acceleration is not annulled or rescinded,
within ten days after written notice; or (5) certain events of bankruptcy,
insolvency or reorganization. In case an Event of Default shall occur and be
continuing with respect to the First Fidelity 9 5/8% Subordinated Notes, the
First Fidelity Subordinated Trustee or the holders of not less than 25 percent
in aggregate principal amount of First Fidelity 9 5/8% Subordinated Notes may
declare the principal amount thereof to be due and payable immediately.
(Sections 501 and 502).
30
<PAGE>
"Major Subsidiary Bank" is defined in the First Fidelity Subordinated
Indenture as any subsidiary bank having total assets equal to 25 percent or
more of the consolidated assets of the Corporation determined as of the date of
the most recent audited financial statements of such entities. As of the date
of this Prospectus, the term Major Subsidiary Bank includes FUNB.
Events of Default with respect to the First Fidelity 6.80% Subordinated
Notes. The First Fidelity Subordinated Indenture defines an "Event of Default"
with respect to the First Fidelity 6.80% Subordinated Notes as certain events
involving the bankruptcy, insolvency or reorganization of the Corporation.
(Section 501). If any Event of Default occurs and is continuing, either the
First Fidelity Subordinated Trustee or the holders of not less than 25 percent
in principal amount of the outstanding First Fidelity 6.80% Subordinated Notes
may declare the principal amount of all First Fidelity 6.80% Subordinated Notes
to be due and payable immediately. At any time after a declaration of
acceleration with respect to First Fidelity 6.80% Subordinated Notes has been
made, but before a judgment or decree based on the acceleration has been
obtained, holders of a majority in principal amount of the outstanding First
Fidelity 6.80% Subordinated Notes of that series may, under certain
circumstances, rescind and annul such acceleration. (Section 502).
The First Fidelity Subordinated Indenture does not provide for any right
of acceleration of the payment of principal of the First Fidelity 6.80%
Subordinated Notes upon a default in the payment of principal, premium, if any,
or interest on or in the performance of any covenant or agreement applicable
to, such First Fidelity 6.80% Subordinated Notes.
In case a Default (as defined below) with respect to any series of First
Fidelity 6.80% Subordinated Notes shall occur and be continuing, the First
Fidelity Subordinated Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the holders of First Fidelity Subordinated
Notes through appropriate judicial proceedings. The First Fidelity Subordinated
Indenture defines a "Default" with respect to the First Fidelity 6.80%
Subordinated Notes as any one of the following events: (1) an Event of Default;
(2) default for 30 days in any payment of interest on any First Fidelity 6.80%
Subordinated Notes; (3) default in the payment of principal of or premium, if
any, on any First Fidelity 6.80% Subordinated Notes when due; (4) default in
the performance or breach for 90 days after appropriate notice, of any other
covenant or warranty in the First Fidelity Subordinated Indenture (other than a
covenant or warranty included in the First Fidelity Subordinated Indenture
solely for the benefit of debt securities other than First Fidelity 6.80%
Subordinated Notes); (5) default in the payment of principal on, or
acceleration of, any obligations for borrowed money of any Major Subsidiary
Bank exceeding in the aggregate $10 million if such obligations have not been
discharged or reduced to an aggregate amount of less than $10 million, or such
acceleration is not annulled or rescinded, within ten days after appropriate
notice; or (6) certain events of bankruptcy, insolvency or reorganization of
any Major Subsidiary Bank.
Modification and Waiver. Certain modifications and amendments of the First
Fidelity Subordinated Indenture may be made by the Corporation and the First
Fidelity Subordinated Trustee only with the consent of the holders of not less
than a majority in aggregate principal amount of the First Fidelity
Subordinated Notes of each series at that time outstanding and affected by the
modification or amendment, provided that no such modification or amendment may,
without the consent of the holder of each outstanding First Fidelity
Subordinated Note affected thereby, (1) change the stated maturity of the
principal of, any installment of principal of or interest on, any such First
Fidelity Subordinated Notes; (2) reduce the principal amount of, or the
premium, if any, or the interest on, any such First Fidelity Subordinated
Notes; (3) change the place of payment where, or the coin or currency in which,
any principal of, or premium, if any, or interest on, any such First Fidelity
Subordinated Note is payable; (4) impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity thereof; (5)
reduce the above-stated percentage of outstanding First Fidelity Subordinated
Notes of any series the consent of the holders of which is necessary to modify
or amend the First Fidelity Subordinated Indenture; or (6) modify the foregoing
requirements or reduce the percentage of aggregate principal amount of First
Fidelity Subordinated Notes of any series at that time outstanding necessary
for waiver of compliance with certain provisions of the First Fidelity
Subordinated Indenture or for waiver of certain defaults. (Section 902).
The holders of not less than a majority in aggregate principal amount of
the First Fidelity Subordinated Notes of any series at that time outstanding
may on behalf of the holders of all First Fidelity Subordinated
31
<PAGE>
Notes of that series waive, insofar as that series is concerned, compliance by
the Corporation with certain provisions of the First Fidelity Subordinated
Indenture. (Section 1010). The holders of not less than a majority in aggregate
principal amount of the First Fidelity Subordinated Notes of any series at that
time outstanding may on behalf of the holders of all First Fidelity
Subordinated Notes of that series waive any past default under the First
Fidelity Subordinated Indenture with respect to that series, except a default
in the payment of the principal, or premium, if any, or interest on any First
Fidelity Subordinated Notes of that series or in respect of a provision which
under the First Fidelity Subordinated Indenture cannot be modified or amended
without the consent of the holders of each of the First Fidelity Subordinated
Notes at that time outstanding issued thereunder of the series affected.
(Section 513).
Reports by the Corporation. The First Fidelity Subordinated Indenture
requires the Corporation to deliver annually to the First Fidelity Subordinated
Trustee an officers' certificate as to the performance by the Corporation of
certain of its obligations under the First Fidelity Subordinated Indenture and
as to any defaults thereunder. (Section 1009). The First Fidelity Subordinated
Indenture provides that the First Fidelity Subordinated Trustee thereunder may
withhold notice to the holders of the First Fidelity Subordinated Notes of any
series issued thereunder of any default (except in payment of principal or
premium, if any, or interest or any sinking fund installment) if it considers
such to be in the interest of the holders of First Fidelity Subordinated Notes
of such series. (Section 602).
Control by Holders. Subject to the provisions therein relating to the
duties of the First Fidelity Subordinated Trustee under the First Fidelity
Subordinated Indenture, if a Default (with respect to the First Fidelity 6.80%
Subordinated Notes) or Event of Default (with respect to the First Fidelity
9 5/8% Subordinated Notes) shall occur and be continuing, the First Fidelity
Subordinated Indenture provides that the First Fidelity Subordinated Trustee
shall be under no obligation to exercise any of its rights or powers under the
First Fidelity Subordinated Indenture at the request, order or direction of the
holders of the First Fidelity Subordinated Notes of any series issued
thereunder unless such holders shall have offered to the First Fidelity
Subordinated Trustee reasonable indemnity. (Sections 601 and 603). Subject to
such provisions for indemnification and certain other rights of the First
Fidelity Subordinated Trustee under the First Fidelity Subordinated Indenture,
the First Fidelity Subordinated Indenture provides that the holders of a
majority in aggregate principal amount of the outstanding First Fidelity
Subordinated Notes of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
First Fidelity Subordinated Trustee or exercising any trust or power conferred
on the First Fidelity Subordinated Trustee with respect to the First Fidelity
Subordinated Notes of such series, provided that such direction is not in
conflict with any rule of law or with the First Fidelity Subordinated Indenture
and provided that the First Fidelity Subordinated Trustee may take any other
action deemed proper by it which is not inconsistent with such direction.
(Sections 512 and 603).
No holder of any First Fidelity Subordinated Notes of any series will have
any right to institute any proceeding with respect to the First Fidelity
Subordinated Indenture or for any remedy thereunder, unless (1) such holder
shall have previously given to the First Fidelity Subordinated Trustee written
notice of a Default (with respect to the First Fidelity 6.80% Subordinated
Notes) or Event of Default (with respect to the First Fidelity 9 5/8%
Subordinated Notes), as the case may be, (2) the holders of at least 25 percent
in aggregate principal amount of the outstanding First Fidelity Subordinated
Notes of that series shall have made written request to the First Fidelity
Subordinated Trustee to institute such proceeding as Trustee under the First
Fidelity Subordinated Indenture, (3) such holder or holders shall have offered
to such First Fidelity Subordinated Trustee reasonable indemnity, (4) such
First Fidelity Subordinated Trustee shall have failed to institute such
proceeding for 60 days, and (5) such First Fidelity Subordinated Trustee shall
not have received from the holders of a majority in aggregate principal amount
of the outstanding First Fidelity Subordinated Notes of that series a direction
inconsistent with such request. (Section 507). However, the holder of any First
Fidelity Subordinated Notes will have an absolute right to receive payment of
the principal of and premium, if any, and interest on such First Fidelity
Subordinated Notes on or after the due dates expressed in such First Fidelity
Subordinated Notes and to institute suit for the enforcement of any such
payment. (Section 508).
Consolidation, Merger and Sale of Assets. The First Fidelity Subordinated
Indenture provides that the Corporation may not consolidate with or merge into
any other corporation or transfer its properties and assets substantially as an
entirety to any Person unless (1) the corporation formed by such consolidation
or into which the Corporation is merged or the Person to which the properties
and assets of the Corporation are so
32
<PAGE>
transferred shall be a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia and shall
expressly assume by supplemental indenture the payment of the principal of and
premium, if any, and interest on the First Fidelity Subordinated Notes and the
performance of the other covenants of the Corporation under the First Fidelity
Subordinated Indenture; (2) immediately after giving effect to such
transaction, no Default, and no event which, after notice or lapse of time or
both, would become a Default, shall have occurred and be continuing; and (3)
certain other conditions are met. (Section 801).
Restriction on Sale or Issuance of Stock of Major Subsidiary Banks and
Subsidiaries Owning Major Subsidiary Banks. The First Fidelity Subordinated
Indenture contains a covenant by the Corporation that it will not, and will not
permit any subsidiary to, sell, assign, pledge, transfer or otherwise dispose
of any shares of capital stock, or any securities convertible into shares of
Capital Stock (as defined in the First Fidelity Subordinated Indenture), of any
Major Subsidiary Bank or any subsidiary owning, directly or indirectly, any
shares of Capital Stock of any Major Subsidiary Bank and that it will not
permit any Major Subsidiary Bank or any subsidiary owning, directly or
indirectly, any shares of Capital Stock of a Major Subsidiary Bank to issue any
shares of its Capital Stock or any securities convertible into shares of its
Capital Stock, except for issuances, sales, assignments, pledges, transfers or
other dispositions which: (1) are for the purpose of qualifying a person to
serve as a director; (2) are for fair market value (as determined by the Board
of Directors of the Corporation) and, after giving effect to such disposition
and to any potential dilution, the Corporation will own, directly or
indirectly, not less than 80 percent of the shares of each class of Voting
Stock (as defined in the First Fidelity Subordinated Indenture) of such Major
Subsidiary Bank or any subsidiary owning, directly or indirectly, any shares of
Capital Stock of such Major Subsidiary Bank; (3) are made (a) in compliance
with an order of a court or regulatory authority of competent jurisdiction, or
(b) in compliance with a condition imposed by any such court or authority
permitting the acquisition by the Corporation, directly or indirectly, of any
other bank or entity the activities of which are legally permissible for a
company such as the Corporation or a subsidiary thereof to engage in, or (c) in
compliance with an undertaking made to such authority in connection with such
an acquisition (provided that, in the case of clauses (b) and (c), the assets
of the bank or entity being acquired and its consolidated subsidiaries equal or
exceed 75 percent of the assets of such Major Subsidiary Bank or such
subsidiary owning, directly or indirectly, any shares of Capital Stock of a
Major Subsidiary Bank and its respective consolidated subsidiaries on the date
of acquisition), or (4) are made to the Corporation or any wholly-owned
subsidiary. (Section 1007).
Restriction on Merger by or Sale of Assets of Major Subsidiary Banks. The
First Fidelity Subordinated Indenture contains a covenant by the Corporation
that it will not permit any Major Subsidiary Bank to merge into or consolidate
with, or lease, sell or transfer all or substantially all of its properties and
assets to, any other corporation except the Corporation or a corporation or
person which is or upon consummation of the transaction will be, a subsidiary,
not less than 80 percent of the Voting Stock of which is owned, directly or
indirectly, by the Corporation. This covenant is subject to an exception
comparable to the exception described in clause (3) of the immediately
preceding paragraph. (Section 1008).
Subordination. The payment of the principal of and premium, if any, and
interest on First Fidelity Subordinated Notes will, to the extent set forth in
the First Fidelity Subordinated Indenture, be subordinated in right of payment
to the prior payment in full of all Senior Indebtedness (as defined below) of
the Corporation. As a result of an amendment to the First Fidelity Subordinated
Indenture on June 14, 1993, there are significant differences between the
rights of holders of the First Fidelity 6.80% Subordinated Notes and the
holders of the First Fidelity 9 5/8% Subordinated Notes. In certain events of
insolvency, the payment of the principal of, premium, if any, and interest on
the First Fidelity 6.80% Subordinated Notes will, to the extent set forth in
the First Fidelity Subordinated Indenture, also be subordinated in right of
payment to the prior payment in full of all Other Financial Obligations (as
defined below) of the Corporation.
Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshalling of assets or any bankruptcy, insolvency or
similar proceedings of the Corporation, the holders of all Senior Indebtedness
will first be entitled to receive payment in full of all amounts due or to
become due before the holders of First Fidelity Subordinated Notes will be
entitled to receive any payment in respect of the principal of or premium, if
any, or interest on First Fidelity Subordinated Notes. In the event of the
acceleration of the maturity of any First Fidelity Subordinated Notes, the
holders of all Senior Indebtedness will first be entitled to receive payment in
full of all amounts
33
<PAGE>
due or to become due before the holders of First Fidelity Subordinated Notes
will be entitled to receive any payment upon the principal of or premium, if
any, or interest on First Fidelity Subordinated Notes. No payments on account
of principal, premium, if any, or interest in respect of First Fidelity
Subordinated Notes may be made if there shall have occurred and be continuing a
default in any payment with respect to Senior Indebtedness, or an event of
default with respect to any Senior Indebtedness permitting the holders thereof
to accelerate the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default. (Article Thirteen). "Senior
Indebtedness" is defined in the First Fidelity Subordinated Indenture as the
principal of and premium, if any, and interest on (1) all indebtedness of the
Corporation (including indebtedness of others guaranteed by the Corporation)
other than First Fidelity Subordinated Notes, whether previously outstanding or
thereafter created, incurred or assumed, which is (a) for money borrowed, or
(b) evidenced by a note or similar instrument given in connection with the
acquisition of any businesses, properties or assets of any kind, (2)
obligations of the Corporation as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles and leases of property or assets made as part of any sale
and lease-back transaction to which the Corporation is a party, and (3)
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligation, unless in any case in the instrument creating or
evidencing any such indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation is not superior
in right of payment to First Fidelity Subordinated Notes. (Section 101).
The First Fidelity Subordinated Indenture does not limit or prohibit the
incurrence of Senior Indebtedness or Other Financial Obligations, which may
include indebtedness that is senior to the First Fidelity Subordinated Notes
but subordinate to other obligations of the Corporation.
Subordination Provisions Specific to First Fidelity 6.80% Subordinated
Notes. If upon any payment or distribution of assets to creditors, there
remains, after giving effect to such subordination provisions in favor of the
holders of Senior Indebtedness, any amounts of cash, property or securities
available for payment or distribution in respect of the First Fidelity 6.80%
Subordinated Notes ("Excess Proceeds") and if, at such time, any Entitled
Persons (as defined below) in respect of Other Financial Obligations have not
received payment in full of all amounts due or to become due on or in respect
of such Other Financial Obligations, then such Excess Proceeds shall first be
applied to pay or provide for the payment in full of such Other Financial
Obligations before any payment or distribution may be made in respect of the
First Fidelity 6.80% Subordinated Notes.
By reason of the obligation of the holders of First Fidelity Subordinated
Notes to pay over any Excess Proceeds to Entitled Persons in respect of Other
Financial Obligations, in the event of the insolvency of the Corporation,
holders of the First Fidelity 9 5/8% Subordinated Notes may recover less,
ratably, than Entitled Persons in respect of Other Financial Obligations and
may recover more, ratably, than the holders of the First Fidelity 6.80%
Subordinated Notes. The Corporation's obligations under the First Fidelity
Subordinated Notes shall rank pari passu in right of payment with each other,
subject to the obligations of the holders of the First Fidelity 6.80%
Subordinated Notes to pay over any Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations as provided in the First Fidelity
Subordinated Indenture.
The First Fidelity Subordinated Indenture permits, at any time, the
modification or elimination of the rights of Entitled Persons in respect of
Other Financial Obligations described above without the consent of any Entitled
Persons in respect of Other Financial Obligations.
"Other Financial Obligations" is defined with respect to the First
Fidelity 6.80% Subordinated Notes as (1) obligations of the Corporation under
direct credit substitutes, (2) obligations of, or guaranteed by, the
Corporation for purchased money or funds, (3) any deferred obligation of, or
guaranteed by, the Corporation incurred in connection with the acquisition of
any business, properties or assets not evidenced by a note or similar
instrument given in connection therewith, and (4) all obligations of the
Corporation to make payment pursuant to the terms of financial instruments,
such as (a) securities contracts and foreign currency exchange contracts, (b)
derivative instruments, such as swap agreements (including interest rate and
foreign exchange rate swap agreements), cap agreements, floor agreements,
collar agreements, interest rate agreements, foreign exchange rate agreements,
options, commodity futures contracts and commodity option contracts, and (c)
financial instruments similar to those in (4)(a) and (b) above; provided that
Other Financial Obligations do not
34
<PAGE>
include (A) obligations on account of Senior Indebtedness, and (B) obligations
on account of indebtedness for money borrowed ranking pari passu with or
subordinate to the First Fidelity Subordinated Notes.
"Entitled Persons" is defined in the First Fidelity Subordinated Indenture
as any person who is entitled to payment pursuant to the terms of Other
Financial Obligations. (Section 101).
As of , 1998, the Corporation had approximately $ million aggregate
principal amount of indebtedness outstanding that qualified as Senior
Indebtedness, and $ million aggregate principal amount of indebtedness that
qualified as Other Financial Obligations, under the First Fidelity Subordinated
Indenture. The Corporation expects from time to time to issue additional
indebtedness and to incur other obligations that may constitute Senior
Indebtedness or other Financial Obligations under the First Fidelity
Subordinated Indenture.
Defeasance under the First Fidelity Subordinated Indenture
The First Fidelity 9 5/8% Subordinated Notes provide that the Corporation
may discharge its indebtedness and its obligations or certain of its
obligations under the First Fidelity Subordinated Indenture with respect to
such series by depositing funds or Government Obligations (as defined below)
with the First Fidelity Subordinated Trustee as set forth below. The First
Fidelity 6.80% Subordinated Notes are not subject to the following defeasance
provisions. The term "Government Obligations" as used herein means United
States government securities or securities of government agencies backed by the
full faith and credit of such government.
Defeasance and Discharge. The First Fidelity Subordinated Indenture
provides that, if so specified with respect to the debt securities of any
series issued thereunder and the Corporation deposits or causes to be deposited
with the First Fidelity Subordinated Trustee, irrevocably, in trust, money or
Government Obligations, which through the payment of principal, premium, if
any, and interest in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay and discharge in the same currency
as such obligation (1) all principal and premium, if any, and interest on the
outstanding debt securities of such series on the stated maturity of such
principal and premium, if any, or interest (or on the redemption date of the
outstanding debt securities of such series, if applicable), and (2) any
mandatory (or, if applicable, optional) sinking fund payments or analogous
payments applicable to the outstanding debt securities of such series on the
day on which such payments are due and payable, then the First Fidelity
Subordinated Indenture will cease to be of further effect with respect to such
series (except for certain obligations to compensate, reimburse and indemnify
the First Fidelity Subordinated Trustee, to register the transfer or exchange
of debt securities, to replace stolen, lost or mutilated debt securities, to
maintain paying agencies and to hold monies for payment in trust), and the
Corporation will be deemed to have satisfied and discharged the First Fidelity
Subordinated Indenture with respect to such series. Such a trust may only be
established if, among other things, (1) the Corporation has delivered to the
First Fidelity Subordinated Trustee an opinion of counsel to the effect that
the Corporation has received from, or there has been published by the United
States Internal Revenue Service a ruling which in the opinion of such counsel
establishes that, or to the effect that such counsel has otherwise determined
that, the holders of debt securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred; and (2) if the debt
securities of such series are then listed on any domestic or foreign securities
exchange, the Corporation has delivered to the First Fidelity Subordinated
Trustee an opinion of counsel to the effect that such deposit, defeasance and
discharge will not cause such debt securities to be delisted. (Section 403). In
the event of any such defeasance, holders of debt securities of such series
would be able to look only to such trust fund for payment of principal and
premium, if any, and interest, if any, on their debt securities.
