INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
This INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Instrument"), dated as of February 7,1996 (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, a New York banking corporation (the "Resigning
Trustee"), and Harris Trust and Savings Bank, an Illinois state banking
corporation (the "Successor Trustee").
WITNESSETH
WHEREAS, the Company and the Resigning Trustee (formerly known as
Irving Trust Company) (the "Original 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):
THE RESIGNING TRUSTEE
1. Pursuant to the terms of the Indenture, the Resigning Trustee
hereby notifies the Company that it is resigning as Trustee 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, 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.
THE COMPANY
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 and
Co-Security Registrar under the Indenture.
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.
2
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 designates
Successor Trustee as Co-Security Registrar; 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 and
Co-Security Registrar under the Indenture.
5. Pursuant to Section 610 (f) of the lndenture, 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".
THE SUCCESSOR TRUSTEE
1. Effective as of the Effective Date, the Successor Trustee hereby
accepts its appointment as successor Trustee and Co-Security Registrar
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 and
Co-Security Registrar 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 and Co-Security
Registrar under the Indenture, including, without limitation, 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.
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 Co-Security Registrar and hereby accepts
the appointment as successor Trustee and Co-Security Registrar, 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 and
3
Co-Security Registrar with respect to all series of Securities with like
effect as if originally named as Trustee and Co-Security Registrar 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
1. The parties hereto agree that as of the Effective Date, all
references to the Resigning Trustee as Trustee and Co-Security Registrar
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 and Co-Security Registrar shall be given or paid to:
HARRIS TRUST AND SAVINGS BANK
311 West Monroe Street
Attention: Indenture Trust Division
Chicago, Illinois 60606
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 obligation set forth in Section 607
of the Indenture 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 obligation
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.
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.
4
7. The parties hereby agree that from and after the Effective Date,
all fees payable by the Company to the Trustee and Co-Security Registrar
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.
5
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
Resigning Trustee
By:
Title:
Attest:
HARRIS TRUST AND SAVINGS
BANK, as Successor Trustee
By:
Title:
Attest:
6