EXHIBIT (4)(a)
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
This INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Instrument"), dated as of July 7, 2000 (the "Execution Date"), by and among
First Union Corporation, a corporation duly organized and existing under the
laws of the State of North Carolina (the "Company"), The Bank of New York, as
successor to Harris Trust and Savings Bank, a New York state banking corporation
(the "Resigning Trustee"), and Bank One Trust Company, National Association, a
national banking association (the "Successor Trustee").
WITNESSETH
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WHEREAS, the Company and the Resigning Trustee entered into an indenture,
dated as of March 15, 1986 (as amended and supplemented, the "Indenture"),
providing for the issuance by the Company from time to time of its unsecured
subordinated debentures, notes and other evidences of indebtedness (the
Securities"); and
WHEREAS, the Resigning Trustee has been acting as Trustee and Co-Security
Registrar under the Indenture; and
WHEREAS, Section 610 (b) of the Indenture provides that the Trustee may
resign and be discharged of the trust created by the Indenture by giving written
notice thereof to the Company; and
WHEREAS, the Resigning Trustee hereby gives written notice to the Company of
its resignation to become effective upon the acceptance of appointment by a
successor Trustee in accordance with the applicable requirements of Section 611
(a) of the Indenture; and
WHEREAS, Section 610 (e) of the Indenture provides that in case the Trustee
shall resign, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee; and
WHEREAS, Section 611 (d) of the Indenture provides that a successor Trustee
shall be qualified under the provisions of Article Six of the Indenture; and
WHEREAS, Section 611 of the Indenture provides every successor Trustee
appointed under the Indenture shall execute, acknowledge and deliver to the
Company and the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation of the retiring Trustee shall become effective and the
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
and
NOW, THEREFORE, pursuant to the Indenture and in consideration of the
covenants herein contained, it is agreed as follows (capitalized words and
phrases not otherwise defined in this Instrument shall have the meaning given
thereto in the Indenture):
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THE RESIGNING TRUSTEE
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1. Pursuant to the terms of the Indenture, the Resigning Trustee hereby
notifies the Company that it is resigning as Trustee and Co-Security Registrar
under the Indenture effective immediately upon the execution and delivery of
this Instrument by all the parties hereto (the "Effective Date").
2. Effective as of the Effective Date, the Resigning Trustee hereby assigns,
transfers and delivers to the Successor Trustee all (a) of its rights, powers,
trust duties and responsibilities of the Resigning Trustee under the Indenture
(including those in its role as Co-Security Registrar) and (b) property and
money held by the Resigning Trustee in its capacity as Trustee and Co-Security
Registrar under the Indenture, including, without limitation, the authenticated
Register, all printed but unauthenticated Securities and authenticated
Securities held by it as custodian for the Holders.
3. Pursuant to Section 611 of the Indenture, the Resigning Trustee agrees to
execute and deliver such further instruments and shall take such further actions
as the Successor Trustee or the Company may reasonably request so as to more
fully and certainly vest and confirm in the Successor Trustee all the rights,
titles, interests, capacities, privileges, trusts, duties and responsibilities
hereby assigned, transferred, delivered and confirmed to the Successor Trustee,
including without limitation, the execution and delivery of any instruments
required to re-perfect all liens that it may have on the trust in the name of
the Successor Trustee.
4. Promptly after the Effective Date, the Resigning Trustee shall provide
the governing documents listed on Exhibit A hereto to the Successor Trustee.
5. The Resigning Trustee hereby represents and warrants to the Successor
Trustee that:
(a) The Resigning Trustee has not received notice and has no knowledge that a
Default has occurred and is continuing under the Indenture;
(b) No covenant or condition contained in the Indenture has been waived by the
Resigning Trustee or by the Holders of the percentage in aggregate principal
amount of the Securities required by the Indenture to effect any such waiver;
(c) There is no action, suit, or proceeding pending or threatened against the
Resigning Trustee before any court or governmental authority arising out of any
action or omission by the Resigning Trustee as Trustee;
(d) The Resigning Trustee has not delegated to any other party any of its duties
as Trustee and has not appointed any authenticating agent; and
(e) The Resigning Trustee has lawfully and fully discharged its duties as
Trustee.
THE COMPANY
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1. Effective as of the Effective Date, the Company hereby accepts the
resignation of the Resigning Trustee and appoints the Successor Trustee as
successor in trust under the Indenture and confirms to the Successor Trustee all
of the rights, titles, interests, capacities, privileges, trusts, duties and
responsibilities of the Trustee under the Indenture.
<PAGE>
2. The Company agrees to execute and deliver such further instruments and to
take such further action as the Successor Trustee may reasonably request so as
to more fully and certainly vest in and confirm to the Successor Trustee all the
rights, titles, interests, capacities, privileges, trusts, duties and
responsibilities hereby assigned, transferred and delivered to the Successor
Trustee.
3. The Company hereby represents and warrants that to the best knowledge of
the Company there has been no notice of an Event of Default and no event which,
after notice or lapse of time or both, would become an Event of Default under
the terms of the Indenture, as of the Effective Date.
4. The Secretary or Assistant Secretary of the Company who is attesting to
the execution of this Instrument by the Company hereby certifies that Exhibit B
annexed hereto is a copy of the Board Resolution which was duly adopted by the
Board of Directors of the Company, which is in full force and effect on the date
hereof, and which authorized certain officers of the Company to (a) accept
Resigning Trustee's resignation as Trustee under the Indenture, and rescind the
designation of the Resigning Trustee as Co-Security Registrar; (b) appoint
Successor Trustee as Trustee under the Indenture; and (c) execute and deliver
such agreements and other instruments as may be necessary or desirable to
effectuate the succession of the Successor Trustee as Trustee under the
Indenture.