Defeasance of Certain Obligations. The First Fidelity Subordinated
Indenture provides that, if so specified with respect to the debt securities of
any series issued thereunder and the Corporation deposits or causes to be
deposited with the First Fidelity Subordinated Trustee, irrevocably, in trust,
money or Government Obligations, which through the payment of principal,
premium if any, and interest in respect thereof in accordance with their terms
will provide money in an amount sufficient to pay and discharge in the same
currency as such obligation (1) all principal and premium, if any, and interest
on the outstanding debt securities of such series on the stated maturity of
such principal and premium, if any, or interest (or on the redemption date of
35
<PAGE>
the outstanding debt securities of such series, if applicable), and (2) any
mandatory (or, if applicable, optional) sinking fund payments or analogous
payments applicable to the outstanding debt securities of such series on the
day on which such payments are due and payable, then the Corporation may omit
to comply with the restrictive covenants described under ";Restriction on Sale
or Issuance of Stock of Major Subsidiary Banks and Subsidiaries Owning Major
Subsidiary Banks" and ";Restriction on Merger by or Sale of Assets of Major
Subsidiary Banks" above and any such omission shall not be an Event of Default
with respect to the debt securities of such series under the First Fidelity
Subordinated Indenture. The obligations of the Corporation under the First
Fidelity Subordinated Indenture and the debt securities of such series other
than with respect to such covenants shall remain in full force and effect. Such
a trust may be established only if, among other things, (1) the Corporation has
delivered to the First Fidelity Subordinated Trustee an opinion of counsel to
the effect that the holders of the debt securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and defeasance of certain obligations and will be subject to
Federal income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit and defeasance had not occurred;
and (2) if the debt securities of such series are then listed on any domestic
or foreign securities exchange, the Corporation has delivered to the First
Fidelity Subordinated Trustee an opinion of counsel to the effect that such
deposit and defeasance will not cause such debt securities to be delisted.
(Section 1011).
In the event the Corporation exercises its option to omit compliance with
the covenants referred to in the preceding paragraph with respect to the debt
securities of any series as described above and the debt securities of such
series are declared due and payable because of the occurrence of any Event of
Default, then the amount of money and Government Obligations on deposit with
the First Fidelity Subordinated Trustee will be sufficient to pay amounts due
on the debt securities of such series of such series at the time of the
acceleration of the maturity thereof resulting from such Event of Default. The
Corporation shall in any event remain liable for such payments as provided in
the First Fidelity Subordinated Indenture. (Section 1011).
Effect of Defeasance. If the Corporation exercises its option to defease
and discharge outstanding debt securities of a particular series issued under
the First Fidelity Subordinated Indenture, payment of the outstanding debt
securities of such series may not be accelerated because of an Event of
Default. If the Corporation exercises its option to defease certain obligations
with respect to outstanding debt securities of a particular series, payment of
the outstanding debt securities of such series may not be accelerated upon the
failure of the Corporation to comply with the covenants described under
";Restriction on Sale or Issuance of Stock of Major Subsidiary Banks and
Subsidiaries Owning Major Subsidiary Banks" and ";Restriction on Merger by or
Sale of Assets of Major Subsidiary Banks" above. The subordination provisions
described under ";Subordination", above are made subject to the provisions for
defeasance and discharge and defeasance of certain obligations described above.
Upon the defeasance and discharge or defeasance of certain obligations with
respect to debt securities of a particular series, the debt securities of such
series would cease to be so subordinated.
Substitution of Collateral. The First Fidelity Subordinated Indenture
provides that, if so specified with respect to the debt securities of any
series issued thereunder, the Corporation will be permitted at any time to
withdraw any Government Obligations deposited pursuant to the foregoing
defeasance provisions, provided that the Corporation in substitution therefor
has previously deposited money and/or Government Obligations which would then
be sufficient to satisfy the Corporation's payment obligations in respect of
the debt securities of such series in the manner contemplated by such
defeasance provisions. (Section 402).
Dominion Subordinated Capital Notes
The Corporation acquired Dominion on March 1, 1993, by merging Dominion
with and into the Corporation.
General
The Dominion 9 5/8% Subordinated Capital Notes due June 15, 1999 (the
"Dominion Subordinated Capital Notes"), were issued on June 24, 1987 and will
mature on June 15, 1999. The Dominion Subordinated Capital Notes were issued
under an Indenture, dated as of June 24, 1987 (as amended and supplemented, the
"Dominion Subordinated Indenture"), between Dominion and First Trust of New
York, N.A., as Trustee (the "Dominion Subordinated Trustee"), as successor to
Morgan Guaranty Trust Company of New York.
36
<PAGE>
The Dominion Subordinated Capital Notes bear interest at the rate of
9 5/8% per annum, payable semiannually on June 15 and December 15 each year to
the registered holders at the close of business on the June 1 and December 1
preceding such June 15 and December 15, respectively. The Dominion Subordinated
Capital Notes are limited to $75 million aggregate principal amount.
The Dominion Subordinated Capital Notes have been issued in registered
form only, without coupons. Principal and interest on the Dominion Subordinated
Capital Notes will be payable, and the Dominion Subordinated Capital Notes will
be transferable, at the corporate trust office maintained by the Dominion
Subordinated Trustee in the Borough of Manhattan, The City of New York and at
the office of FUNB in Roanoke, Virginia. In addition, the Corporation may make
payments of interest by check mailed to the person entitled thereto.
Dominion Subordinated Indenture
Redemption of Dominion Subordinated Capital Notes upon Certain Events
Relating to Federal Income Taxes. The Dominion Subordinated Capital Notes may
not be redeemed prior to maturity, except that the Dominion Subordinated
Capital Notes are subject to redemption for cash at any time, in whole but not
in part, at the option of the Corporation, at a redemption price equal to 100
percent of the principal amount thereof, together with accrued interest to the
date fixed for redemption, upon not less than 30 days' written notice mailed to
the holders thereof, if the Corporation shall in good faith determine that it
is not, or there is a substantial probability that it will not be, allowed to
deduct payments of interest to holders of the Dominion Subordinated Capital
Notes on the grounds that the Dominion Subordinated Capital Notes do not
constitute indebtedness for purposes of the Code or any successor provision as
a result of (1) any change in or amendment to, or officially proposed change in
or amendment to, the laws (or any regulations or rulings promulgated
thereunder) of the United States or any change in, or officially proposed
change in, operation or official interpretation of such laws, rulings or
regulations; (2) any action taken by a taxing authority of the United States on
or after the date of issuance of the Dominion Subordinated Capital Notes, which
action is generally applied or which is taken with respect to the Corporation;
(3) a decision rendered by a court of competent jurisdiction in the United
States, whether or not such decision was rendered with respect to the
Corporation; or (4) a technical advice memorandum or published ruling issued by
the United States Internal Revenue Service relating to obligations
substantially similar to the Dominion Subordinated Capital Notes. Prior to the
mailing of any notice of redemption pursuant to this paragraph, the Corporation
shall deliver to the Dominion Subordinated Trustee an opinion of counsel that
the conditions precedent to the right to so redeem have occurred. (Section 201
and Article Eleven).
Events of Default and Limited Rights of Acceleration. The Dominion
Subordinated Indenture defines an "Event of Default" as being only certain
events involving the bankruptcy, insolvency or reorganization of the
Corporation. (Section 501). If at any time prior to the payment of the
principal of the Dominion Subordinated Capital Notes in cash, or, if required,
by the delivery of Capital Securities, an Event of Default shall occur and be
continuing, either the Dominion Subordinated Trustee or the holders of at least
25 percent in aggregate principal amount of the Dominion Subordinated Capital
Notes at that time outstanding may declare the principal amount of all the
Dominion Subordinated Capital Notes to be due and payable immediately in cash.
(Section 502). Enforcement of any such right to payment in cash would, in the
event of the bankruptcy or insolvency of the Corporation, be subject to the
broad equity powers of a Federal bankruptcy court and to the determination by
that court of the nature and status of the payment claims of the holders of the
Dominion Subordinated Capital Notes. At any time after a declaration of
acceleration with respect to Dominion Subordinated Capital Notes has been made,
but before a judgment or decree based on acceleration has been obtained, the
holders of a majority in aggregate principal amount of Dominion Subordinated
Capital Notes at that time outstanding may, under certain circumstances,
rescind and annul such acceleration. (Section 502). For information as to
waiver of defaults see ";Modification and Waiver", below.
The Dominion Subordinated Indenture does not provide for any right of
acceleration of the payment of principal of the Dominion Subordinated Capital
Notes upon a default in the payment of principal or interest or in the
performance of any covenant or agreement in the Dominion Subordinated Capital
Notes or Dominion Subordinated Indenture. The Dominion Subordinated Indenture
defines a "Default" as being (1) the failure to
37
<PAGE>
pay any interest on any Dominion Subordinated Capital Notes when due, whether
or not such payment is prohibited by the subordination provisions of the
Dominion Subordinated Indenture, (2) the failure to pay principal (including
any obligation to exchange Capital Securities for Dominion Subordinated Capital
Notes) on any Dominion Subordinated Capital Notes when due, whether or not such
payment or exchange is prohibited by the subordination provisions of the
Dominion Subordinated Indenture, or (3) the failure to perform any other
covenant if continued for 30 days after written notice is given as provided in
the Dominion Subordinated Indenture. If a Default shall occur and be
continuing, the Dominion Subordinated Trustee may, subject to certain
limitations and conditions, seek to enforce payment of such principal or
accrued interest or the performance of such covenant or agreement. (Section
503).
Modification and Waiver. Modifications and amendments of the Dominion
Subordinated Indenture may be made by the Corporation and the Dominion
Subordinated Trustee with the consent of the holders of a majority in aggregate
principal amount of the Dominion Subordinated Capital Notes at that time
outstanding; provided, however, that no such modification or amendment may,
without the consent of the holders of all Dominion Subordinated Capital Notes
affected thereby, (1) change the stated maturity date of the principal of, or
any installment of interest on, any Dominion Subordinated Capital Note; (2)
reduce the principal amount of, or rate of interest on, any Dominion
Subordinated Capital Note; (3) change the place or currency of payment of
principal of, or interest on, any Dominion Subordinated Capital Note; (4)
impair the right to institute suit for the enforcement of any payment
(including the delivery of Capital Securities exchanged for Dominion
Subordinated Capital Notes) on or with respect to any Dominion Subordinated
Capital Note; (5) modify the subordination provisions in a manner adverse to
the holders of Dominion Subordinated Capital Notes; (6) impair any right to the
delivery of Capital Securities in exchange for any Dominion Subordinated
Capital Note or to the obligation of the Corporation to any holder to effect
the Secondary Offering (as defined in the Dominion Subordinated Indenture); or
(7) reduce the percentage in principal amount of Dominion Subordinated Capital
Notes at that time outstanding, the consent of whose holders is required for
modification or amendment of the Dominion Subordinated Indenture or for waiver
of compliance with certain provisions of the Dominion Subordinated Indenture or
for waiver of certain defaults. (Section 902).
The holders of a majority in aggregate principal amount of the Dominion
Subordinated Capital Notes at that time outstanding may, on behalf of all
holders of Dominion Subordinated Capital Notes, waive compliance by the
Corporation with certain restrictive provisions of the Dominion Subordinated
Indenture. (Section 1008). The holders of a majority in aggregate principal
amount of the Dominion Subordinated Capital Notes may, on behalf of all holders
of Dominion Subordinated Capital Notes, waive any past default under the
Dominion Subordinated Indenture with respect to Dominion Subordinated Capital
Notes, except a default in the payment (including any obligation to exchange
Dominion Subordinated Capital Notes for Capital Securities) of principal or
interest or a default in respect of a covenant or provision in the Dominion
Subordinated Indenture which cannot be modified or amended without the consent
of each holder affected thereby. (Section 513).
Indemnification. In connection with any Secondary Offering of the Capital
Securities issued in exchange for any Dominion Subordinated Capital Notes, the
Corporation and the holders of Dominion Subordinated Capital Notes will
indemnify each other from liability as described below.
Each holder of Dominion Subordinated Capital Notes for whom Capital
Securities are being offered in any Secondary Offering will agree, to the
extent enforceable under applicable law, to indemnify and hold harmless the
Corporation, the Exchange Agent (as defined in the Dominion Subordinated
Indenture), the Dominion Subordinated Trustee, any other such holder and any
underwriter, agent or other similar person from and against any and all losses,
claims, damages and liabilities resulting from or based upon any untrue
statement or alleged untrue statement of any material fact contained in any
notice of exchange, any offering memorandum or selling document or registration
statement relating to the Secondary Offering, any preliminary prospectus or
prospectus contained therein, or any amendment thereof or supplement thereto,
or resulting from or based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, which untrue statement, alleged untrue
statement, omission or alleged omission is made therein (1) in reliance upon
and in conformity with any written information furnished to the Corporation by
or on behalf of such holder specifically for use in connection with the
preparation thereof, or (2) because of such holder's failure to advise the
Corporation in writing that any of the assumptions described in the notice of
exchange is incorrect. (Section 1304).
38
<PAGE>
The Corporation will agree, to the extent enforceable under applicable
law, to indemnify and hold harmless, in connection with any Secondary Offering,
each holder of Dominion Subordinated Capital Notes for whose account Capital
Securities are being offered and sold and any underwriter agent, the Dominion
Subordinated Trustee, the Exchange Agent or other similar person from and
against any and all losses, claims, damages and liabilities resulting from or
based upon any untrue statement or alleged untrue statement of any material
fact contained in any notice of exchange, any offering memorandum or selling
document or registration statement relating to the Secondary Offering, any
preliminary prospectus or prospectus contained therein, or any amendment
thereof or supplement thereto, or resulting from or based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading, or resulting from
the Corporation's failure to register the Capital Securities with or gain the
approval for the sale of the Capital Securities of any appropriate governmental
authority, provided, however, that the Corporation will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement, alleged untrue statement,
omission or alleged omission made therein (1) in reliance upon and in
conformity with any written information furnished to the Corporation by or on
behalf of such holder specifically for use in connection with the preparation
thereof, or (2) because of such holder's failure to advise the Corporation in
writing that any of the assumptions described in the notice of exchange is
incorrect. In connection with any Secondary Offering, the Corporation agrees to
obtain the usual indemnification of such holder of Dominion Subordinated
Capital Notes for the account of whom Capital Securities are being offered and
sold in any Secondary Offering from any underwriter, agent or other similar
person. (Section 1308).
Consolidation, Merger and Sale of Assets. The Corporation may not
consolidate with or merge into any other corporation or transfer its properties
and assets substantially as an entirety to any person unless (1) the
corporation formed by such consolidation or into which the Corporation is
merged or the person to which the properties and assets of the Corporation are
so transferred shall be a corporation organized and existing under the laws of
the United States, any state thereof or the District of Columbia and shall
expressly assume the payment of the principal of and interest on the Dominion
Subordinated Capital Notes and the performance of the other covenants of the
Corporation under the Dominion Subordinated Indenture, (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 occurred and be continuing, and (3) certain other
conditions are met. (Section 801).
Restriction on Sale or Issuance of Capital Stock of Major Constituent
Bank. The Dominion Subordinated Indenture prohibits the issuance, sale or other
disposition of shares of, or securities convertible into, Voting Stock (as
defined in the Dominion Subordinated Indenture) of a Major Constituent Bank (as
defined below with respect to the Dominion Subordinated Indenture), the merger
or consolidation of any Major Constituent Bank with or into any other
corporation, and the sale or other disposition of all or substantially all of
the assets of any Major Constituent Bank, if, after giving effect to any such
transaction and to the issuance of the maximum number of shares of Voting Stock
issuable upon the conversion of all such convertible securities, the
Corporation would own, directly or indirectly, 80 percent or less of the shares
of Voting Stock of such Major Constituent Bank, its successor in merger or
consolidation or the person that acquires all or substantially all of its
assets, except that the covenant will not prohibit sales or other dispositions:
(1) made in compliance with an order of a court or regulatory authority of
competent jurisdiction or made as a condition imposed by such court or
authority to the receipt of such order or to the acquisition by the
Corporation, directly or indirectly, of any other banking institution or entity
the activities of which are legally permissible for a bank holding company or a
subsidiary thereof to engage in; or (2) if such Major Constituent Bank, having
obtained any necessary regulatory approvals, unconditionally guarantees payment
when due of the principal of and interest on the Dominion Subordinated Capital
Notes. (Section 1006).
"Major Constituent Bank" is defined in the Dominion Subordinated Indenture
as any banking subsidiary of the Corporation whose consolidated banking assets
constitute 30 percent or more of the Corporation's consolidated banking assets.
As of the date of this Prospectus, the term Major Constituent Bank includes
FUNB.
Control by Holders. Subject to the provisions of the Dominion Subordinated
Indenture relating to the duties of the Dominion Subordinated Trustee, in case
an Event of Default or Default shall occur and be continuing, the Dominion
Subordinated Trustee will be under no obligation to exercise any of its rights
or powers under the Dominion Subordinated Indenture at the request or direction
of any of the holders of the Dominion
39
<PAGE>
Subordinated Capital Notes unless such holders shall have offered reasonable
indemnity to the Dominion Subordinated Trustee. (Section 603). Subject to such
provisions for the indemnification of the Dominion Subordinated Trustee, the
holders of a majority in aggregate principal amount of the Dominion
Subordinated Capital Notes at that time outstanding will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Dominion Subordinated Trustee or exercising any trust or power
conferred on the Dominion Subordinated Trustee, provided that such direction is
not in conflict with any rule of law or with the Dominion Subordinated
Indenture, the Dominion Subordinated Trustee determines that such proceeding
will not involve it in any personal liability and the Dominion Subordinated
Trustee may take any other action deemed proper by it which is not inconsistent
with such direction (Section 512).
No holder of any Dominion Subordinated Capital Note will have any right to
institute any proceeding with respect to the Dominion Subordinated Indenture or
for any remedy thereunder, unless such holder shall have previously given to
the Dominion Subordinated Trustee written notice of a continuing Event of
Default or Default and unless also the holders of at least 25 percent in
aggregate principal amount of the Dominion Subordinated Capital Notes at that
time outstanding shall have made written request, and offered reasonable
indemnity, to the Dominion Subordinated Trustee to institute such proceeding as
trustee, and the Dominion Subordinated Trustee shall not have received from the
holders of a majority in aggregate principal amount of the Dominion
Subordinated Capital Notes at that time outstanding a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days. (Section 507). However, such limitations do not apply to a suit
instituted by a holder of a Dominion Subordinated Capital Note for enforcement
of payment of the principal of or interest on such Dominion Subordinated
Capital Note on or after the respective due dates expressed in such Dominion
Subordinated Capital Note or for the enforcement of the exchange of such
Dominion Subordinated Capital Note for Capital Securities and the sale of such
Capital Securities in a Secondary Offering at the time and in the manner
provided for in the Dominion Subordinated Indenture. (Section 508).
Reports by the Corporation. The Corporation is required to furnish to the
Dominion Subordinated Trustee annually a statement as to the performance by the
Corporation of certain of its obligations under the Dominion Subordinated
Indenture and as to any default in such performance. (Section 1007).
Subordination. The obligations of the Corporation to make any payment
(including the obligation to deliver Capital Securities exchanged for Dominion
Subordinated Capital Notes as described above) on account of the principal of
and interest on the Dominion Subordinated Capital Notes shall be subordinate
and junior in right of payment to the Corporation's obligations to the holders
of Senior Indebtedness (as defined below) of the Corporation. (Section 1201).
"Senior Indebtedness" is defined in the Dominion Subordinated Indenture as the
principal of and premium, if any, and interest on (1) all "indebtedness for
money borrowed" by the Corporation, whether previously outstanding or
thereafter created, assumed or incurred, except the Dominion Subordinated
Capital Notes, the Corporation's guaranty of a 6 3/4% Note due 2001 issued by
Dominion Bankshares Properties, Inc., such indebtedness as is by its terms
expressly stated to rank pari passu in right of payment with the Dominion
Subordinated Capital Notes, and (2) any deferral, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" is defined
in the Dominion Subordinated Indenture to mean any obligation of, or any
obligation guaranteed by, the Corporation for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation of or guaranteed by the Corporation
for the payment of the purchase price of property or assets. (Article Twelve).
The Dominion Subordinated Indenture does not limit the amount of debt,
including Senior Indebtedness, that may be incurred by the Corporation or any
of its subsidiaries and does not contain financial or any similar restrictive
covenants.
No exchange for Capital Securities or payment on account of principal or
interest on the Dominion Subordinated Capital Notes shall be made by the
Corporation unless full payment of amounts then due for principal (and premium,
if any), sinking funds, and interest on Senior Indebtedness of the Corporation
has been made or duly provided for in accordance with its terms and, at the
time of such payment or exchange or immediately after giving effect thereto,
there shall not exist with respect to any Senior Indebtedness of the
Corporation an event of default 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 Dominion Subordinated Trustee, and
such event of default shall not have been cured or waived. (Section 1202). Upon
any distribution of the assets of the Corporation upon dissolution, winding up,
liquidation or reorganization, whether voluntary
40
<PAGE>
or involuntary, or in bankruptcy, insolvency, receivership, conservatorship or
other proceedings, the holder of Senior Indebtedness will be entitled to
receive payment in full of principal, premium, if any, and interest before any
payment is made on or exchange is made for the Dominion Subordinated Capital
Notes. Subject to the payment in full of all Senior Indebtedness, the holders
of Dominion Subordinated Capital Notes are to be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or distributions of
assets of the Corporation applicable to Senior Indebtedness until the Dominion
Subordinated Capital Notes are paid in full.
As of , 1998, the Corporation had approximately $ million aggregate
principal amount of indebtedness outstanding that qualified as Senior
Indebtedness under the Dominion Subordinated Indenture. The Corporation expects
from time to time to issue additional indebtedness and to incur other
obligations that may constitute Senior Indebtedness under the Dominion
Subordinated Indenture.
Certain Federal Income Tax Consequences of Dominion Subordinated Capital
Notes
The United States Internal Revenue Service has issued Revenue Ruling
85-119 to the effect that "mandatory convertible debt" issued by a bank holding
company under the circumstances described in the ruling is debt of the bank
holding company for federal income tax purposes. The Dominion Subordinated
Capital Notes are substantially similar to the mandatory convertible debt
described in the ruling and under current cases, regulations and rulings,
should represent debt of the Corporation with the result that interest payable
on the Dominion Subordinated Capital Notes should be taxable as interest rather
than dividends for federal income tax purposes. However, revenue rulings may be
relied upon as precedent only as to the specific fact pattern of the ruling,
and the Dominion Subordinated Capital Notes are not identical to the mandatory
convertible debt described in the ruling.
A holder of Dominion Subordinated Capital Notes will have a basis in such
Dominion Subordinated Capital Note generally equal to the amount paid for such
Dominion Subordinated Capital Note. Upon the sale, redemption, or retirement of
the Dominion Subordinated Capital Note, gain or loss will be recognized for
federal income tax purposes equal to the difference between the amount realized
on such sale, redemption or retirement and such holder's tax basis in the
Dominion Subordinated Capital Note, except that consideration for accrued
interest which has not been taxed as income to such holder will generally
result in interest income to such holder equal to the fair market value of such
consideration.
The tax effects of the purchase of the Dominion Subordinated Capital Notes
under state and local tax laws may vary. In addition, the preceding discussion
of Federal income tax consequences is a summary of general information.
Accordingly, purchasers are advised to consult their own tax advisors with
respect to Federal, state, and local income tax effects. Purchasers of Dominion
Subordinated Capital Notes who are nonresident alien individuals, foreign
corporations, or other non-United States persons should also consult their own
advisors with respect to the possible applicability of United States
withholding and other taxes upon income realized in respect of the Dominion
Subordinated Capital Notes.
Meridian 7 7/8% Subordinated Debentures
General
The Meridian 7 7/8% Subordinated Debentures due July 15, 2002 (the
"Meridian 7 7/8% Subordinated Debentures"), were issued under an Indenture,
dated as of March 9, 1992 (as amended and supplemented, the "Meridian
Subordinated Indenture"), between Meridian and The First National Bank of
Chicago, as subordinated trustee (the "Meridian Subordinated Trustee").
The Meridian 7 7/8% Subordinated Debentures were issued on July 22, 1992
and will mature on July 15, 2002. The Meridian 7 7/8% Subordinated Debentures
bear interest at the rate of 7 7/8% per annum, payable semiannually on January
15 and July 15 each year to the registered holders at the close of business on
the January 1 and July 1 preceding such January 15 and July 15, respectively.
The Meridian 7 7/8% Subordinated Debentures are limited to $100 million
aggregate principal amount.
Meridian Subordinated Indenture
Except as expressly limited therein to the Meridian Senior Indenture, the
description of the Meridian Indentures set forth under "Summary of Assumed
Senior Debt Securities -- Meridian 6 5/8% Senior Notes;
41
<PAGE>
Meridian Indentures" applies to the Meridian Subordinated Indenture as well.
Set forth below is a description of certain additional provisions of the
Meridian Subordinated Indenture.
Acceleration. The Meridian Subordinated Indenture does not permit
acceleration of the payment of principal of the Meridian 7 7/8% Subordinated
Debentures upon the occurrence of an "Event of Default" described
in clauses (1), (2) or (3) of the first paragraph under "Summary of Assumed
Senior Debt Securities -- Meridian 6 5/8% Senior Notes; Meridian Indentures;
Events of Default; Acceleration; Waiver," above. (Section 501). The Meridian
Subordinated Indenture provides that if any Event of Default under clause (4)
of such paragraph occurs and is continuing with respect to the Meridian 7 7/8%
Subordinated Debentures, then either the Meridian Subordinated Trustee or the
holders of not less than 25 percent in principal amount of the outstanding
Meridian 7 7/8% Subordinated Debentures may declare the principal amount of all
of the Meridian 7 7/8% Subordinated Debentures to be due and payable
immediately.
Subordination. The Meridian 7 7/8% Subordinated Debentures will be
subordinate and junior in right of payment to all Senior Indebtedness (as
defined below) of the Corporation. (Section 101). "Senior Indebtedness" is
defined in the Meridian Subordinated Indenture as any obligation of the
Corporation to its creditors, whether previously outstanding or subsequently
incurred, except (1) any obligation as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligation is not Senior Indebtedness, and (2) subordinated
debt securities issued under the Meridian Subordinated Indenture.
In the event that the Corporation shall default in the payment of any
principal of or interest on any Senior Indebtedness of the Corporation when due
and payable, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment shall be
made or agreed to be made on account of the principal of or interest on the
Meridian 7 7/8% Subordinated Debentures, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Meridian 7 7/8%
Subordinated Debentures. If certain events of bankruptcy, insolvency or
reorganization of the Corporation occur, all Senior Indebtedness of the
Corporation shall first be paid in full before any payment or distribution
shall be made to any holder of any of the Meridian 7 7/8% Subordinated
Debentures on account thereof. (Section 1301).
As of , 1998, the Corporation had approximately $ million
aggregate principal amount of indebtedness outstanding that qualified as Senior
Indebtedness under the Meridian Subordinated Indenture. The Corporation expects
from time to time to issue additional indebtedness and to incur other
obligations that may constitute Senior Indebtedness under the Meridian
Subordinated Indenture.
SUMMARY OF TMS DEBT SECURITIES AND GUARANTEES
The Corporation acquired TMS on June 30, 1998. TMS continues to operate as
a wholly-owned subsidiary of the Corporation. Pursuant to supplements to the
TMS Indentures (as defined herein), the Corporation has guaranteed the payment
of the obligations on the TMS Debt Securities (as defined herein) to the extent
set forth under " -- The Guarantees" below.
The following descriptions of the terms of the particular TMS Debt
Securities (which term includes the TMS Senior Notes and the TMS Subordinated
Notes, each as defined herein) and the Guarantees are summaries of the
provisions thereof, do not purport to be complete and are qualified in their
entirety by reference to the Applicable Indentures, the applicable TMS Debt
Securities and the Guarantees.
<TABLE>
<CAPTION>
Series Issue Dates Interest Payment Dates Regular Record Dates
- ------------------------------------ ------------------ ------------------------- -----------------------
<S> <C> <C> <C>
8.05% Senior Notes of TMS due
April 15, 2002 ................... April 15, 1997 April 15 and October 15 April 1 and October 1
8.375% Senior Notes TMS due
April 15, 2004 ................... April 15, 1997 April 15 and October 15 April 1 and October 1
7.30% Subordinated Notes of
TMS due December 1, 2002 ......... December 1, 1997 June 1 and December 1 May 15 and November 15
7.95% Subordinated Notes of
TMS due December 1, 2007 ......... December 1, 2007 June 1 and December 1 May 15 and November 15
</TABLE>
42
<PAGE>
TMS Senior Notes
General
The TMS Senior Notes (which term includes the TMS 8.05% Senior Notes and
the TMS 8.375% Senior Notes, each as defined below) were issued under an
Indenture, dated as of April 15, 1997 (as amended and supplemented, the "TMS
Senior Indenture", and together with the TMS Subordinated Indenture (as defined
below), the "TMS Indentures") between TMS and The Chase Manhattan Bank, as
Trustee (the "TMS Senior Trustee", and together with the TMS Subordinated
Trustee (as defined below), the "TMS Trustees"). Pursuant to a supplemental
indenture, dated as of June 30, 1998 (the "Senior Guarantee", and together with
the Subordinated Guaranteee (as defined below), the "Guarantees"), to the TMS
Senior Indenture, the Corporation has guaranteed the payment of the obligations
of TMS pursuant to the TMS Senior Notes. See " -- The Guarantees", below.
TMS 8.05% Senior Notes
The TMS 8.05% Notes due April 15, 2002 (the "TMS 8.05% Senior Notes") were
issued on April 15, 1997 and will mature on April 15, 2002. The TMS 8.05%
Senior Notes bear interest at the rate of 8.05% per annum, payable semiannually
on April 15 and October 15 of each year to the registered holders at the close
of business on the April 1 and October 1 preceding such April 15 or October 15,
respectively. The TMS 8.05% Senior Notes are limited to $175 million aggregate
principal amount.
TMS 8.375% Senior Notes
The TMS 8.375% Notes due April 15, 2004 (the "TMS 8.375% Senior Notes")
were issued on April 15, 1997 and will mature on April 15, 2004. The TMS 8.375%
Senior Notes bear interest at the rate of 8.375% per annum, payable
semiannually on April 15 and October 15 of each year to the registered holders
at the close of business on the April 1 and October 1 preceding such April 15
or October 15, respectively. The TMS 8.375% Senior Notes are limited to $125
million aggregate principal amount.
TMS Indentures
The following description of certain terms of the TMS Indentures applies
to the TMS Senior Indenture and, except as expressly limited to the TMS Senior
Indenture, also applies to the TMS Subordinated Indenture.
Discharge, Legal Defeasance and Covenant Defeasance. The Applicable
Indenture with respect to the TMS Debt Securities of any series issued
thereunder may be discharged, subject to certain terms and conditions, when
either all TMS Debt Securities of such series have been delivered to the
Applicable Trustee for cancellation, or all TMS Debt Securities of such series
not theretofore delivered to the Applicable Trustee for cancellation have
become due and payable, or will become due and payable at their stated maturity
within one year, and TMS has irrevocably deposited or caused to be deposited
with the Applicable Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such TMS Debt
Securities for principal (and premium, if any) and interest to the date of such
deposit (in the case of TMS Debt Securities which have become due and payable)
or to the stated maturity, as the case may be; provided, however, in the event
a petition for relief under the applicable Federal or state bankruptcy,
insolvency or other similar law is filed with respect to TMS within 91 days
after the deposit and the Applicable Trustee is required to return the
deposited money to TMS, the obligations of TMS under the Applicable Indenture
with respect to such TMS Debt Securities will not be deemed terminated or
discharged; (2) TMS has paid or caused to be paid all other sums payable under
the Applicable Indenture by TMS; (3) TMS has delivered to the Applicable
Trustee an officers' certificate and an opinion of counsel each stating that
all conditions precedent therein provided relating to the satisfaction and
discharge of the Applicable Indenture with respect to such series have been
complied with; and (4) TMS has delivered to the Applicable Trustee an opinion
of counsel or a ruling of the United States Internal Revenue Service to the
effect that such deposit and discharge will not cause the holders of the TMS
Debt Securities of the series to recognize income, gain or loss for Federal
income tax purposes. (Section 4.01).
If provision is made for the defeasance of TMS Debt Securities of a
series, and if the TMS Debt Securities of such series are registered securities
and denominated and payable only in United States dollars, then
43
<PAGE>
the provisions of each TMS Indenture relating to defeasance shall be applicable
for the defeasance of the TMS Debt Securities of such series. (Section 15.01).
At TMS's option, either (a) TMS shall be deemed to have been Discharged
(as defined below) from its obligations with respect to TMS Debt Securities of
any series ("legal defeasance option"), or (b) TMS shall cease to be under any
obligation to comply with any obligation of TMS in the Applicable Indenture
including any other covenants applicable to the TMS Debt Securities which are
subject to covenant defeasance ("covenant defeasance option") at any time after
the applicable conditions set forth below have been satisfied: (1) TMS shall
have deposited or caused to be deposited irrevocably with the Applicable
Trustee as trust funds in trust, for such purpose (a) money in an amount, or
(b) U.S. Government Obligations (as defined below) which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (c) a combination of (a) and (b), sufficient, in the opinion (with
respect to (a) and (b) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Applicable Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of (and premium, if any) and
interest on, the TMS Debt Securities of such series at the time outstanding on
the dates such installments of interest or principal and premium are due; (2)
such deposit shall not cause the Applicable Trustee to have a conflicting
interest with respect to the TMS Debt Securities of any series; (3) such
deposit will not result in a breach or violation of, or constitute a default
under, the Applicable Indenture or any other agreement or instruction to which
TMS is a party or by which it is bound; (4) if the TMS Debt Securities of such
series are then listed on any national securities exchange, TMS shall have
delivered to the Applicable Trustee an opinion of counsel or a letter or other
document from such exchange to the effect that TMS's exercise of its legal
defeasance option or the covenant defeasance option, as the case may be, would
not cause such TMS Debt Securities to be delisted; (5) no Event of Default (as
defined below) or event (including such deposit) which, with notice or lapse of
time or both, would become an Event of Default with respect to the TMS Debt
Securities of such series shall have occurred and be continuing on the date of
such deposit and, with respect to the legal defeasance option only, no Event of
Default under the provisions of the Applicable Indenture relating to certain
events of bankruptcy or insolvency or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under such bankruptcy
or insolvency provisions shall have occurred and be continuing on the 91st day
after such date; and (6) certain other opinions, officers' certificates and
other documents specified in the Applicable Indenture, including an opinion of
counsel or a ruling of the United States Internal Revenue Service to the effect
that such deposit, defeasance or Discharge will not cause the holders of the
TMS Debt Securities of such series to recognize income, gain or loss for
Federal income tax purposes. Notwithstanding the foregoing, if TMS exercises
its covenant defeasance option and an Event of Default under the provisions of
the TMS Indentures relating to certain events of bankruptcy or insolvency or
event which with the giving of notice or lapse of time, or both, would become
an Event of Default under such bankruptcy or insolvency provisions shall have
occurred and be continuing on the 91st day after the date of such deposit, the
obligations of TMS referred to under the definition of covenant defeasance
option with respect to such TMS Debt Securities shall be reinstated in full.
(Section 15.02).
Events of Default. An "Event of Default" with respect to the TMS Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body): (1) default in the payment of any
interest upon any TMS Debt Security of such series when it becomes due and
payable, and continuance of such default for a period of 30 days; (2) default
in the payment of the principal of (and premium, if any, on) any TMS Debt
Security of such series at its maturity; (3) default in the deposit of any
sinking fund payment, when and as due by the terms of any TMS Debt Security of
such series; (4) default in the performance, or breach of any covenant or
warranty in the Applicable Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in the Applicable
Indenture specifically dealt with or which expressly has been included in the
Applicable Indenture solely for the benefit of TMS Debt Securities of a series
other than such series), and continuance of such default or breach for a period
of 60 days after there has been given to TMS by the Applicable Trustee or to
TMS and the Applicable Trustee by the holders of at least 25 percent in
principal amount of the TMS Debt Securities of such series at the time
outstanding, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"; (5)
certain events of bankruptcy, insolvency or reorganization with respect to TMS;
or
44
<PAGE>
(6) any other Event of Default provided with respect to TMS Debt Securities of
such series pursuant to the Applicable Indenture. (Section 5.01).
Acceleration. If an Event of Default with respect to TMS Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
case the Applicable Trustee or the holders of not less than 25 percent in
principal amount of the TMS Debt Securities of such series at the time
outstanding may declare the principal amount of the TMS Debt Securities of such
series to be due and payable immediately, by a notice in writing to TMS (and to
the Applicable Trustee if given by holders), and upon any such declaration such
principal amount (or specified amount), plus accrued and unpaid interest (and
premium, if any) shall become immediately due and payable. Upon payment of such
amount in the currency in which such TMS Debt Securities are denominated
(except as otherwise provided in the Applicable Indenture), all obligations of
TMS in respect of the payment of principal of the TMS Debt Securities of such
series shall terminate. (Section 5.02).
At any time after such a declaration of acceleration with respect to TMS
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Applicable Trustee as
provided in the Applicable Indenture, the holders of a majority in principal
amount of the TMS Debt Securities of such series, by written notice to TMS and
the Applicable Trustee, may rescind and annul such declaration and its
consequences if (1) TMS has paid or deposited with the Applicable Trustee a sum
in the currency in which such TMS Debt Securities are denominated (except as
otherwise provided in the Applicable Indenture) sufficient to pay (a) all
overdue installments of interest on all TMS Debt Securities, (b) the principal
of (and premium, if any, on) any TMS Debt Securities of such series which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such TMS Debt Securities,
(c) to the extent that payment of such interest is lawful, interest upon
overdue installments of interest on each TMS Debt Security of such series at a
rate established for such series, and (d) all sums paid or advanced by the
Applicable Trustee and the reasonable compensation, expenses, disbursements and
advances of the Applicable Trustee, its agents and counsel; and (2) all Events
of Default with respect to TMS Debt Securities of such series, other than the
nonpayment of the principal of TMS Debt Securities of such series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in the Applicable Indenture. No such rescission, annullment
or waiver will affect any subsequent default or impair any right consequent
thereon. (Section 5.02).
Reports by TMS. Each TMS Indenture requires TMS to file with the
Applicable Trustee, annually, an officers' certificate as to TMS's compliance
with all conditions and covenants under the Applicable Indenture. (Section
12.02). Each TMS Indenture provides that the Applicable Trustee may withhold
notice to the holders of a series of TMS Debt Securities of any default (except
payment defaults on such TMS Debt Securities) if it considers such withholding
to be in the interest of the holders of such series of TMS Debt Securities to
do so. (Section 6.02).
Control by Holders. Subject to the provisions of each TMS Indenture
relating to the duties of the Applicable Trustee, in case an Event of Default
with respect to TMS Debt Securities of a particular series shall occur and be
continuing, the Applicable Trustee shall be under no obligation to exercise any
of its rights or powers under the Applicable Indenture at the request, order or
direction of any of the holders of TMS Debt Securities of that series, unless
such holders shall have offered to the Applicable Trustee reasonable indemnity
against the expenses and liabilities which might be incurred by it in
compliance with such request. (Section 5.07). Subject to such provisions for
the indemnification of the Applicable Trustee, the holders of a majority in
principal amount of the TMS Debt Securities of such series at the time
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Applicable Trustee
under the Applicable Indenture, or exercising any trust or power conferred on
the Applicable Trustee with respect to the TMS Debt Securities of that series
provided that such direction does not conflict with law or with the Applicable
Indenture. (Section 5.12).