5. Pursuant to Section 610(f) of the Indenture, the Company shall give, or
cause to be given, notice substantially in the form of Exhibit C attached hereto
of the resignation of the Resigning Trustee and the appointment of the Successor
Trustee with respect to the Securities by mailing written notice of such event
by first class mail, postage prepaid, to all Holders as their names and
addresses appear in the Security Register. Each such notice shall include the
name of the Successor Trustee and the address of its Corporate Trust Office, as
specified below under "Miscellaneous".
6. The Company hereby represents and warrants to the Successor Trustee
that:
(a) The Company has performed or fulfilled each covenant, agreement, and
condition on its part to be performed or fulfilled under the Indenture;
(b) The Company has not appointed any Registrar or Paying Agent other than the
Resigning Trustee or a wholly-owned subsidiary of the Company; and
(c) The Company will continue to perform its obligations under the Indenture.
THE SUCCESSOR TRUSTEE
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1. Effective as of the Effective Date, the Successor Trustee hereby accepts
its appointment as successor Trustee under the Indenture and hereby acknowledges
and agrees that it shall be vested with all of the rights, titles, interests,
capacities, privileges, trusts, duties and responsibilities of the Trustee under
the Indenture. The Successor Trustee further acknowledges receipt from the
Resigning Trustee of all property and money held by the Resigning Trustee in its
capacity as Trustee under the Indenture, including, without limitation, the
authenticated Register, all printed but unauthenticated Securities and
authenticated Securities held by it as custodian for the Holders, and the
governing documents listed on Exhibit A attached hereto.
<PAGE>
2. The Successor Trustee hereby represents that it is qualified and eligible
under the provisions of Article Six of the Indenture to be appointed successor
Trustee and hereby accepts the appointment as successor Trustee, and
acknowledges and agrees that effective as of the Effective Date it shall become
vested with all of the rights, titles, interests, capacities, privileges,
trusts, duties and responsibilities of the Resigning Trustee as Trustee with
respect to all series of Securities with like effect as if originally named as
Trustee under the Indenture.
3. To the extent the Company deems it necessary or desirable in connection
with the resignation of the Resigning Trustee and appointment of the Successor
Trustee thereunder, the Successor Trustee agrees to cooperate with the Company
in filing one or more registration statements or post-effective amendments to
existing registration statements under the Securities Act of 1933, as amended,
and statements of eligibility under the Trust Indenture Act of 1939, as amended,
or reports under the Securities Exchange Act of 1934, as amended.
MISCELLANEOUS
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1. The parties hereto agree that as of the Effective Date, all references to
the Resigning Trustee as Trustee in the Indenture shall be deemed to refer to
the Successor Trustee. After the Effective Date, all notices or payments which
were required by the terms of the Indenture to be given or paid to the Resigning
Trustee, as Trustee shall be given or paid to:
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
153 W. 51st Street
New York, New York 10019
Attention: Corporate Trust Administration
The parties further agree that as of the Effective Date, the Company or a
wholly-owned subsidiary thereof shall be the Registrar with respect to all
series of Securities issued under the Indenture.
2. The resignation, appointment and acceptance effected hereby shall become
effective as of the opening of business on the Effective Date.
3. The Company acknowledges its obligations set forth in Section 607 of the
Indenture to compensate the Resigning Trustee, to reimburse the Resigning
Trustee for its reasonable expenses, disbursements and advances, and to
indemnify Resigning Trustee for, and to hold Resigning Trustee harmless against,
any loss, liability and expense incurred without negligence or bad faith on the
part of the Resigning Trustee and arising out of or in connection with the
acceptance or administration of the trust evidenced by the Indenture (which
obligations shall survive the execution hereof).
4. This Instrument shall be governed by and construed in accordance with
the laws of the State of New York.
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5. This Instrument may be executed in any number of counterparts, each of
which shall be an original, but which counterparts shall together constitute but
one and the same instrument.
6. Nothing contained in this Instrument shall in any way affect the
obligations or rights of the Company, the Resigning Trustee or any Holder of
Securities under the Indenture. This Instrument shall be binding upon and inure
to the benefit of the Company, the Resigning Trustee, the Successor Trustee and
their respective successors and assigns.
7. The parties hereby agree that from and after the Effective Date, all fees
payable by the Company to the Trustee under the Indenture shall henceforth be
invoiced by and paid to the Successor Trustee at such address and account as
shall hereafter be provided by the Successor Trustee to the Company.
8. Each of the parties hereto hereby represents, warrants and agrees for
itself that as of the Effective Date:
a) it has full power and authority to execute and deliver this
Instrument and to perform its obligations hereunder, and all such action has
been duly and validly authorized by all necessary proceedings on its part;
b) this Instrument has been duly authorized, executed and delivered by
it, and constitutes a legal, valid and binding obligation of it enforceable in
accordance with its terms, except as the enforceability of this Instrument may
be limited by bankruptcy, insolvency ,fraudulent transfer, reorganization,
moratorium and similar laws of general applicability affecting creditor's rights
and to general equity principles; and
c) at any time and from time to time after the execution and delivery
of this Instrument, to cooperate with each of the other parties hereto and to do
all such further acts and things as may be reasonably required to carry out and
effectuate the transactions contemplated by this Instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to
be duly executed and attested by their duly authorized officers, all as of the
date and year first above written.
FIRST UNION CORPORATION,
as Company
By:____________________________
Title:
Attest:________________________
THE BANK OF NEW YORK, as successor to
HARRIS TRUST AND SAVINGS BANK, as
Resigning Trustee
By:____________________________
Title:
Attest:________________________
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Successor Trustee
By:____________________________
Title:
Attest:________________________