Modification or Waiver. Without prior notice to or consent of any holders,
TMS and the Applicable Trustee, at any time and from time to time, may modify
the Applicable Indenture for any of the following purposes: (1) to evidence the
succession of another corporation to the rights of TMS and the assumption by
such successor of the covenants and obligations of TMS in the Applicable
Indenture and in the TMS Debt Securities issued thereunder; (2) to add to the
covenants of TMS for the benefit of the holders of all or any series of TMS
Debt Securities (and if such covenants are to be for the benefit of less than
all series, stating that such covenants are
45
<PAGE>
expressly being included solely for the benefit of such series) issued
thereunder, or to surrender any right or power conferred in the Applicable
Indenture upon TMS; (3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating that
such Events of Default are expressly being included solely to be applicable to
such series); (4) to add or change any of the provisions of the Applicable
Indenture to such extent as shall be necessary to permit or facilitate the
issuance thereunder of TMS Debt Securities of any series in bearer form,
registrable or not registrable, to permit bearer securities to be issued in
exchange for registered securities, to permit bearer securities to be issued in
exchange for bearer securities of other authorized denominations or to permit
the issuance of TMS Debt Securities of any series in uncertificated form,
provided that any such action shall not adversely affect the interests of the
holders of TMS Debt Securities of any series in any material respect; (5) to
change or eliminate any of the provisions of the Applicable Indenture, provided
that any such change or elimination will become effective only when there is no
TMS Debt Security issued thereunder of any series at the time outstanding
created prior to such modification which is entitled to the benefit of such
provision and as to which such modification would apply; (6) to secure the TMS
Debt Securities issued thereunder; (7) to supplement any of the provisions of
the Applicable Indenture to such extent as is necessary to permit or facilitate
the defeasance and discharge of any series of TMS Debt Securities issued
thereunder, provided that any such action will not adversely affect the
interests of the holders of TMS Debt Securities of such series or any other
series of TMS Debt Securities issued under the Applicable Indenture in any
material respect; (8) to establish the form or terms of TMS debt securities as
permitted by the Applicable Indenture; (9) to evidence and provide for the
acceptance of appointment thereunder by a successor TMS Trustee with respect to
one or more series of TMS Debt Securities issued thereunder and to add to or
change any of the provisions of the Applicable Indenture as is necessary to
provide for or facilitate the administration of the trusts thereunder by more
than one TMS Trustee; (10) to cure any ambiguity, to correct or supplement any
provision in the Applicable Indenture which may be defective or inconsistent
with any other provision therein, to eliminate any conflict between the terms
of the Applicable Indenture and the TMS Debt Securities issued thereunder or to
make any other provisions with respect to matters or questions arising under
the Applicable Indenture which will not be inconsistent with any provision of
the Applicable Indenture; provided such other provisions shall not adversely
affect the interests of the holders of TMS Debt Securities, of any series at
the time outstanding created thereunder prior to such modification in any
material respect. (Section 11.01).
With the written consent of the holders of not less than a majority in
principal amount of the TMS Debt Securities of each series at the time
outstanding affected by such modification voting separately, TMS and the
Applicable Trustee may modify the Applicable Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Applicable Indenture or of modifying in any manner the rights
of the holders of TMS Debt Securities, under the Applicable Indenture;
provided, however, that no such modification may, without the consent of the
holder of each TMS Debt Security of each such series at the time outstanding
affected thereby (1) change the stated maturity of the principal of, or any
installment of interest on, any TMS Debt Security, or reduce the principal
amount thereof or the interest thereon or any premium payable upon redemption
thereof, or change the stated maturity of, or change the currency or currencies
in which the principal of (and premium, if any) or interest on such TMS Debt
Security is denominated or payable, or adversely affect the right of repayment
or repurchase, if any, at the option of the holder, or reduce the amount of, or
postpone the date fixed for, any payment under any sinking fund or analogous
provisions for any TMS Debt Security, or impair the right to institute suit for
the enforcement of any payment on or after the stated maturity thereof, or
limit the obligation of TMS to maintain a paying agency outside the United
States for payments on bearer securities, (2) reduce the percentage in
principal amount of the TMS Debt Securities of any series at the time
outstanding, the consent of whose holders is required for any such
modification, or the consent of whose holders is required for any waiver of
compliance with certain provisions of the Applicable Indenture or certain
defaults or Events of Default thereunder and their consequences provided for in
the Applicable Indenture; or (3) modify any of the provisions of the Applicable
Indenture relating to modifications and waivers of defaults and covenants,
except to increase such percentage or to provide that certain other provisions
of the Applicable Indenture cannot be modified or waived without the consent of
the holder of each TMS Debt Security of each series at the time outstanding
affected thereby; provided, however, that certain of such modifications may be
made without the consent of any holder of any TMS Debt Security. (Section
11.02).
A modification which changes or eliminates any covenant or other provision
of a TMS Indenture with respect to one or more particular series of TMS Debt
Securities, or which modifies the rights of the holders of
46
<PAGE>
TMS Debt Securities with respect to such covenant or other provision, shall be
deemed not to affect the rights under such TMS Indenture of the holders of TMS
Debt Securities of any other series. (Section 11.02).
The holders of not less than a majority in principal amount of the TMS
Debt Securities of any series at the time outstanding may on behalf of the
holders of all the TMS Debt Securities of any such series waive, by notice to
the Applicable Trustee and TMS, any past default or Event of Default under the
Applicable Indenture with respect to such series and its consequences, except a
default (1) in the payment of the principal of (or premium, if any) or interest
on any TMS Debt Security of such series, or in the payment of any sinking fund
installment or analogous obligation with respect to the TMS Debt Securities of
such series, or (2) in respect of a convenant or provision hereof which
pursuant to the second paragraph under ";Modification or Waiver", above, cannot
be modified or amended without the consent of the holder of each TMS Debt
Security of such series at the time outstanding affected thereby. Upon any such
waiver, such default will cease to exist, and any Event of Default arising
therefrom will be deemed to have been cured, for every purpose of the TMS Debt
Securities of such series under the Applicable Indenture, but no such waiver
will extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. (Section 5.13).
TMS may omit in any particular instance to comply with certain covenants
in a TMS Indenture (including the covenants relating to the maintenance by TMS
of its existence, rights and franchises), if before the time for such
compliance the holders of at least a majority in principal amount of the TMS
Debt Securities of such series at the time outstanding either waive such
compliance in such instance or generally waive compliance with such provisions,
but no such waiver may extend to or affect any term, provision or condition
except to the extent expressly so waived, and, until such waiver becomes
effective, the obligations of TMS and the duties of the Applicable Trustee in
respect of any such provision will remain in full force and effect. (Section
12.09).
Limitation upon Merger or Consolidation. The TMS Senior Indenture provides
that TMS may not consolidate with or merge into any other corporation, or
convey all or substantially all of its assets as an entirety to any person,
unless (1) the corporation formed by such consolidation or into which TMS is
merged or the person which acquires by conveyance or transfer, or which leases,
all or substantially all of the assets of TMS as an entirety (the "successor
corporation") is a corporation organized and existing under the laws of the
United States or any state or the District of Columbia and expressly assumes,
by a supplemental indenture, the due and punctual payment of the principal of
(and premium, if any) and interest on all the TMS Senior Notes and the
performance of every covenant in the TMS Senior Indenture on the part of TMS to
be performed or observed; (2) immediately after giving effect to such
transaction, 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 (3) TMS has delivered to the TMS Senior Trustee an officers'
certificate and an opinion of counsel each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture comply
with the TMS Senior Indenture provisions and that all conditions precedent
therein provided for relating to such transaction have been complied with. For
purposes of the foregoing, assets of TMS which did not account for at least 50
percent of the consolidated net income of TMS for its most recent fiscal year
ending prior to the consummation of such transaction shall not in any event be
deemed to be all or substantially all of the assets of TMS.
Limitation upon Liens. The TMS Senior Indenture also provides that TMS may
not create or assume, except in favor of TMS or a subsidiary of TMS, any
pledge, lien or encumbrance upon any stock of any TMS Subsidiary (as defined
below) directly owned by TMS without equally and ratably securing the TMS
Senior Notes. "TMS Subsidiary" means a subsidiary which accounted for at least
25 percent of the consolidated net income of TMS for its most recent fiscal
year ending prior to the creation or assumption of such pledge, lien or
encumbrance, of which all of the outstanding voting stock (other than
directors' qualifying shares) is at the time, directly or indirectly, owned by
TMS, or by one or more TMS Subsidiaries.
Neither the TMS Debt Securities nor the TMS Indentures contain any
provisions other than the foregoing which will restrict TMS, the Corporation or
any of their respective subsidiaries from incurring, assuming or becoming
liable with respect to any indebtedness or other obligations, whether secured
or unsecured, or from paying dividends or making other distributions on its or
their capital stock or purchasing or redeeming its or their capital stock.
Neither the TMS Debt Securities nor the TMS Indentures contain any financial
ratios or specified levels of liquidity to which TMS must adhere. In addition,
neither the TMS Debt Securities nor the TMS Indentures contain any provision
which requires TMS to repurchase, redeem or modify the terms of the
47
<PAGE>
TMS Debt Securities upon a change in control or other events involving TMS
which may adversely affect the creditworthiness of the TMS Debt Securities.
"Discharged" means that TMS shall be deemed to have paid and discharged
the entire indebtedness represented by, and obligations under, the TMS Debt
Securities of such series and to have satisfied all the obligations under the
Applicable Indenture relating to the TMS Debt Securities of such series, except
(1) the right of holders of TMS Debt Securities of such series to receive, from
the trust fund described under ";Discharge, Legal Defeasance and Covenant
Defeasance" above, payment of the principal of (and premium, if any) and
interest on such TMS Debt Securities when such payments are due, (2) TMS's
obligations with respect to the TMS Debt Securities of such series under the
provisions relating to exchanges, transfers and replacement of TMS Debt
Securities, the maintenance of an office or agency of TMS and the defeasance
trust fund, the provisions relating to compensation and reimbursement of the
Applicable Trustee, and (3) the rights, powers, trusts, duties and immunities
of the Applicable Trustee thereunder. (Section 15.02).
"U.S. Government Obligations" means securities that are (1) direct
obligations of the United States for the timely payment of which its full faith
and credit is pledged, or (2) obligations of a person controlled or supervised
by and acting as an agency or instrumentality of the United States the payment
of which unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (1) or (2), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on (or principal of) any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt. (Section 15.02).
TMS Subordinated Notes
General
The TMS Subordinated Notes (which term includes the TMS 7.30% Subordinated
Notes and the TMS 7.95% Subordinated Notes, each as defined herein) were issued
under a Subordinated Indenture, dated as of December 1, 1997 (as amended and
supplemented, the "TMS Subordinated Indenture"), between TMS and The Bank of
New York, as Trustee (the "TMS Subordinated Trustee"). Pursuant to a
supplemental indenture to the TMS Subordinated Indenture, dated as of June 30,
1998 (the "Subordinated Guarantee"), the Corporation guaranteed the payment of
the obligations of TMS under the TMS Subordinated Notes.
Except as expressly limited therein to the TMS Senior Indenture, the
description of the TMS Indentures set forth under " -- TMS Senior Notes;TMS
Indentures", above, applies to the TMS Subordinated Indenture as well. Set
forth below is a description of certain additional provisions of the TMS
Subordinated Indenture.
TMS 7.30% Subordinated Notes
The TMS 7.30% Subordinated Notes due December 1, 2002 (the "TMS 7.30%
Subordinated Notes") were issued on December 1, 1997 and will mature on
December 1, 2002. The TMS 7.30% Subordinated Notes bear interest at the rate of
7.30% per annum, payable semiannually on June 1 and December 1 of each year to
the registered holders at the close of business on the May 15 and November 15
preceding such June 1 or December 1, respectively. The TMS 7.30% Subordinated
Notes are limited to $150 million aggregate principal amount.
TMS 7.95% Subordinated Notes
The TMS 7.95% Subordinated Notes due December 1, 2007 (the "TMS 7.95%
Subordinated Notes") were issued on December 1, 1997 and will mature on
December 1, 2007. The TMS 7.95% Subordinated Notes bear interest at the rate of
7.95% per annum, payable semiannually on June 1 and December 1 of each year to
the registered holders at the close of business on the May 15 and November 15
preceding such June 1 or December 1, respectively. The TMS 7.95% Subordinated
Notes are limited to $100 million aggregate principal amount.
48
<PAGE>
TMS Subordinated Indenture
Discharge, Legal Defeasance and Covenant Defeasance. Under the TMS
Subordinated Indentures, the covenant defeasance option and the legal
defeasance option described under " -- TMS Senior Notes;TMS
Indentures;Discharge, Legal Defeasance and Covenant Defeasance" will discharge
or cease to obligate, respectively, TMS with respect to the subordination
provisions described below under ";Subordination".
Event of Default.In addition to the Events of Default set forth under
" -- TMS Senior Notes; TMS Indentures; Events of Default", it shall be an Event
of Default under each of the TMS Subordinated Notes if there shall be a default
under any bond, debenture, note or other evidence of indebtedness for money
borrowed by TMS or under any mortgage, indenture or other instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by TMS or under any guarantee of payment by TMS
of indebtedness for money borrowed, whether such indebtedness or guarantee now
exists or shall hereafter be created, which default relates to the obligation
to pay the principal of or interest on any such indebtedness or guarantee when
due and payable; provided, however, that in the case of a default in the
payment of interest, such default shall continue for a period of 30 days; and
provided, further, that no default under either of the TMS Subordinated Notes
shall exist unless the amount of such default or defaults, either individually
or in the aggregate, is in excess of $15 million.
Modification or Waiver. In addition to the circumstances described under
" -- TMS Senior Notes; TMS Indentures; Modification or Waiver", and subject to
the limitations set forth therein, TMS and the TMS Subordinated Trustee may, at
any time and from time to time, without prior notice to or consent of any
holders of TMS Subordinated Notes, modify the TMS Subordinated Indentures to
make provision with respect to any conversion rights of such holders. (Section
11.01). No modification of the TMS Subordinated Indenture made with the consent
of holders of a majority in principal amount of the TMS Subordinated Notes of
any series may adversely affect the rights of any holder of Senior Indebtedness
under the subordination provisions of the TMS Subordinated Indenture without
the consent of such holder. (Section 11.08).
Subordination. Upon any distribution of assets of TMS upon the
dissolution, winding up, liquidation or reorganization of TMS, the payment of
the principal of (and premium, if any) and interest on the TMS Subordinated
Notes will be subordinated to the extent provided in the TMS Subordinated
Indenture in right of payment to the prior payment in full of all TMS Senior
Indebtedness (as defined below), including the TMS Senior Notes (Sections 16.01
and 16.02), but the obligation of TMS to make payment of principal (and
premium, if any) or interest on the TMS Subordinated Notes will not otherwise
be affected. (Section 16.02). No payment on account of principal (or premium,
if any), sinking funds or interest may be made on the TMS Subordinated Notes
unless full payment of amounts then due for principal, premium, if any, sinking
funds and interest on TMS Senior Indebtedness has been made or duly provided
for. (Section 16.03). In the event that, notwithstanding the foregoing, any
payment by TMS described in the foregoing sentence is received by the TMS
Subordinated Trustee under the TMS Subordinated Indenture, any paying agent or
the holders of any of the TMS Subordinated Notes before all TMS Senior
Indebtedness is paid in full, such payment or distribution shall be paid over
to the holders of such TMS Senior Indebtedness or on their behalf for
application to the payment of all such TMS Senior Indebtedness remaining unpaid
until all such TMS Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution to the holders of such
TMS Senior Indebtedness. Subject to payment in full of TMS Senior Indebtedness,
the holders of the TMS Subordinated Notes will be subrogated to the rights of
the holders of the TMS Senior Indebtedness to the extent of payments made to
the holders of such TMS Senior Indebtedness out of the distributive share of
the TMS Subordinated Notes. (Section 16.02). The TMS Subordinated Indenture
provides that the subordination provisions thereof shall not apply to money and
securities held in trust pursuant to the satisfaction and discharge and the
legal defeasance provisions of the TMS Subordinated Indenture. (Sections 4.02
and 15.02).
"TMS Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (1) TMS Indebtedness whether outstanding on the date of the
TMS Subordinated Indenture or thereafter created, incurred, assumed or
guaranteed, for money borrowed (other than the Indebtedness evidenced by the
TMS Subordinated Notes), unless in the instrument creating or evidencing the
same pursuant to which the same is outstanding it is provided that such TMS
Indebtedness is not senior or prior in right of payment to the TMS Subordinated
Notes or is pari passu or subordinate by its terms in right of payment to the
TMS Subordinated
49
<PAGE>
Notes, and (2) renewals, extensions and modifications of any such TMS
Indebtedness. (Section 1.01 of the TMS Subordinated Indenture).
"TMS Indebtedness" means (1) any liability of any persons (a) for borrowed
money, or (b) evidenced by a bond, note, debenture or similar instrument
(including purchase money obligations but excluding trade payables), or (c) for
the payment of money relating to a lease that is required to be classified as a
capitalized lease obligation in accordance with generally accepted accounting
principles, or (d) preferred or preference stock of a TMS Subsidiary held by
persons other than TMS or a TMS Subsidiary; (2) any liability of others
described in the preceding clause (1) that the person has guaranteed, that is
recourse to such person or that is otherwise its legal liability; and (3) any
amendment, supplement, modification, deferral, renewal, extension or refunding
of any liability of the types referred to in clauses (1) and (2) above.
As of , 1998, TMS had approximately $ million aggregate
principal amount of indebtedness outstanding that qualified as TMS Senior
Indebtedness under the TMS Subordinated Indenture. TMS expects from time to
time to issue additional indebtedness and to incur other obligations that may
constitute TMS Senior Indebtedness under the TMS Subordinated Indenture.
The Guarantees
Pursuant to supplemental indentures, each dated as of June 30, 1998, to
the TMS Senior Indenture and the TMS Subordinated Indenture, the Corporation
has fully and unconditionally guaranteed the due and punctual payment of the
principal of (and premium, if any) and interest on the TMS Debt Securities when
and as it shall become due and payable.
The Corporation's obligations under the Senior Guarantee are unsecured and
rank equally in right of payment with all existing and future unsecured and
unsubordinated indebtedness of the Corporation.
The Corporation's obligations under the Subordinated Guarantee are
subordinated in right of payment, to the extent set forth therein, to the
Corporation's obligations to the holders of Guarantor Senior Indebtedness (as
defined below). No payment on account of the Subordinated Guarantee shall be
made by the Corporation unless full payment of amounts then due for principal
(and premium, if any), sinking fund payments, 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 Subordinated Guarantee
shall be made by the Corporation 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 TMS Subordinated Trustee by the Corporation
or to the Corporation and the TMS Subordinated Trustee by any holder or holders
(or a trustee on their behalf) of any Guarantor Senior Indebtedness entitled to
accelerate the maturity thereof by reason of such event of default, and such
event of default shall not have been cured or waived.
"Guarantor Senior Indebtedness" is defined in the TMS Subordinated
Indenture as the principal of and premium, if any, and interest on (1) all
indebtedness for money borrowed, whether previously outstanding or thereafter
created, assumed or incurred, except (a) the Subordinated Guarantee, (b)
Existing Guarantor Subordinated Indebtedness (as defined in the Subordinated
Guarantee), (c) such indebtedness as is by its terms expressly stated to be
junior in right of payment to the Subordinated Guarantee, and (d) such
indebtedness as is by its terms expressly stated to be not superior in right of
payment to the Subordinated Guarantee or to rank pari passu in right of payment
with the Subordinated Guarantee, and (2) any deferrals, renewals or extensions
of any thereof.
As of , 1998, the Corporation had approximately $ million aggregate
principal amount of indebtedness that qualified as Guarantor Senior
Indebtedness under the Subordinated Guarantee. The Corporation expects from
time to time to issue additional indebtedness and to incur other obligations
that may constitute Guarantor Senior Indebtedness under the Subordinated
Guarantee.
50
<PAGE>
EXPERTS
The supplemental consolidated balance sheets of the Corporation as of
December 31, 1997 and 1996, and the related supplemental consolidated
statements of income, changes in stockholders' equity and cash flows for each
of the years in the three-year period ended December 31, 1997, included in the
Corporation's 1997 Supplemental Annual Report to Stockholders which is included
in First Union Corporation's Form 8-K dated May 26, 1998 and incorporated by
reference herein, have been incorporated by reference herein in reliance upon
the reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
PLAN OF DISTRIBUTION
This Prospectus will be used by First Union Capital Markets, a division of
Wheat First Securities, Inc. ("First Union Capital Markets"), an affiliate of
the Corporation, in connection with offers and sales related to market-making
and other transactions in the Debt Securities. First Union Capital Markets may
act as principal or agent in such transactions. Such sales will be made at
prices relating to prevailing market prices at the time of sale or otherwise.
VALIDITY OF SECURITIES
The validity of the assumptions of the Debt Securities and the Guarantees,
as applicable, has been passed upon for the Corporation by Marion A. Cowell,
Jr., Esq., Executive Vice President, Secretary and General Counsel of the
Corporation. Mr. Cowell owns shares of the Corporation's Common Stock and holds
options to purchase additional shares of such Common Stock.
51
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
Registration fee ........................................ $ 100
Printing and engraving expenses ......................... 25,000
Accounting fees ......................................... 15,000
Legal fees and expenses ................................. 100,000
Blue sky and legal investment fees and expenses ......... 7,500
Miscellaneous ........................................... 10,400
--------
Total ............................................ $170,000
========
</TABLE>
All expenses are estimated except the registration fee.
Item 15. Indemnification of Directors and Officers.
Sections 55-8-50 through 55-8-58 of the revised North Carolina Business
Corporation Act (the "NCBCA"), which became effective on July 1, 1990, contain
specific provisions relating to indemnification of directors and officers of
North Carolina corporations. In general, the statute provides that (i) a
corporation must indemnify a director or officer against reasonable expenses
who is wholly successful in his defense of a proceeding to which he is a party
because of his status as such, unless limited by the articles of incorporation,
and (ii) a corporation may indemnify a director or officer if he is not wholly
successful in such defense, if it is determined as provided in the statute that
the director or officer meets a certain standard of conduct, provided when a
director or officer is liable to the corporation or liable on the basis of
receiving a personal benefit, the corporation may not indemnify him. The
statute also permits a director or officer of a corporation who is a party to a
proceeding to apply to the courts for indemnification, unless the articles of
incorporation provide otherwise, and the court may order indemnification under
certain circumstances set forth in the statute. The statute further provides
that a corporation may in its articles of incorporation or bylaws or by
contract or resolution provide indemnification in addition to that provided by
the statute, subject to certain conditions set forth in the statute.
The Corporation's Bylaws provide for the indemnification of the
Corporation's directors and executive officers by the Corporation against
liabilities arising out of his status as such, excluding any liability relating
to activities which were at the time taken known or believed by such person to
be clearly in conflict with the best interests of the Corporation.
The Corporation's Articles of Incorporation provides for the elimination
of the personal liability of each director of the Corporation to the fullest
extent permitted by the provisions of the NCBCA, as the same may from time to
time be in effect.
The Corporation maintains directors and officers liability insurance,
which provides coverage of up to $80,000,000, subject to certain deductible
amounts. In general, the policy insures (i) the Corporation's directors and
officers against loss by reason of any of their wrongful acts, and/or (ii) the
Corporation against loss arising from claims against the directors and officers
by reason of their wrongful acts, all subject to the terms and conditions
contained in the policy.
Under agreements which may be entered into by the Corporation, certain
controlling persons, directors and officers of the Corporation may be entitled
to indemnification by underwriters and agents who participate in the
distribution of Debt Securities covered by the Registration Statement against
certain liabilities, including liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise (other than
insurance), the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
insurance and the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling
II-1
<PAGE>
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ---------------------------- ---------------------------------------------------------------------------------------------
<S> <C> <C>
(4)(a)(i) -- Copy of the CoreStates Subordinated Indenture. (Incorporated by reference to Exhibit 4.2 to
CoreStates' Current Report on Form 8-K dated January 29, 1991, to Exhibit 4 to
CoreStates' Current Report on Form 8-K dated April 20, 1993, and to Exhibit 4.5 to
Registrant's Annual Report on Form 10-K for the year ended December 31, 1994.)
(4)(a)(ii) -- Copy of the assumption of the CoreStates Subordinated Indenture.
(4)(a)(iii) -- Specimen of CoreStates Subordinated Medium-Term Note. (Incorporated by reference to
Exhibit 4.5 to CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(a)(iv) -- Specimen of CoreStates 9 5/8% Subordinated Note. (Incorporated by reference to Exhibit 4.7
to CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(a)(v) -- Specimen of CoreStates 9 3/8% Subordinated Note. (Incorporated by reference to Exhibit (4)
to CoreStates' Current Report on Form 8-K dated April 21, 1991.)
(4)(a)(vi) -- Specimen of CoreStates 6 5/8% Subordinated Note. (Incorporated by reference to Exhibit 4 to
CoreStates' Current Report on Form 8-K dated March 18, 1993.)
(4)(a)(vii) -- Specimen of CoreStates 5 7/8% Subordinated Note. (Incorporated by reference to Exhibit 4 of
CoreStates' Current Report on Form 8-K dated October 21, 1993.)
(4)(a)(viii) -- Specimen of CoreStates Subordinated Medium-Term Note. (Incorporated by reference to
Exhibit 4(f) to CoreStates' Registration Statement No. 33-54049.)
(4)(a)(ix) -- Form of CoreStates Subordinated Medium-Term Note. (Incorporated by reference to
Exhibit 4(f)(5) to CoreStates' Registration Statement Nos. 333-2297 and 33-54049.)
(4)(b)(i) -- Copy of the CoreStates Senior Indenture. (Incorporated by reference to Exhibit 4.1 to
CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(b)(ii) -- Copy of the assumption of the CoreStates Senior Indenture.
(4)(b)(iii) -- Specimen of CoreStates Senior Medium-Term Note. (Incorporated by reference to Exhibit 4.3
to CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(b)(iv) -- Specimen of CoreStates Senior Medium-Term Note. (Incorporated by reference to
Exhibit 4(d) to CoreStates' Registration Statement No. 33-54049.)
(4)(b)(v) -- Form of CoreStates Senior Medium-Term Note. (Incorporated by reference to Exhibit 4
(d)(5) to CoreStates' Registration Statement Nos. 333-2297 and 33-54049.)
(4)(c)(i) -- Copy of the Meridian Subordinated Indenture. (Incorporated by reference to Exhibit 4.1 to
Meridian's Registration Statement No. 33-45562.)
(4)(c)(ii) -- Copy of the assumption of the Meridian Subordinated Indenture.
(4)(d)(i) -- Copy of the Meridian Senior Indenture. (Incorporated by reference to Exhibit 4.2 to
Meridian's Registration Statement No. 33-45562.)
(4)(d)(ii) -- Copy of the assumption of the Meridian Senior Indenture.
(4)(e)(i) -- Copy of the First Fidelity Subordinated Indenture. (Incorporated by reference to Exhibit 4.3
to First Fidelity's Registration Statement No. 33-21480 and Exhibit No. 4.2 to
Post-Effective Amendment No. 1 to Registration Statement No. 33-21480.)
(4)(e)(ii) -- Copy of the first assumption of the First Fidelity Subordinated Indenture.
(4)(e)(iii) -- Copy of the second assumption of the First Fidelity Subordinated Indenture.
(4)(f)(i) -- Copy of the TMS Subordinated Indenture. (Incorporated by reference to Exhibit 4.1,
Exhibit 4.2 and Exhibit 4.3 to TMS's Current Report on Form 8-K dated December 1,
1997, and to Exhibit 4.4 to TMS's Registration Statement No. 33-98972.)
(4)(f)(ii) -- Copy of the Subordinated Guarantee.
(4)(f)(iii) -- Form of TMS Subordinated Note. (Incorporated by reference to Exhibit 4.4 to TMS's
Registration Statement No. 33-98972.)
(4)(f)(iv) -- Form of TMS 7.30% Subordinated Note. (Incorporated by reference to Exhibit 4.2 to TMS's
Current Report on Form 8-K dated December 1, 1997.)
(4)(f)(v) -- Form of TMS 7.95% Subordinated Note. (Incorporated by reference to Exhibit 4.3 to TMS's
Current Report on Form 8-K dated December 1, 1997.)
(4)(g)(i) -- Copy of The TMS Senior Indenture. (Incorporated by reference to Exhibit 4.1, Exhibit 4.2
and Exhibit 4.3 to TMS's Current Report on Form 8-K dated April 15, 1997 and to
Exhibit 4.2 to TMS's Registration Statement No. 333-24807.)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
- -------------------------- ----------------------------------------------------------------------------------------------
<S> <C> <C>
(4)(g)(ii) -- Copy of the Senior Guarantee.
(4)(g)(iii) -- Form of TMS Senior Note. (Incorporated by reference to Exhibit 4.2 to TMS's Registration
Statement No. 333-24807.)
(4)(g)(iv) -- Form of TMS 8.05% Senior Note. (Incorporated by reference to Exhibit 4.2 to TMS's
Current Report on Form 8-K dated April 15, 1997.)
(4)(g)(v) -- Form of TMS 8.375% Senior Note. (Incorporated by reference to Exhibit 4.3 to TMS's
Current Report on Form 8-K dated April 15, 1997.)
(4)(h)(i) -- Copy of the Signet Subordinated Indenture. (Incorporated by reference to Exhibit 4(f) to
Signet's Registration Statement No. 33-4491.)
(4)(h)(ii) -- Copy of the assumption of the Signet Subordinated Indenture.
(4)(i)(i) -- Copy of the Dominion Subordinated Indenture. (Incorporated by reference to Exhibit 4 to
Amendment No. 1 to Dominion's Registration Statement No. 33-14858.)
(4)(i)(ii) -- Copy of the first assumption of the Dominion Subordinated Indenture.
(4)(i)(iii) -- Copy of the second assumption of the Dominion Subordinated Indenture.
(4)(j)(i) -- Copy of the Florida National Subordinated Indenture. (Incorporated by reference to Exhibit
4(a) to Florida National's Registration Statement No. 33-13757.)
(4)(j)(ii) -- Copy of the first assumption of the Florida National Subordinated Indenture.
(4)(j)(iii) -- Copy of the second assumption of the Florida National Subordinated Indenture.
(4)(j)(iv) -- Form of Florida National Capital Notes. (Incorporated by reference to Exhibit 4(b) to Florida
National's Registration Statement No. 33-13757.
(5) -- Opinion of Marion A. Cowell, Jr., Esq.
(12) -- Computations of Consolidated Ratios of Earnings to Fixed Charges. (Incorporated by
reference to Exhibit (12) to the Corporation's 1998 Third Quarter Report on Form 10-Q.)
(23)(a) -- Consent of KPMG Peat Marwick LLP.
(23)(b) -- Consent of Marion A. Cowell, Jr., Esq. (Included in Exhibit (5).)
(24) -- Power of Attorney. (Incorporated by reference to Exhibit (24) to the Corporation's
Registration Statement No. 333-58299.)
(25)(a) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the CoreStates
Subordinated Trustees. (Incorporated by reference to Exhibit 26(b) to CoreStates'
Registration Statement No. 33-57034 and Exhibit 26(b) to CoreStates' Registration
Statement No. 33-54049.)
(25)(b) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the CoreStates
Senior Trustee. (Incorporated by reference to Exhibit 25 to CoreStates' Registration
Statement No. 333-02297.)
(25)(c) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Meridian
Subordinated Trustee. (Incorporated by reference to Exhibit 26.1 to Meridian's
Registration Statement No. 33-58690.)
(25)(d) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Meridian
Senior Trustee. (Incorporated by reference to Exhibit 26.2 to Meridian's Registration
Statement No. 33-58690.)
(25)(e) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the First Fidelity
Subordinated Trustee. (Incorporated by reference to Exhibit 26.1 to First Fidelity's
Registration Statement No. 33-21480.)
(25)(f) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the TMS
Subordinated Trustee.
(25)(g) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the TMS Senior
Trustee. (Incorporated by reference to Exhibit 25.1 to TMS's Registration Statement
No. 333-24807.)
(25)(h) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Signet
Subordinated Trustee. (Incorporated by reference to Exhibit 26(b) to Signet's Registration
Statement No. 33-28089.)
(25)(i) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Dominion
Subordinated Trustee.
(25)(j) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Florida
National Subordinated Trustee. (Incorporated by reference to Exhibit 26 to Florida
National's Registration Statement No. 33-13757.)
(27) -- The Corporation's Financial Data Schedule. (Incorporated by reference to Exhibit (27) to
the Corporation's 1998 Third Quarter Report on Form 10-Q.)
</TABLE>
II-3
<PAGE>
Item 17. Undertakings.
A. Undertakings to Update Annually.
(1) The undersigned registrant hereby undertakes:
(A) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of the 1933 (as amended, the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(A)(i) and (1)(A)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (as amended, the
"Exchange Act") that are incorporated by reference in the registration
statement.
(B) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(C) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses in the defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Charlotte, State of
North Carolina, on January 12, 1999.
FIRST UNION CORPORATION
By: MARION A. COWELL, JR.
---------------------------------------
Marion A. Cowell, Jr.
Executive Vice President, Secretary
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity
- ------------------------------------------ ------------------------------------
<S> <C>
EDWARD E. CRUTCHFIELD* Chairman and Chief Executive Officer
------------------------------------- and Director
Edward E. Crutchfield
ROBERT T. ATWOOD* Executive Vice President and Chief
------------------------------------- Financial Officer
Robert T. Atwood
JAMES H. HATCH* Senior Vice President and Corporate
------------------------------------- Controller (Principal Accounting
James H. Hatch Officer)
EDWARD E. BARR* Director
-------------------------------------
Edward E. Barr
Director
-------------------------------------
G. Alex Bernhardt
W. WALDO BRADLEY* Director
-------------------------------------
W. Waldo Bradley
ROBERT J. BROWN* Director
-------------------------------------
Robert J. Brown
A. DANO DAVIS* Director
-------------------------------------
A. Dano Davis
Director
-------------------------------------
Norwood H. Davis
R. STUART DICKSON* Director
-------------------------------------
R. Stuart Dickson
B. F. DOLAN* Director
-------------------------------------
B. F. Dolan
RODDEY DOWD, SR.* Director
-------------------------------------
Roddey Dowd, Sr.
Director
-------------------------------------
John R. Georgius
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity
- ------------------------------------------------- ---------
<S> <C>
ARTHUR M. GOLDBERG* Director
-------------------------------------
Arthur M. Goldberg
WILLIAM H. GOODWIN, JR.* Director
-------------------------------------
William H. Goodwin, Jr.
FRANK M. HENRY* Director
-------------------------------------
Frank M. Henry
ERNEST E. JONES* Director
-------------------------------------
Ernest E. Jones
TERRENCE A. LARSEN* Director
-------------------------------------
Terrence A. Larsen
HERBERT LOTMAN* Director
-------------------------------------
Herbert Lotman
RADFORD D. LOVETT* Director
-------------------------------------
Radford D. Lovett
MACKEY J. MCDONALD* Director
-------------------------------------
Mackey J. McDonald
MALCOLM S. MCDONALD* Director
-------------------------------------
Malcom S. McDonald
PATRICIA A. MCFATE* Director
-------------------------------------
Patricia A. McFate
JOSEPH NEUBAUER* Director
-------------------------------------
Joseph Neubauer
RANDOLPH N. REYNOLDS* Director
-------------------------------------
Randolph N. Reynolds
JAMES M. SEABROOK* Director
-------------------------------------
James M. Seabrook
Director
-------------------------------------
Ruth G. Shaw
CHARLES M. SHELTON, SR.* Director
-------------------------------------
Charles M. Shelton, Sr.
LANTY L. SMITH* Director
-------------------------------------
Lanty L. Smith
RAYMOND W. SMITH* Director
-------------------------------------
Raymond W. Smith
*By Marion A. Cowell, Jr., Attorney-in-Fact
MARION A. COWELL, JR.
-------------------------------------
Marion A. Cowell, Jr.
</TABLE>
Date: January 12, 1999
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ---------------------------- ---------------------------------------------------------------------------------------------
<S> <C> <C>
(4)(a)(i) -- Copy of the CoreStates Subordinated Indenture. (Incorporated by reference to Exhibit 4.2 to
CoreStates' Current Report on Form 8-K dated January 29, 1991, to Exhibit 4 to
CoreStates' Current Report on Form 8-K dated April 20, 1993, and to Exhibit 4.5 to
Registrant's Annual Report on Form 10-K for the year ended December 31, 1994.)
(4)(a)(ii) -- Copy of the assumption of the CoreStates Subordinated Indenture.
(4)(a)(iii) -- Specimen of CoreStates Subordinated Medium-Term Note. (Incorporated by reference to
Exhibit 4.5 to CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(a)(iv) -- Specimen of CoreStates 9 5/8% Subordinated Note. (Incorporated by reference to Exhibit 4.7
to CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(a)(v) -- Specimen of CoreStates 9 3/8% Subordinated Note. (Incorporated by reference to Exhibit (4)
to CoreStates' Current Report on Form 8-K dated April 21, 1991.)
(4)(a)(vi) -- Specimen of CoreStates 6 5/8% Subordinated Note. (Incorporated by reference to Exhibit 4 to
CoreStates' Current Report on Form 8-K dated March 18, 1993.)
(4)(a)(vii) -- Specimen of CoreStates 5 7/8% Subordinated Note. (Incorporated by reference to Exhibit 4
of CoreStates' Current Report on Form 8-K dated October 21, 1993.)
(4)(a)(viii) -- Specimen of CoreStates Subordinated Medium-Term Note. (Incorporated by reference to
Exhibit 4(f) to CoreStates' Registration Statement No. 33-54049.)
(4)(a)(ix) -- Form of CoreStates Subordinated Medium-Term Note. (Incorporated by reference to
Exhibit 4(f)(5) to CoreStates' Registration Statement Nos. 333-2297 and 33-54049.)
(4)(b)(i) -- Copy of the CoreStates Senior Indenture. (Incorporated by reference to Exhibit 4.1 to
CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(b)(ii) -- Copy of the assumption of the CoreStates Senior Indenture.
(4)(b)(iii) -- Specimen of CoreStates Senior Medium-Term Note. (Incorporated by reference to
Exhibit 4.3 to CoreStates' Current Report on Form 8-K dated January 29, 1991.)
(4)(b)(iv) -- Specimen of CoreStates Senior Medium-Term Note. (Incorporated by reference to
Exhibit 4(d) to CoreStates' Registration Statement No. 33-54049.)
(4)(b)(v) -- Form of CoreStates Senior Medium-Term Note. (Incorporated by reference to
Exhibit 4(d)(5) to CoreStates' Registration Statement Nos. 333-2297 and 33-54049.)
(4)(c)(i) -- Copy of the Meridian Subordinated Indenture. (Incorporated by reference to Exhibit 4.1 to
Meridian's Registration Statement No. 33-45562.)
(4)(c)(ii) -- Copy of the assumption of the Meridian Subordinated Indenture.
(4)(d)(i) -- Copy of the Meridian Senior Indenture. (Incorporated by reference to Exhibit 4.2 to
Meridian's Registration Statement No. 33-45562.)
(4)(d)(ii) -- Copy of the assumption of the Meridian Senior Indenture.
(4)(e)(i) -- Copy of the First Fidelity Subordinated Indenture. (Incorporated by reference to Exhibit 4.3 to
First Fidelity's Registration Statement No. 33-21480 and Exhibit No. 4.2 to Post-Effective
Amendment No. 1 to Registration Statement No. 33-21480.)
(4)(e)(ii) -- Copy of the first assumption of the First Fidelity Subordinated Indenture.
(4)(e)(iii) -- Copy of the second assumption of the First Fidelity Subordinated Indenture.
(4)(f)(i) -- Copy of the TMS Subordinated Indenture. (Incorporated by reference to Exhibit 4.1,
Exhibit 4.2 and Exhibit 4.3 to TMS's Current Report on Form 8-K dated December 1,
1997, and to Exhibit 4.4 to TMS's Registration Statement No. 33-98972.)
(4)(f)(ii) -- Copy of the Subordinated Guarantee.
(4)(f)(iii) -- Form of TMS Subordinated Note. (Incorporated by reference to Exhibit 4.4 to TMS's
Registration Statement No. 33-98972.)
(4)(f)(iv) -- Form of TMS 7.30% Subordinated Note. (Incorporated by reference to Exhibit 4.2 to
TMS's Current Report on Form 8-K dated December 1, 1997.)
(4)(f)(v) -- Form of TMS 7.95% Subordinated Note. (Incorporated by reference to Exhibit 4.3 to
TMS's Current Report on Form 8-K dated December 1, 1997.)
(4)(g)(i) -- Copy of the TMS Senior Indenture. (Incorporated by reference to Exhibit 4.1, Exhibit 4.2
and Exhibit 4.3 to TMS's Current Report on Form 8-K dated April 15, 1997 and to
Exhibit 4.2 to TMS's Registration Statement No. 333-24807.)
(4)(g)(ii) -- Copy of the Senior Guarantee.
(4)(g)(iii) -- Form of TMS Senior Note. (Incorporated by reference to Exhibit 4.2 to TMS's Registration
Statement No. 333-24807.)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
- -------------------------- ----------------------------------------------------------------------------------------------
<S> <C> <C>
(4)(g)(iv) -- Form of TMS 8.05% Senior Note. (Incorporated by reference to Exhibit 4.2 to TMS's
Current Report on Form 8-K dated April 15, 1997.)
(4)(g)(v) -- Form of TMS 8.375% Senior Note. (Incorporated by reference to Exhibit 4.3 to TMS's
Current Report on Form 8-K dated April 15, 1997.)
(4)(h)(i) -- Copy of the Signet Subordinated Indenture. (Incorporated by reference to Exhibit 4(f) to
Signet's Registration Statement No. 33-4491.)
(4)(h)(ii) -- Copy of the assumption of the Signet Subordinated Indenture.
(4)(i)(i) -- Copy of the Dominion Subordinated Indenture. (Incorporated by reference to Exhibit 4 to
Amendment No. 1 to Dominion's Registration Statement No. 33-14858.)
(4)(i)(ii) -- Copy of the first assumption of the Dominion Subordinated Indenture.
(4)(i)(iii) -- Copy of the second assumption of the Dominion Subordinated Indenture.
(4)(j)(i) -- Copy of the Florida National Subordinated Indenture. (Incorporated by reference to Exhibit
4(a) to Florida National's Registration Statement No. 33-13757.)
(4)(j)(ii) -- Copy of the first assumption of the Florida National Subordinated Indenture.*
(4)(j)(iii) -- Copy of the second assumption of the Florida National Subordinated Indenture.
(4)(j)(iv) -- Form of Florida National Capital Notes. (Incorporated by reference to Exhibit 4(b) to
Florida National's Registration Statement No. 33-13757.)
(5) -- Opinion of Marion A. Cowell, Jr., Esq.
(12) -- Computations of Consolidated Ratios of Earnings to Fixed Charges. (Incorporated by
reference to Exhibit (12) to the Corporation's 1998 Third Quarter Report on Form 10-Q.)
(23)(a) -- Consent of KPMG Peat Marwick LLP.
(23)(b) -- Consent of Marion A. Cowell, Jr., Esq. (Included in Exhibit (5).)
(24) -- Power of Attorney. (Incorporated by reference to Exhibit (24) to the Corporation's
Registration Statement No. 333-58299.)
(25)(a) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the CoreStates
Subordinated Trustees. (Incorporated by reference to Exhibit 26(b) to CoreStates'
Registration Statement No. 33-57034 and Exhibit 26(b) to CoreStates' Registration
Statement No. 33-54049.)
(25)(b) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the CoreStates
Senior Trustee. (Incorporated by reference to Exhibit 25 to CoreStates' Registration
Statement No. 333-02297.)
(25)(c) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Meridian
Subordinated Trustee. (Incorporated by reference to Exhibit 26.1 to Meridian's
Registration Statement No. 33-58690.)
(25)(d) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Meridian
Senior Trustee. (Incorporated by reference to Exhibit 26.2 to Meridian's Registration
Statement No. 33-58690.)
(25)(e) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the First Fidelity
Subordinated Trustee. (Incorporated by reference to Exhibit 26.1 to First Fidelity's
Registration Statement No. 33-21480.)
(25)(f) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the TMS
Subordinated Trustee.*
(25)(g) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the TMS Senior
Trustee. (Incorporated by reference to Exhibit 25.1 to TMS's Registration Statement
No. 333-24807.)
(25)(h) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Signet
Subordinated Trustee. (Incorporated by reference to Exhibit 26(b) to Signet's Registration
Statement No. 33-28089.)
(25)(i) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Dominion
Subordinated Trustee.*
(25)(j) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the Florida
National Subordinated Trustee. (Incorporated by reference to Exhibit 26 to Florida
National's Registration Statement No. 33-13757.)
(27) -- The Corporation's Financial Data Schedule. (Incorporated by reference to Exhibit (27) to
the Corporation's 1998 Third Quarter Report on Form 10-Q.)
</TABLE>
- ----------
* To be filed by amendment.
Exhibit (4)(a)(ii)
THIRD SUPPLEMENTAL INDENTURE, dated as of April 28, 1998 among CoreStates
Capital Corp, a corporation duly organized and validly existing under the laws
of the Commonwealth of Pennsylvania ("CoreStates Capital"), CoreStates Financial
Corp, a corporation duly organized and validly existing under the laws of the
Commonwealth of Pennsylvania ("CoreStates"), First Union Corporation, a
corporation duly organized and validly existing under the laws of the State of
North Carolina ("FUNC"), Bank One, NA, a national banking association organized
under the laws of the United States of America, as the original trustee (the
"Original Trustee"), and Citibank, N.A., a national banking association
organized under the laws of the United States of America, as the new trustee
(the "New Trustee" and, together with the Original Trustee, the "Trustees").
R E C I T A L S
WHEREAS, CoreStates Capital and CoreStates heretofore executed and
delivered to the Trustees an Indenture, dated as of December 1, 1990, as
supplemented by the First Supplemental Indenture thereto, dated as of March 1,
1993, and the Second Supplemental Indenture thereto, dated as of August 1, 1994
(as supplemented, the "Indenture"), providing for the issuance from time to time
of CoreStates Capital's unsecured and subordinated 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 terms of the Indenture, CoreStates guaranteed the
obligations of CoreStates Capital under the Indenture and the Securities;
WHEREAS, pursuant to an Agreement and Plan of Mergers, dated as of November
18, 1997, between CoreStates and FUNC (the "Parent Plan"), CoreStates is merging
(the "Parent Merger") with and into FUNC, the separate existence of CoreStates
shall cease and FUNC shall survive and continue to exist as a North Carolina
corporation (the "Continuing Corporation");
WHEREAS, pursuant to an Agreement and Plan of Merger between FUNC and
CoreStates Capital (the "Sub Plan"), after the Parent Merger and on or about May
15, 1998, CoreStates Capital is merging (the "Sub Merger") with and into FUNC,
the separate existence of CoreStates Capital shall cease and FUNC shall survive
and continue to exist as the Continuing Corporation;
WHEREAS, Section 903 of the Indenture provides, in part, that CoreStates
shall not merge into another corporation unless the corporation into which
CoreStates is
<PAGE>
merged shall expressly assume, by an indenture supplemental to the Indenture,
executed and delivered to the Trustees, in form satisfactory to the Trustees,
the Guarantee endorsed on the Securities and the performance of every covenant
of the Indenture on the part of CoreStates to be performed or observed;
WHEREAS, Section 901 of the Indenture provides, in part, that CoreStates
Capital shall not merge into another corporation unless the corporation into
which CoreStates Capital is merged shall expressly assume, by an indenture
supplemental to the Indenture, executed and delivered to the Trustees, in form
satisfactory to the Trustees, the due and punctual payment of the principal of
(and premium, if any) and interest on and Additional Amounts in respect of all
the Securities and the performance of every covenant of the Indenture on the
part of CoreStates Capital to be performed or observed;
WHEREAS, Section 1001 (1) of the Indenture provides that, without the
consent of any Holders, CoreStates and CoreStates Capital, when authorized by
Board Resolutions, and the Trustees, at any time and from time to time, may
enter into a supplemental indenture to evidence the succession of another
corporation to CoreStates and CoreStates Capital and the assumption by any such
successor of the covenants, agreements and obligations of CoreStates and
CoreStates Capital in the Indenture and in the Securities;
WHEREAS, each of CoreStates and CoreStates Capital has delivered, or caused
to be delivered on its behalf, to the Trustees (i) an Officers' Certificate and
an Opinion of Counsel, each stating that the Parent Merger and the Sub Merger,
as applicable, and this Third Supplemental Indenture comply with Article Nine
and the applicable provisions of Article Ten of the Indenture, all conditions
precedent provided for in the Indenture relating to the Parent Merger and the
Sub Merger, as applicable, and the execution and delivery of this Third
Supplemental Indenture have been complied with, and, with respect to the Parent
Merger, that the Guarantees remain in full force and effect and (ii) a copy of
the Board Resolution authorizing the execution of this Third Supplemental
Indenture;
WHEREAS, immediately after giving effect to the Parent Merger and the Sub
Merger and treating any indebtedness which becomes an obligation of the
Guarantor and the Company or any Subsidiary as a result of the Parent Merger and
the Sub Merger as having been incurred by the Guarantor and the Company or any
such Subsidiary at the time of the Parent Merger and the Sub Merger, no default,
and no
<PAGE>
event which, after notice or lapse of time or both, would become a default shall
have happened and be continuing; and
WHEREAS, all things necessary to authorize the assumption by the Continuing
Corporation of CoreStates' obligations as Guarantor under the Indenture and
CoreStates Capital's obligations under the Indenture and to make this Third
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 Parent
Plan) of the Parent Merger, and the effective date (the "Effective Date") of
the Sub Merger, as applicable, (i) the Guarantees endorsed on the Securities and
the performance of every covenant of the Indenture on the part of CoreStates to
be performed or observed and (ii) the due and punctual payment of the principal
of (and premium, if any) and interest on and Additional Amounts in respect of
all the Securities and the performance of every covenant of the Indenture on the
part of CoreStates Capital to be performed or observed.
SECTION 2. Succession and Substitution. The Continuing Corporation, from
and after the Effective Time and the Effective Date, by virtue of the aforesaid
assumptions and the delivery of this Third Supplemental Indenture, shall succeed
to and be substituted for and may exercise every right and power of the
Guarantor and the Company under the Indenture with the same effect as if the
Continuing Corporation had been named as the Guarantor and the Company in the
Indenture; provided, however, that upon consummation of the Sub Merger and the
aforesaid assumption provided in Section l(ii) above, the Guarantee shall no
longer be applicable and the Continuing Corporation shall be the sole obligor
under the Indenture and the Securities.
SECTION 3. Representations and Warranties. The Continuing Corporation, as
of the date of execution of this Third Supplemental Indenture, represents and
warrants that: (i) it is a corporation organized and validly existing under the
laws of the State of North Carolina; (ii) it has full corporate power and
authority to execute and deliver this
<PAGE>
Third Supplemental Indenture and to perform its obligations under this Third
Supplemental Indenture in accordance with its terms; and that (iii) the
execution, delivery and performance of this Third Supplemental Indenture will
not violate, conflict with or constitute a breach of, or a default under its
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 Third
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,
from and after the Effective Time and the Effective Date, 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 One First Union Center, Charlotte, North Carolina 28288-0013,
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 Third 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 Third 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 Third Supplemental Indenture.
SECTION 8. Continuance of Indenture; Effectiveness. This Third Supplemental
Indenture supplements the Indenture and shall be a part of and subject to all
the terms thereof. The Indenture, as supplemented by this Third Supplemental
Indenture, shall continue in full force and effect. This Third Supplemental
Indenture shall become effective at the Effective Time, with respect to matters
relating to the Parent Merger, and the Effective Date, with respect to matters
relating to the Sub Merger.
4
<PAGE>
SECTION 9. Governing Law. This Third 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 Third
Supplemental Indenture shall have the same meanings assigned to them in the
Indenture.
SECTION 11. Counterparts. This Third 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.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third 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: CORESTATES FINANCIAL CORP
Jacqueline Ballantine By: /s/ Joseph M. Vayda
- -------------------------- --------------------------
Assistant Secretary Name: Joseph M. Vayda
Title: Executive Vice President
& Treasurer
Attest: CORESTATES CAPITAL CORP
Barbara Rothenburg By: /s/ Joseph M. Vayda
- -------------------------- --------------------------
Assistant Secretary Name: Joseph M. Vayda
Title: Vice President & Treasurer
Attest: FIRST UNION CORPORATION
/s/ Carol R. Miller By: /s/ Robert L. Andersen
- -------------------------- --------------------------
Assistant Secretary Name: Robert L. Andersen
Title: Senior Vice President
Attest: BANK ONE, NA,
AS Trustee
/s/ Jeffrey Shig By: /s/ Victoria Pavlick
- -------------------------- --------------------------
Name: Victoria Pavlick
Title: Authorized Signer
Attest: CITIBANK, NA,
AS Trustee
By: /s/ Carol Ng
- -------------------------- --------------------------
Senior Trust Officer Name: Carol Ng
Title: Vice President
EXHIBIT (4)(b)(ii)
FIRST SUPPLEMENTAL INDENTURE, dated as of April 28, 1998 among CoreStates
Capital Corp, a corporation duly organized and validly existing under the laws
of the Commonwealth of Pennsylvania ("CoreStates Capital") CoreStates Financial
Corp, a corporation duly organized and validly existing under the laws of the
Commonwealth of Pennsylvania ("CoreStates"), First Union Corporation, a
corporation duly organized and validly existing under the laws of the State of
North Carolina ("FUNC"), and The Bank of New York, a corporation duly organized
and validly existing under the laws of the State of New York, as Trustee (the
"Trustee").
RECITALS
WHEREAS, CoreStates Capital and CoreStates heretofore executed and
delivered to the Trustee's predecessor, The First National Bank of Atlanta, an
Indenture, dated as of December 1, 1990 (the "Indenture"), providing for the
issuance from time to time of CoreStates Capital's unsecured and unsubordinated
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 terms of the Indenture, CoreStates guaranteed the
obligations of CoreStates Capital under the Indenture and the Securities;
WHEREAS, pursuant to an Agreement and Plan of Mergers, dated as of
November 18, 1997, between CoreStates and FUNC (the "Parent Plan"), CoreStates
is merging (the "Parent Merger") with and into FUNC, the separate existence of
CoreStates shall cease and FUNC shall survive and continue to exist as a North
Carolina (the "Continuing Corporation");
WHEREAS, pursuant to an Agreement and Plan of Merger between FUNC and
CoreStates Capital (the "Sub Plan"), after the Parent Merger and on or about May
15, 1998, CoreStates Capital is merging (the "Sub Merger") with and into FUNC,
the separate existence of CoreStates Capital shall cease and FUNC shall survive
and continue to exist as the Continuing Corporation;
WHEREAS, Section 903 of the Indenture provides, in part, that CoreStates
shall not merge into another corporation unless the corporation into which
CoreStates 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 Guarantees endorsed on the Securities and the performance of every
covenant of the Indenture on the part of CoreStates to be performed or
observed;
<PAGE>
WHEREAS, Section 901 of the Indenture provides, in part, that CoreStates
Capital shall not merge into another corporation unless the corporation into
which CoreStates Capital 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 Additional Amounts in respect of all
the Securities and the performance of every covenant of the Indenture on the
part of CoreStates Capital to be performed or observed;
WHEREAS, Section 1001 (1) of the Indenture provides that, without the
consent of any Holders, CoreStates and CoreStates Capital, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, any enter
into a supplemental indenture to evidence the succession of another corporation
to CoreStates and CoreStates Capital and the assumption by any such successor of
the covenants, agreements and obligations of CoreStates and CoreStates Capital
in the Indenture and in the Securities;
WHEREAS, each of CoreStates and CoreStates Capital has delivered, or
caused to be delivered on its behalf, to the Trustee (i) an Officers'
Certificate and an Opinion of Counsel, each stating that the Parent Merger and
the Sub Merger, as applicable, and this First Supplemental Indenture comply with
Article Nine and the applicable provisions of Article Ten of the Indenture, all
conditions precedent provided for in the Indenture relating to the Parent Merger
and the Sub Merger, as applicable, and the execution and delivery of this First
Supplemental Indenture have been complied with, and, with respect to the Parent
Merger, that the Guarantees remain in full force and effect and (ii) a copy of
the Board Resolution authorizing the execution of this First Supplemental
Indenture;
WHEREAS, immediately after giving effect to the Parent Merger and the Sub
Merger and treating any indebtedness which becomes an obligation of the
Guarantor and the Company or any Subsidiary as a result of the Parent Merger and
the Sub Merger as having been incurred by the Guarantor and the Company or any
such Subsidiary at the time of the Parent Merger and the Sub Merger, no Event of
Default, and no event (including, without limitation, default under Section 1107
with respect to the Sub Merger) which, after notice or lapse of time or both,
would become an Event of Default or Default, shall have happened and be
continuing; and
2
<PAGE>
WHEREAS, all things necessary to authorize the assumption by the
Continuing Corporation of CoreStates' obligations as Guarantor under the
Indenture and CoreStates Capital's obligations under the Indenture and to make
this First 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 Parent
Plan) of the Parent Merger, and the effective date (the "Effective Date") of the
Sub Merger, as applicable, (i) the Guarantees endorsed on the Securities and the
performance of every covenant of the Indenture on the part of CoreStates to be
performed or observed and (ii) the due and punctual payment of the principal of
(and premium, if any) and interest on and Additional Amounts in respect of all
the Securities and the performance of every covenant of the Indenture on the
part of CoreStates Capital to be performed or observed.
SECTION 2. Succession and Substitution. The Continuing Corporation, from
and after the Effective Time and the Effective Date, by virtue of the aforesaid
assumptions and the delivery of this First Supplemental Indenture, shall succeed
to and be substituted for and may exercise every right and power of the
Guarantor and the Company under the Indenture with the same effect as if the
Continuing Corporation had been named as the Guarantor and the Company in the
Indenture; provided, however, that upon consummation of the Sub Merger and the
aforesaid assumption provided in Section 1(ii) above, the Guarantee shall no
longer be applicable and the Continuing Corporation shall be the sole obligor
under the Indenture and the Securities.
SECTION 3. Representations and Warranties. The Continuing Corporation, as
of the date of execution of this First Supplemental Indenture, represents and
warrants that: (i) it is a corporation organized and validly existing under the
laws of the State of North Carolina; (ii) it has full corporate power and
authority to execute and deliver this First Supplemental Indenture and to
perform its obligations under this First Supplemental Indenture in accordance
with its terms; and that (iii) the execution, delivery and
3
<PAGE>
performance of this First Supplemental Indenture will not violate, conflict with
or constitute a breach of, or a default under this 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 First
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,
from and after the Effective Time and the Effective Date, 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 One First Union Center, Charlotte, North Carolina 28288-0013,
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 First 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 First 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, and benefit or any legal or equitable right, remedy or claim under
the Indenture, as amended by this First Supplemental Indenture.
SECTION 8. Continuance of Indenture; Effectiveness. This First
Supplemental Indenture supplements the Indenture and shall be a part of and
subject to all the terms thereof. The Indenture, as supplemented by this First
Supplemental Indenture, shall continue in full force and effect. This First
Supplemental Indenture shall become effective at the Effective Time, with
respect to matters relating to the Parent Merger, and the Effective Date, with
respect to matters relating to the Sub Merger.
4
<PAGE>
SECTION 9. Governing Law. This First 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 First
Supplemental Indenture shall have the same meanings assigned to them in the
Indenture.
SECTION 11. Counterparts. This First 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.
5
<PAGE>
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.
Attest: CORESTATES FINANCIAL CORP
/s/ Jacqueline Ballantine By: /s/ Joseph M. Vayda
- --------------------------- -----------------------------
Assistant Secretary Name: Joseph M. Vayda
Title: Executive Vice President & Treasurer
Attest: CORESTATES FINANCIAL CORP
/s/ Barbara Rothenburg By: /s/ Joseph M. Vayda
- --------------------------- -----------------------------
Assistant Secretary Name: Joseph M. Vayda
Title: Vice President & Treasurer
Attest: FIRST UNION CORPORATION
/s/ Carol R. Mullis By: /s/ Robert L. Andersen
- --------------------------- -----------------------------
Assistant Secretary Name: Robert L. Andersen
Title: Senior Vice President
Attest: THE BANK OF NEW YORK
AS Trustee
/s/ROBERT A. MARRIMILLS By: /s/ Iliana Acevedo
- --------------------------- -----------------------------
Name: Iliana Acevedo
Title: Assistant Treasurer
6
Exhibit (4)(c)(ii)
SECOND SUPPLEMENTAL INDENTURE, dated as of April 28, 1998 among CORESTATES
FINANCIAL CORPORATION, a corporation duly organized and validly existing under
the laws of the Commonwealth of Pennsylvania ("CoreStates"), FIRST UNION
CORPORATION, a corporation duly organized and validly existing under the laws of
North Carolina ("FUNC"), and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association, as Trustee (the "Trustee").
R E C I T A L S
WHEREAS, CoreStates (successor by merger to Meridian Bancorp, Inc.) has
heretofore executed and delivered to the Trustee, an Indenture, dated as of
March 9, 1992, as supplemented by the First Supplemental Indenture thereto,
dated February 5, 1997 (as supplemented, the "Indenture"), providing for the
issuance from time to time of its unsecured subordinated 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 an Agreement and Plan of Mergers (the "Plan"),
CoreStates is merging (the "Merger") with and into FUNC, the separate existence
of Corestates shall cease and FUNC shall survive and continue to exist as a
corporation (the "Continuing Corporation");
WHEREAS, Section 701 of the Indenture provides, in part, that CoreStates
shall not merge into another corporation unless the corporation into which
CoreStates is merged shall expressly assume, by an indenture supplemental to the
Indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of CoreStates under the Indenture and under the
Securities, including all covenants contained in the Indenture and the
Securities;
WHEREAS, Section 801(1) of the Indenture provides that, without the consent
of any Holders, CoreStates, 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 CoreStates and
the assumption by any such successor of the covenants, agreements and
obligations of CoreStates in the Indenture and in the Securities;
WHEREAS, CoreStates has delivered, or caused to be delivered on its behalf,
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 Seven and the applicable provisions of Article Eight of the Indenture
and that all conditions precedent provided
<PAGE>
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 this Second Supplemental
Indenture; and
WHEREAS, all things necessary to authorize the assumption by the Continuing
Corporation of CoreStates' 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 Plan),
all of the obligations of CoreStates under the Indenture and under the
Securities, including all covenants contained in the Indenture and the
Securities.
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 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 North Carolina; (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 its 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
2
<PAGE>
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 104 of the Indenture,
from and after the Effective Time, 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 One First
Union Center, Charlotte, North Carolina 28288-0013, 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; Effectiveness. This Second
Supplemental Indenture supplements the Indenture and shall 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.
3
<PAGE>
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: CORESTATES FINANCIAL CORP
Jacqueline Ballantine By: /s/ Joseph M. Vayda
- -------------------------- --------------------------
Assistant Secretary Name: Joseph M. Vayda
Title: Executive Vice President
& Treasurer
Attest: FIRST UNION CORPORATION
Carol R. Mullis By:/s/ Robert L. Andersen
- -------------------------- --------------------------
Assistant Secretary Name: Robert L. Andersen
Title:Senior Vice President
Attest: THE FIRST NATIONAL BANK
OF CHICAGO, AS Trustee
R. Taira By:/s/ Faye Wright
- -------------------------- --------------------------
Assistant Secretary Name: Faye Wright
Title: Vice President
4
Exhibit (4)(d)(ii)
SECOND SUPPLEMENTAL INDENTURE, dated as of April 28, 1998 among CORESTATES
FINANCIAL CORP, a corporation duly organized and validly existing under the laws
of the Commonwealth of Pennsylvania ("CoreStates"), FIRST UNION CORPORATION, a
corporation duly organized and validly existing under the laws of the State of
North Carolina ("FUNC"), and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association, as Trustee (the "Trustee").
R E C I T A L S
WHEREAS, CoreStates (successor by merger to Meridian Bancorp, Inc.) has
heretofore executed and delivered to the Trustee, an Indenture, dated as of
March 9, 1992, as supplemented by the First Supplemental Indenture thereto,
dated February 5, 1997 (as supplemented, the "Indenture"), providing for the
issuance from time to time of its unsecured senior 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 an Agreement and Plan of Mergers (the "Plan"),
CoreStates is merging (the "Merger") with and into FUNC, the separate existence
of CoreStates shall cease and FUNC shall survive and continue to exist as a
North Carolina corporation (the "Continuing Corporation");
WHEREAS, Section 701 of the Indenture provides, in part, that CoreStates
shall not merge into another corporation unless the corporation into which
CoreStates is merged shall expressly assume, by an indenture supplemental to the
Indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of CoreStates under the Indenture and under the
Securities, including all covenants contained in the Indenture and the
Securities;
WHEREAS, Section 801(1) of the Indenture provides that, without the consent
of any Holders, CoreStates, 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 CoreStates and
the assumption by any such successor of the covenants, agreements and
obligations of CoreStates in the Indenture and in the Securities;
WHEREAS, CoreStates has delivered, or caused to be delivered on its behalf,
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 Seven and the applicable provisions of Article Eight of the Indenture
and that all conditions precedent provided for in the Indenture relating to the
Merger and the
<PAGE>
execution and delivery of this Second Supplemental Indenture have been complied
with and (ii) a copy of the Board Resolution authorizing the execution of this
Second Supplemental Indenture; and
WHEREAS, all things necessary to authorize the assumption by the Continuing
Corporation of CoreStates' 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 Plan),
all of the obligations of CoreStates under the Indenture and under the
Securities, including all covenants contained in the Indenture and the
Securities.
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 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 North Carolina; (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 its 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.
2
<PAGE>
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 104 of the Indenture,
from and after the Effective Time, 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 One First
Union Center, Charlotte, North Carolina 28288-0013, 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; Effectiveness. This Second
Supplemental Indenture supplements the Indenture and shall 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.
3
<PAGE>
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: CORESTATES FINANCIAL CORP
Jacqueline Ballantine By: /s/ Joseph M. Vayda
- -------------------------- --------------------------
Assistant Secretary Name: Joseph M. Vayda
Title: Executive Vice President
& Treasurer
Attest: FIRST UNION CORPORATION
Carol R. Mullis By:/s/ Robert L. Andersen
- -------------------------- --------------------------
Assistant Secretary Name: Robert L. Andersen
Title: Senior Vice President
Attest: THE FIRST NATIONAL BANK
OF CHICAGO, AS Trustee
R. Taira By:/s/ Faye Wright
- -------------------------- --------------------------
Assistant Secretary Name: Faye Wright
Title: Vice President
4
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
550 Broad Street, Newark, New Jersey 07102 and at 123 South Broad Street,
Philadelphia, Pennsylvania 19109, 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;
<PAGE>
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
2
<PAGE>
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 One First Union Center, Charlotte, North Carolina
28288-0013, 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
3
<PAGE>
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.
4
<PAGE>
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/ Patricia A. Bicket By: /s/ James L. Mitchell
- -------------------------- --------------------------
Assistant Secretary Name: James L. Mitchell
Title: Executive Vice President
Attest: FIRST UNION CORPORATION OF NEW JERSEY
/s/ Carol R. Mullis By:/s/ Kent S. Hathaway
- -------------------------- --------------------------
Assistant Secretary Name: Kent S. Hathaway
Title: Senior Vice President
Attest: THE CHASE MANHATTAN BANK N.A.
AS TRUSTEE
By:/s/ Sheik Wiltshire
- -------------------------- --------------------------
Name: Sheik Wiltshire
Title: Second Vice President
5
THIRD SUPPLEMENTAL INDENTURE, dated as of February 26, 1998, among FIRST
UNION CORPORATION, a corporation duly organized and existing under the laws of
the State of North Carolina ("FUNC"), 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, FUNC-NJ (successor by merger to First Fidelity Bancorporation)
has heretofore executed and delivered to the Trustee, an Indenture, dated as of
April 1, 1988, as supplemented by the First Supplemental Indenture thereto,
dated as of June 14, 1993, and the Second Supplemental Indenture thereto, dated
as of January 1, 1996 (as supplemented, the "Indenture"), providing for the
issuance from time to time of FUNC-NJ'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 an Agreement and Plan of Merger (the "Plan"),
FUNC-NJ is merging (the "Merger") with and into FUNC effective February 26,
1998, the separate existence of FUNC-NJ shall cease and FUNC shall survive and
continue to exist as a North Carolina corporation (the "Continuing
Corporation");
WHEREAS, Section 801 of the Indenture provides, in part, that FUNC-NJ
shall not merge into another corporation unless the corporation into which
FUNC-NJ 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, FUNC-NJ, 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 FUNC-NJ and the
assumption by any such successor of the covenants of FUNC-NJ in the Indenture
and in the Securities;
WHEREAS, FUNC-NJ has delivered to the Trustee (i) an Officers'
Certificate and an Opinion of Counsel, each stating that the Merger and this
Third Supplemental
<PAGE>
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 Third
Supplemental Indenture have been complied with and (ii) a copy of the Board
Resolution authorizing the execution of this Third Supplemental Indenture;
WHEREAS, immediately after giving effect to the Merger and treating any
indebtedness which becomes an obligation of the Company or any 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 or Default, shall
have happened and be continuing; and
WHEREAS, all things necessary to authorize the assumption by the
Continuing Corporation of FUNC-NJ's obligations under the Indenture and to make
this Third 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 Plan) 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 Third 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 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 Third Supplemental Indenture, represents and
warrants that:
2
<PAGE>
(i) it is a corporation organized and validly existing under the laws of the
State of North Carolina; (ii) it has full corporate power and authority to
execute and deliver this Third Supplemental Indenture and to perform its
obligations under this Third Supplemental Indenture in accordance with its
terms; and that (iii) the execution, delivery and performance of this Third
Supplemental Indenture will not violate, conflict with or constitute a breach
of, or a default under its 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 Third
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, from and after the Effective Time, 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 One First Union Center, Charlotte, North Carolina 28288-0013,
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 Third
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 Third 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 Third Supplemental Indenture.
SECTION 8. Continuance of Indenture; Effectiveness. This Third
Supplemental Indenture supplements the Indenture and shall be a part of and
subject to all the terms thereof. The Indenture as supplemented by this Third
Supplemental Indenture, shall continue in full force and effect. This Third
Supplemental Indenture shall become effective at the Effective Time.
3
<PAGE>
SECTION 9. Governing Law. This Third 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 Third
Supplemental Indenture shall have the same meanings assigned to them in the
Indenture.
SECTION 11. Counterparts. This Third 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.
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
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 UNION CORPORATION
/s/ Carol R. Mullis By: /s/ Kent S. Hathaway
- ------------------------------ --------------------------------
Assistant Secretary Name: Kent S. Hathaway
Title: Senior Vice President
Attest: FIRST UNION CORPORATION OF NEW JERSEY
/s/ Carol R. Mullis By: /s/ Kent S. Hathaway
- ------------------------------ --------------------------------
Assistant Secretary Name: Kent S. Hathaway
Title: Senior Vice President
Attest: THE CHASE MANHATTAN BANK,
AS Trustee
/s/ Robert S. Peschler By: /s/ Gemmel Richards
- ------------------------------ --------------------------------
ROBERT S. PESCHLER Name: Gemmel Richards
TRUST OFFICER Title: Corporate Trust Officer
5
THE MONEY STORE INC.,
FIRST UNION CORPORATION
AND
THE BANK OF NEW YORK, TRUSTEE
THIRD SUPPLEMENTAL INDENTURE
Dated: as of June 30, 1998
Supplemental to Indenture,
dated as of December 1, 1997
as amended by,
Supplemental Indenture,
dated as of December 1, 1997
as amended by,
Second Supplemental Indenture,
dated as of December 1, 1997
relating to
7.95% Subordinated Notes Due 2007
and
7 30% Subordinated Notes Due 2002
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of June 30, 1998 (this
"Supplemental Indenture"), to the Indenture, dated as of December 1, 1997 (the
"Indenture"), between THE MONEY STORE INC., a New Jersey corporation (the
"Company"), FIRST UNION CORPORATION, a North Carolina corporation ("the
Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee").
WITNESSETH
WHEREAS, the Company is an indirect 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 Debt Securities, as
defined the indenture; 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 11.01 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 Debt Securities; and
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument have been done,
performed
<PAGE>
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 1.01 of the Indenture is hereby amended by the insertion of
the following definitions in the appropriate alphabetical order:
"Existing Guarantor Subordinated lndebtedness" means the Guarantor's
(i) 7.18 Percent Subordinated Notes due April 15, 2011; (ii) 8 Percent
Subordinated Notes due August 15, 2009; (iii) 6-3/8 Percent Subordinated Notes
due January 15, 2009; (iv) 6 Percent Subordinated Notes due October 30, 2008;
(v) 7-1/2 Percent Subordinated Notes due July 15, 2006; (vi) 7 Percent
Subordinated Notes due March 15, 2006; (vii) 6-7/8 Percent Subordinated Notes
due September 15, 2005; (viii) 7.05 Percent Subordinated Notes due August 1,
2005; (ix) 6.58 Percent Subordinated Notes due July 15, 2005; (x) 8.77 Percent
Subordinated Notes due November 15, 2004; (xi) Floating Rate Notes due July 22,
2003; (xii) 7-1/4 Percent Subordinated Notes due February 15, 2003; (xiii) 8
Percent Subordinated Notes due November 15, 2002; (xiv) 8-1/8 Percent
Subordinated Notes due June 24, 2002; (xv) 9.45 Percent Subordinated Notes due
August 15, 2001; (xvi) Fixed Rate Medium-Term, varying rates and terms to June
5, 2001; (xvii) 9.45 Percent Subordinated Notes due June 15, l999; (xviii) 6.55
Percent Subordinated Debentures due October 15, 2035; (xix) 7-1/2 Percent
Subordinated Debentures due April 15, 2035; (xx) 6.824/7.574 Percent
Subordinated Debentures due August 1, 2026; (xxi) 6.4 Percent Subordinated Notes
due April 1, 2008; (xxii) 6.3 Percent Puttable/Callable Subordinated Notes due
April 15, 2028; (xxiii) 7-7/8 Percent Subordinated Notes due July 15, 2002;
(xxiv) 9-5/8 Percent Subordinated Notes due June 1, 1999; (xxv) Floating Rate
Subordinated Notes due April 15, 1998; (xxvi) 9-5/8 Percent Subordinated Capital
Notes due June 15, l999; (xxvii) 9-7/8 Percent Subordinated Capital Notes due
May 15, 1999.
"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.
-2-
<PAGE>
"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, 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) 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" in Section 1.O1 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 1.O1 of the
Indenture is hereby amended and restated in its entirety as follows:
"Officers' Certificate" means, (i) with respect to the Company, a
certificate signed by any two of the Chairman of the Board, the President, any
Vice Chairman 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, 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, as the case may be.
-3-
<PAGE>
4. The definition of "Opinion of Counsel" in Section 1.01 of the
Indenture is hereby amended by inserting the words "or the
Guarantor" in the second line following the first reference to the word
"Company" and by inserting the words "or the Guarantor, as the case may be" in
the second line following the second reference to the word "Company".
5. The Indenture is hereby amended by the insertion of the following
Section at the end of Article Two:
Section 2.04. Form of Guaranty.
Each Debt Security executed, authenticated and delivered on or after
June 30, 1998 shall be imprinted with the following legend:
This Debt 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 Debt Security executed, authenticated and delivered prior to June 30, 1998
shall be entitled to the benefits of the Guaranty, regardless of whether the
foregoing legend appears on such Debt Security.
6. The Indenture is hereby amended by the insertion of the following
Article Three-A after the existing Article Three:
ARTICLE THREE-A
The Guaranty
Section 3.01-A. Unconditional Guaranty.
The Guarantor hereby fully and unconditionally guarantees to the Trustee
and to each Holder of a Debt 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
-4-
<PAGE>
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 Sixteen 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.
The Guaranty shall be subordinate in right of payment to Guarantor
Senior Indebtedness as provided in Article Sixteen-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 5.02 of the Indenture is hereby amended by (i) inserting the
words "and the Guarantor" in the seventh line of the first paragraph thereof
following the word "Company"; (ii) inserting a comma and the words "the
Guarantor" in the fifth
-5-
<PAGE>
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 5.03 of the Indenture is hereby amended by inserting a comma
and the words "the Guarantor" in the fourth and sixth lines of the penultimate
paragraph thereof following the word "Company".
9. Section 5.04 of the Indenture is hereby amended by (i) inserting a
comma and the words "the Guarantor" in the fourth and fifth lines of the first
paragraph thereof, in each case following the word "Company" and (ii) inserting
the words "or the Guarantor" in the eighth line thereof following the word
"Company".
10. Section S.l5 of the Indenture is hereby amended by (i) inserting the
words "and the Guarantor each" in the first and fourth 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 fifth line thereof.
11. Section 6.07 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 first
line of the last paragraph (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:
-6-
<PAGE>
Section 8.05. 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 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 an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplementa1 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 8.06. 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 8.05, 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.
-7-
<PAGE>
13. The penultimate paragraph of Section 12.04 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 and (ii) inserting the words
"or Guarantor Order, as the case may be" after the words "Company Order" at the
end of the second line thereof.
14. Section 12.05 of the Indenture is hereby amended by (i) inserting
the words "each of" before the words "the Company" in the second line of such
Section; (ii) inserting the words "and the Guarantor" after the words "the
Company" in the second line of such Section; (iii) inserting the word "neither"
before the words "the Company" in the fourth line thereof; (iv) replacing the
words "shall not" with the words "nor the Guarantor shall" in the fourth line
thereof; and (v) inserting the words "or the board of directors of the
Guarantor, as the case may be," after the words "Board of Directors" in the
fifth line thereof;
15. Section 12.09 of the Indenture is hereby amended by (i) inserting
the words "and the Guarantor" after the word "the Company," in the first line
thereof, and (ii) inserting the words, "or the Guarantor" after the last
reference to "the Company" in such Section 12.09.
16. The Indenture is hereby amended by the insertion of the following
Article Sixteen-A after the existing Article Sixteen:
ARTICLE SIXTEEN-A
SUBORDINATION OF GUARANTY
-8-
<PAGE>
SECTION 16.01-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 16.02-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 reason of such event of default
(or a trustee on their behalf), and such event of default shall not have been
cured or waived.
SECTION 16.03-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 16.02-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 of reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in this
-9-
<PAGE>
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 or 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 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 16.04-A. Subrogation to Rights of Holders of Guarantor Senior
Indebtedness.
-10-
<PAGE>
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
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 16.05-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 6.01, 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 16.06-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 16.03-A or
under the conditions described in Section 16.02-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
-11-
<PAGE>
have the written notice provided for in Section 16.07-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.
SECTION 16.07-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 16.02-A has happened, until
the Trustee shal1 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 4.01 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 16.07-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 16.08-A. Provision 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 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
-12-
<PAGE>
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 16.09-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 16.10-A. Trustee To Effectuate Subordination.
Each holder by his acceptance of a Security or 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
Sixteen-A.
SECTION 16.11-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 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 6.07.
SECTION 16.12-A. Article Applicable to Paying Agents.
-13-
<PAGE>
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 16.07-A and 16.11-A shall not apply to the Guarantor or any
Affiliate of the Guarantor if it or such Affiliate acts as Paying Agent.
16. 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.
17. 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.
18. 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 Indenture,
as fully as if said terms and conditions were herein set forth at length. The
recitals contained herein shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for their correctness. The Trustee Makes
no representations as to the sufficiency of this Supplemental Indenture.
-14-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
THE MONEY STORE INC.
By: /s/ Morton Dear
-------------------------------
Name: Morton Dear
Title: Executive Vice President
THE BANK OF NEW YORK
By: /s/ Mary Jane Schmalzel
-------------------------------
Name: Mary Jane Schmalzel
Title: Vice President
FIRST UNION CORPORATION
By: /s/ Kenneth R. Stancliff
-------------------------------
Name: Kenneth R. Stancliff
Title: Senior Vice President
-15-
THE MONEY STORE INC.,
FIRST UNION CORPORATION,
THE AFFILIATE GUARANTORS NAMED HEREIN
AND
THE CHASE MANHATTAN BANK, TRUSTEE
THIRD SUPPLEMENTAL INDENTURE
Dated: as of June 30, 1998
Supplemental to Indenture, dated as of April 15, 1997
as amended by,
Supplemental Indenture,
dated as of April 15, 1997
as amended by,
Second Supplemental Indenture,
dated as of April 15, 1997
relating to
8.05% Senior Notes Due 2002
and
8.375% Senior Notes Due 2004
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of June 30, 1998 (this
"Supplemental Indenture"), to the Indenture, dated as of April 15, 1997 (the
"Indenture"), between THE MONEY STORE INC., a New Jersey corporation (the
"Company"), FIRST UNION CORPORATION, a North Carolina corporation, (the
"Guarantor"), the AFFILIATE GUARANTORS named herein (the "Affiliate
Guarantors") and THE CHASE MANHATTAN BANK, a New York corporation (the
"Trustee").
WITNESSETH
WHEREAS, the Company is an indirect wholly owned subsidiary of the
Guarantor, and the Guarantor wishes to guarantee the Company's obligations
pursuant to the Indenture and the Debt Securities, as defined in the Indenture;
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, each of the Guarantor and the Affiliate Guarantors has
authorized the execution and delivery of this Supplemental Indenture by a
resolution of its board of directors; and
WHEREAS, pursuant to Section 11.O1 of the Indenture, the execution and
delivery of this Supplemental Indenture by the Company, the Guarantor, the
Affiliate Guarantors and the Trustee does not require the consent of any holder
of the Debt Securities; and
<PAGE>
WHEREAS, all conditions and requirements necessary to make this
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, the Affiliate Guarantors and
the Trustee hereby agree as follows:
1. The definition of "Subsidiary Guarantees" in Section 1.01 of the
Indenture is hereby amended by deleting both references to the word "Subsidiary"
in such definition and replacing it with a reference to "Affiliate".
2. The definition of "Subsidiary Guarantor" in Section 1.01 of the
Indenture is hereby amended by (i) deleting both references to the word
"Subsidiary" in such definition and replacing it with a reference to "Affiliate"
and (ii) inserting the words "First Union Corporation, (ii)" in the first line
following the words "each of (i)" and (iii) deleting "(ii)" in the eighth line
and replacing it with "(iii)".
3. The Indenture is hereby amended by (i) replacing all references
to "Subsidiary Guarantor" with a reference to "Affiliate Guarantor" and
(ii) replacing all references to "Subsidiary Guarantees" with a reference to
"Affiliate Guarantees".
-2-
<PAGE>
4. 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.
5. 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.
6. 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 Indenture,
as fully as if said terms and conditions were herein set forth at length. The
recitals contained herein shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the sufficiency of this Supplemental Indenture.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
THE MONEY STORE INC.
By: /s/ Morton Dear
-----------------------------
Name: Morton Dear
Title: Executive Vice President
THE CHASE MANHATTAN BANK
By: /s/ Kathleen Perry
-----------------------------
Name: Kathleen Perry
Title: Second Vice President
FIRST UNION CORPORATION
By: /s/ Kenneth R. Stancliff
-----------------------------
Name: Kenneth R. Stancliff
Title: Senior Vice President
THE MONEY STORE/D.C. INC.
THE MONEY STORE/KENTUCKY INC.
THE MONEY STORE/MINNESOTA INC.
THE MONEY STORE AUTO FINANCE INC.
CLASSNOTES INC.
DYNA-MARK, INC.
EQUITY INSURANCE AGENCY, INC.
MAJOR BROKERAGE CO., INC.
PRINCETON ESCROW
THE MONEY STORE HOME EQUITY CORP.
THE MONEY STORE INVESTMENT CORP.
THE MONEY STORE OF NEW YORK INC.
THE COMMERCE GROUP
THE MONEY STORE COMMERCIAL
MORTGAGE INC.
THE MONEY STORE SERVICE CORP.
-4-
<PAGE>
TMS MORTGAGE INC.
THE MONEY STORE U.K. INC.
THE MONEY STORE REALTY INC.
TMS VENTURE HOLDINGS, INC.,
as Affiliate Guarantors
By: /s/ Morton Dear
-----------------------------
Name: Morton Dear
Title: Executive Vice President
-5-
Exhibit (4)(h)(ii)
================================================================================
SIGNET BANKING CORPORATION
(Formerly Known as Bank of Virginia Company)
FIRST UNION CORPORATION
AND
THE BANK OF NEW YORK,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 28, 1997
TO
INDENTURE
Dated as of April 1, 1986
----------
================================================================================
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 28, 1997, among
SIGNET BANKING CORPORATION (formerly known as Bank of Virginia Company), a
Virginia corporation having its principal place of business in Richmond,
Virginia (the "Company"), FIRST UNION CORPORATION, a North Carolina corporation
having its principal place of business in Charlotte, North Carolina ("First
Union"), and THE BANK OF NEW YORK, a corporation duly organized and existing
under the laws of the State of New York (the "Trustee"), WITNESSETH:
RECITALS
The Company (which was then named Bank of Virginia Company) heretofore
executed and delivered to the Trustee its Indenture dated as of April 1, 1986
(the "Indenture"), providing for the issuance from time to time thereunder, in
series, of unlimited subordinated debt securities of the Company. As provided in
the Indenture and pursuant to an Officer's Certificate dated April 4, 1986, the
Company established a series of debt securities of the Company designated as the
Floating Rate Subordinated Notes Due 1998 in the principal amount of
$100,000,000 (the "1998 Notes"). As provided in the Indenture and pursuant to an
Officer's Certificate dated May 23, 1989, the Company established a sense of
debt securities designated as the 9 5/8% Subordinated Notes Due 1999 in the
principal amount of $100,000,000 (the "1999 Notes"). (The 1998 Notes and the
1999 Notes are herein collectively referred to as the "Notes.") The Notes are
the only series of debt securities issued and outstanding under the Indenture.
The Company has, by an Agreement and Plan of Mergers dated as of July 18,
1997 (the "Merger Agreement") among the Company, Signet Bank, First Union and
First Union National Bank, agreed to merge (the "Merger") with and into First
Union. As a result of the Merger, the separate corporate existence of the
Company will cease and First Union will assume the liabilities and obligations
of the Company, including liabilities and obligations of the Company under the
Indenture and the Notes. The Merger shall become effective as provided in the
Merger Agreement.
Under the provisions of Section 701 of the Indenture, the Company may merge
into any other corporation without the consent of the Holders of any Notes, so
long as such merger complies with the provisions of Article Seven of the
Indenture and all conditions precedent stated therein relating to such
transaction have been complied with. Pursuant to a Board Resolution, the Board
of Directors of the Company has approved the Merger and all transactions
relating thereto, including the execution and delivery of this First
Supplemental Indenture. All acts and things necessary to constitute this First
Supplemental Indenture a valid indenture supplemental to and amendatory of the
Indenture have been done and performed.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized terms used and not defined herein shall have the meanings
assigned to them in the Indenture.
<PAGE>
2. First Union represents and warrants that it iS a corporation organized
and existing under the laws of the State of North Carolina and that, immediately
after giving effect to the Merger, no Default, and no event which, after notice
or lapse of time, or both, would become a Default, shall have happened and be
continuing.
3. Upon consummation of the Merger (the "Effective Date"), First Union
hereby will automatically and without any further action assume the due and
punctual payment of the principal of (and premium, if any, on) and interest on
the Notes and the performance of every covenant of the Indenture on the part of
the Company to be performed or observed. At the Effective Date, First Union
shall automatically become the "Company" for purposes of the Notes and the
Indenture and 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
First Union had been named as the Company therein.
4. At or immediately prior to the Effective Date, the Company will deliver
to the Trustee an Officers' Certificate and an Opinion of Counsel as required by
the Indenture with respect to the transactions contemplated by this First
Supplemental Indenture.
WITNESS the following signatures as of the above date.
SIGNET BANKING CORPORATION
(formerly known as Bank of Virginia Company)
[SEAL] By: /s/ T. Gaylon Layfield III
Attest: --------------------------------------
By: R. Gaines Tavenner Name: T. Gaylon Layfield III
------------------------- ------------------------------------
Title: Assistant Secretary Title: President and Chief Operating Officer
---------------------- -----------------------------------
FIRST UNION CORPORATION
[SEAL] By: /s/ Kent S. Hathaway
Attest: --------------------------------------
By: Carol R. Mullis Name: Kent S. Hathaway
------------------------- ------------------------------------
Title: Assistant Secretary Title: Senior Vice President
---------------------- -----------------------------------
<PAGE>
THE BANK OF NEW YORK,
TRUSTEE
[SEAL] By: /s/ Lucille Firrincieli
Attest: --------------------------------------
By: Mary Beth Lewiski Name: Lucille Firrincieli
------------------------- ------------------------------------
Title: Assistant Vice President Title: Vice President
---------------------- -----------------------------------
Exhibit (4)(i)(ii)
FIRST UNION CORPORATION OF VIRGINIA,
FIRST UNION CORPORATION
AND
MORGAN 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
<PAGE>
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 Morgan 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
<PAGE>
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,
-2-
<PAGE>
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
-3-
<PAGE>
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:
-4-
<PAGE>
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.
-5-
<PAGE>
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."
-6-
<PAGE>
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
-7-
<PAGE>
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
-8-
<PAGE>
"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
-9-
<PAGE>
(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.
-10-
<PAGE>
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
-11-
<PAGE>
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
-12-
<PAGE>
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.
-13-
<PAGE>
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
-14-
<PAGE>
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
-15-
<PAGE>
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
-16-
<PAGE>
Indenture, as fully as if said terms and conditions were herein set forth at
length.
-17-
<PAGE>
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/ Kent S. Hathaway
---------------------
Senior Vice President
ATTEST:
/S/ Carol R. Mullis
- --------------------
Assistant Secretary
FIRST UNION CORPORATION
By: /s/ Kent S. Hathaway
--------------------
Senior Vice President
ATTEST:
/S/ Carol R. Mullis
- -------------------
Assistant Secretary
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Helen G. Chin
-------------------
Vice President
ATTEST:
/s/ Catherine F. Donohue
- ------------------------
EXHIBIT (4)(i)(iii)
THIRD SUPPLEMENTAL INDENTURE, dated as of July 30, 1997, among FIRST
UNION CORPORATION, a corporation duly organized and existing under the laws of
the State of North Carolina ("FUNC"), FIRST UNION CORPORATION OF VIRGINIA, a
corporation duly organized and existing under the laws of the Commonwealth of
Virginia ("FUNC-VA"), and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, 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, FUNC-VA (successor by merger to Dominion Bankshares Corporation)
has heretofore executed and delivered to the Trustee's predecessor, Morgan
Guaranty Trust Company of New York, an Indenture, dated as of June 24, 1987, as
supplemented by the First Supplemental Indenture thereto, dated as of January 1,
1993, and the Second Supplemental Indenture thereto, dated as of May 10, 1993
(the "Second Supplemental Indenture")(as supplemented, the "Indenture"),
providing for the issuance of the 9 5/8% Subordinated Capital Notes Due 1999
(the "Securities");
WHEREAS, pursuant to the terms of the Second Supplemental Indenture, FUNC
guaranteed, on a subordinated basis, the obligations of FUNC-VA under the
Indenture and the Securities (the "Guaranty");
WHEREAS, pursuant to a Plan of Merger, dated as of June 1, 1997 (the
"Plan"), FUNC-VA is merging (the "Merger") with and into FUNC effective July 31,
1997, the separate existence of FUNC-VA shall cease and FUNC shall survive and
continue to exist as a North Carolina corporation (the "Continuing
Corporation"), and the Continuing Corporation and the Guarantor shall be one and
the same entity;
WHEREAS, Section 801 of the Indenture provides, in part, that FUNC-VA shall
not merge into another Person unless the Person into which FUNC-VA 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 interest on the and interest on the
Securities and the
<PAGE>
performance of every covenant of the Indenture on the part of the Company to be
performed or observed;
WHEREAS, Section 9O1(1) of the Indenture provides that, without the consent
of any Holders, FUNC-VA, 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 Person to FUNC-VA and the assumption by any
such successor of the covenants of FUNC-VA in the Indenture and in the
Securities;
WHEREAS, FUNC-VA has delivered to the Trustee (i) an Officers' Certificate
and an Opinion of Counsel, each stating that the Merger and this Third
Supplemental Indenture comply with Article Eight of the Indenture and that all
conditions precedent provided for in the Indenture relating to the Merger and
the execution and delivery of this Third Supplemental Indenture have been
complied with and (ii) a copy of the Board Resolution authorizing the execution
of this Third Supplemental Indenture;
WHEREAS, immediately after giving effect to the Merger and treating any
indebtedness which becomes an obligation of the Company or any 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 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
WHEREAS, all things necessary to authorize the assumption by the Continuing
Corporation of FUNC-VA's obligations under the Indenture and to make this Third
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
2
<PAGE>
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 Plan) of
the Merger, the due and punctual payment of the principal of and interest on 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 Third Supplemental Indenture, shall succeed to and be
substituted for and may exercise every right and power of FUNC-VA under the
Indenture with the same effect as if 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 Third Supplemental Indenture, represents and
warrants that: (i) it is a corporation organized and validly existing under the
laws of the State of North Carolina; (ii) it has full corporate power and
authority to execute and deliver this Third Supplemental Indenture and to
perform its obligations under this Third Supplemental Indenture in accordance
with its terms; and that (iii) the execution, delivery and performance of this
Third Supplemental Indenture will not violate, conflict with or constitute a
breach of, or a default under its 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 Third
Supplemental Indenture by the Continuing Corporation shall bind its respective
successors and assigns, whether so expressed or not.
3
<PAGE>
SECTION 5. Requests and Notices. Pursuant to Section 105 of the Indenture,
from and after the Effective Time, 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 One First
Union Center, Charlotte, North Carolina 28288-0013, 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 Third 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 Third 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 Third Supplemental Indenture.
SECTION 8. Continuance of Indenture; Effectiveness. This Third Supplemental
Indenture supplements the Indenture and shall be a part of and subject to all
the terms thereof from and after the Effective Time. The Indenture, as
supplemented by this Third Supplemental Indenture, shall continue in full force
and effect from and after the Effective Time; provided, however, that the terms
and provisions of the Second Supplemental Indenture, to the extent relating to
the Guaranty and the Guarantor, shall no longer be applicable; provided further,
however, that nothing in this Third Supplemental Indenture shall affect such
provisions with respect to the period prior to the Effective Time. This Third
Supplemental Indenture shall become effective at the Effective Time.
SECTION 9. Governing Law. This Third Supplemental Indenture shall be
governed by and construed ln accordance with the laws of the State of New York.
4
<PAGE>
SECTION 10. Defined Terms. All capitalized terms used in this Third
Supplemental Indenture shall have the same meanings assigned to them in the
Indenture.
SECTION 11. Counterparts. This Third 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.
SECTION 12. 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 Indenture,
as fully as if said terms and conditions were herein set forth at length.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third 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 UNION CORPORATION
/s/ Carol R. Mullis By: /s/ Kent S. Hathaway
- ---------------------------- ----------------------------
Assistant Secretary Name: Kent S. Hathaway
Title: Senior Vice President
Attest: FIRST UNION CORPORATION OF VIRGINIA
/s/ Carol R. Mullis By: /s/ Kent S. Hathaway
- ---------------------------- ----------------------------
Assistant Secretary Name: Kent S. Hathaway
Title: Senior Vice President
Attest: FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as TRUSTEE
By: /s/ Frank J. Gillhaus, Jr.
- ---------------------------- ----------------------------
Name: Frank J. Gillhaus, Jr.
Title:Vice President
6
Exhibit (4)(j)(iii)
SECOND SUPPLEMENTAL INDENTURE, dated as of June 23, 1995, between FIRST
UNION CORPORATION, a corporation duly organized and existing under the laws of
the State of North Carolina ("First Union"), having its principal offices at One
First Union Center, Charlotte, North Carolina 28288, and THE FIRST NATIONAL BANK
OF CHICAGO, a national banking association duly organized and existing under the
laws of the United States of America, as Trustee (the "Trustee").
WHEREAS, Florida National Banks of Florida, Inc. ("Florida National") has
heretofore executed and delivered to the Trustee an Indenture, dated as of May
1, 1987 (the "Indenture"), providing for the issuance of $75,000,000 aggregate
principal amount of is 9 7/8% Subordinated Capital Notes Due 1999 (herein and
therein called the "Securities"; and
WHEREAS, effective as of January 29, 1990, Florida National merged with and
into First Union Corporation of Florida ("First Union Florida"); and
WHEREAS, First Union Florida has heretofore executed and delivered to the
Trustee a First Supplemental Indenture, dated as of January 29, 1990 (the "First
Supplemental Indenture"), providing for the succession of First Union Florida to
Florida National under the Indenture and the assumption by First Union Florida
of the covenants of Florida National in the Indenture and in the Securities
contained; and
WHEREAS, effective as of the date of this Second Supplemental Indenture,
First Union Florida merged with and into First union; and
WHEREAS, Section 801(1) of the Indenture provides for the execution of an
indenture supplemental to the Indenture, in form satisfactory to the Trustee, to
evidence the succession of any successor corporation to First Union Florida, as
successor to Florida National, under the Indenture and the assumption of such
successor corporation of the covenants of First Union Florida, as successor to
Florida National, in the Indenture and in the Securities contained; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a
valid agreement of First Union, as the successor corporation to First Union
Florida, as successor to Florida National, under the Indenture, in accordance
with its terms, have been done.
NOW, THEREFORE, First Union and the Trustee hereby agree as follows:
1. From and after the date of this Second Supplemental Indenture, First
Union shall for all purposes be deemed to be the "Company", as such term is
defined in the Indenture and the Securities, as if First Union was originally so
named in the Indenture and the Securities, and, as such, First Union hereby
expressly assumes, from and after the date of this Second Supplemental
Indenture, the
<PAGE>
due and punctual payment of the principal and interest on all of the Securities
and the performance of every covenant of the Indenture, as supplemented by this
Second Supplemental Indenture, on the part of the Company to be performed or
observed.
2. From and after the date of this Second Supplemental Indenture, the
Holder of each Security Outstanding as of the date hereof shall have the right
to receive securities of First Union on the Exchange Date for such Security with
a Market Value equal to the principal amount of such Security, in accordance
with and subject to the provisions set forth in Article Thirteen of the
Indenture, as amended by the First Supplemental Indenture and this Second
Supplemental Indenture.
3. All provisions of this Second Supplemental Indenture shall be deemed to
be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by the First Supplemental Indenture and this Second Supplemental
Indenture, shall be read, taken and construed as one and the same instrument.
4. The Trustee accepts the trusts created by the Indenture, as supplemented
by the First Supplemental Indenture and this Second Supplemental Indenture, and
agrees to perform the same upon the terms and conditions in the Indenture, as
supplemented by the First Supplemental Indenture and this Second Supplemental
Indenture.
<PAGE>
5. The recitals contained in this Second Supplemental Indenture shall be
taken as statements of First Union, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Second Supplemental Indenture.
6. All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
7. This Second Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
8. This Second Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second supplemental
Indenture to be duly executed, and their respective seals to be hereunto affixed
and attested, all as of the date first above written.
FIRST UNION CORPORATION
ATTEST:
/s/ Carol R. Mullis By: /s/ Kent S. Hathaway
- -------------------------- --------------------------
Title: Title: Senior Vice President
[CORPORATE SEAL]
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
ATTEST:
By: /s/ Faye Wright
- -------------------------- --------------------------
Title: Title: Vice President
[CORPORATE SEAL]
Exhibit (5)
<TABLE>
<S> <C>
First Union Corporation One First Union Center (0013)
Legal Division Charlotte, North Carolina 28288
704 374-6828
FAX: 704 374-3425
</TABLE>
Marion A. Cowell, Jr.
Executive Vice President,
Secretary and General Counsel
January 12, 1999
Board of Directors
First Union Corporation
Charlotte, North Carolina 28288
Gentlemen:
I have acted as counsel for First Union Corporation (the "Corporation") in
connection with the registration on Form S-3 (the "Registration Statement") of
certain debt securities assumed or guaranteed by the Corporation in connection
with various acquisitions (as listed on the cover page of the Prospectus
included in the Registration Statement, the "Debt Securities"), related to
market-making transactions by and through Wheat First Securities, Inc., an
affiliate of the Corporation.
On the basis of such investigations as I deemed necessary, I am of the
opinion that the assumptions and the guarantees of the obligations under the
Debt Securities have been duly authorized, executed and delivered and
constitute legally binding obligations of the Corporation, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors's
rights and to general equity principles.
I note that, as of the date of this opinion, a judgment for money in an
action based on a Debt Security denominated in a foreign currency or currency
unit in a federal or state court in the United States ordinarily would be
enforced in the United States only in United States dollars. The date used to
determine the rate of conversion of the foreign currency or currency unit in
which a particular Debt Security is denominated into United States dollars will
depend upon various factors, including which court renders the judgment.
I hereby consent to the use of my name under the heading "Validity of
Securities" in the Prospectus included in the Registration Statement and to the
filing of this opinion as an Exhibit to the Registration Statement. In giving
this consent, I do not hereby admit that I am within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
MARION A. COWELL, JR.
Exhibit (23)(a)
CONSENT OF KPMG PEAT MARWICK LLP
Board of Directors
First Union Corporation
We consent to the incorporation by reference in the Registration Statement
of First Union Corporation on Form S-3 of our report dated May 15, 1998,
relating to the supplemental consolidated balance sheets of First Union
Corporation and subsidiaries as of December 31, 1997 and 1996, and the related
supplemental consolidated statements of income, changes in stockholders' equity
and cash flows for each of the years in the three-year period ended December
31, 1997, which report appears in the 1997 Supplemental Annual Report to
Stockholders which is included in First Union Corporation's Form 8-K dated May
26, 1998 which is incorporated by reference in the Registration Statement. We
also consent to the reference to our Firm under the caption "Experts."
KPMG PEAT MARWICK LLP
Charlotte, North Carolina
January 12, 1999
