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As filed with the Securities and Exchange Commission on July 14, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMERICA INCORPORATED
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 6711 38-1998421
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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COMERICA TOWER AT ONE DETROIT CENTER
500 WOODWARD AVENUE, SUITE 3100
DETROIT, MICHIGAN 48226
(313) 222-4000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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JUDITH C. DART, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
COMERICA INCORPORATED
500 WOODWARD AVENUE, 33RD FLOOR
DETROIT, MICHIGAN 48226
(313) 222-7937
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
DAVID D. JOSWICK, ESQ. LEE MEYERSON, ESQ.
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. SIMPSON THACHER & BARTLETT
150 WEST JEFFERSON, SUITE 2500 425 LEXINGTON AVENUE
DETROIT, MICHIGAN 48226 NEW YORK, NEW YORK 10017-3954
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after this registration statement becomes effective as
determined by market conditions.
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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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED(1) REGISTERED PER NOTE(1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
% Subordinated Notes...... $200,000,000 100% $200,000,000 $68,966
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(1) Estimated solely for purposes of determining the registration fee.
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.
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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 such State.
SUBJECT TO COMPLETION, DATED JULY 14, 1995
PROSPECTUS
$200,000,000
COMERICA INCORPORATED
SUBORDINATED DEBT SECURITIES
Comerica Incorporated ("Comerica"), directly or through agents designated
from time to time, or through dealers or underwriters also to be designated, may
offer from time to time in one or more series up to $200,000,000 aggregate
principal amount of its unsecured subordinated debt securities (the "Notes"), on
terms to be determined at the time of sale. The specific designation, aggregate
principal amount, maturity, rate and time of payment of interest, if any,
purchase price, any terms for redemption, any mandatory or optional sinking fund
or analogous provisions, whether the Notes are issuable in certificated or
uncertificated form, whether the Notes initially will be represented by a single
global debt security and the agents, dealers or underwriters, if any, in
connection with the sale of the Notes in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement (the
"Prospectus Supplement"). Comerica reserves the sole right to accept and,
together with its agents from time to time, to reject in whole or in part any
proposed purchase of Notes to be made directly or through agents.
The Notes will be subordinated to all present and future Senior
Indebtedness (as defined) of Comerica and, under certain circumstances, to Other
Financial Obligations (as defined) of Comerica. Payment of principal of the
Notes may be accelerated only in the case of certain events of bankruptcy or
insolvency of Comerica. There is no right of acceleration in the case of a
default in the payment of the principal of, or any premium or interest on, the
Notes or the performance of any agreement or covenant of Comerica. See
"Description of the Notes".
THE NOTES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK
OR NONBANK SUBSIDIARY OF COMERICA AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, OR OTHER GOVERNMENT ENTITY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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If an agent of Comerica or a dealer or underwriter is involved in the sale
of the Notes in respect of which this Prospectus is being delivered, the agent's
commission, dealer's purchase price, or underwriter's discount will be set forth
in, or may be calculated from, the Prospectus Supplement and the net proceeds to
Comerica from such sale will be the purchase price of such Notes less such
commission in the case of an agent, the purchase price of such Notes in the case
of a dealer or the public offering price less such discount in the case of an
underwriter, and less, in each case, the other attributable issuance expenses.
The aggregate proceeds to Comerica from all the Notes will be the purchase price
of the Notes sold less the aggregate of agents' commissions and underwriters'
discounts and other expenses of issuance and distribution. See "Plan of
Distribution" for possible indemnification arrangements for the agents, dealers
and underwriters.
The Notes will not be listed on any securities exchange, and there can be
no assurance that the Notes will be sold or that there will be a secondary
market for the Notes or if such secondary market develops, the liquidity of the
Notes in such secondary market.
This Prospectus may not be used to consummate sales of the Notes unless
accompanied by a Prospectus Supplement.
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The date of this Prospectus is July , 1995
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AVAILABLE INFORMATION
Comerica is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith Comerica files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, material filed by Comerica can be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
Comerica has filed with the Commission a Registration Statement on Form S-3
(together with any amendments thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus does
not contain all the information set forth in the Registration Statement and the
exhibits thereto, certain parts of which are omitted in accordance with the
rules and regulations of the Commission. For further information, reference is
hereby made to said Registration Statement
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Comerica pursuant to
the Exchange Act (File No. 1-10706) are incorporated by reference in this
Prospectus:
1. Comerica's Annual Report on Form 10-K for the year ended December
31, 1994.
2. Comerica's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1995.
All documents and reports filed by Comerica pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the date of the termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the dates of filing of such documents or reports. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Comerica will provide without charge to each person, including any
beneficial owner of any Note, to whom this Prospectus is delivered, upon the
oral or written request of any such person, a copy of any or all of the
foregoing documents incorporated herein by reference (other than exhibits to
such documents unless such exhibits are explicitly incorporated by reference
into such documents). Requests should be directed to Judith C. Dart, Executive
Vice President, General Counsel and Secretary, Comerica Incorporated, Comerica
Tower at Detroit Center, 500 Woodward Avenue, Detroit, Michigan 48226, Telephone
(313) 222-7937.
COMERICA INCORPORATED
General. Comerica is a registered bank holding company incorporated under
the laws of the State of Delaware, headquartered in Detroit, Michigan and was
formed in 1973 to acquire the outstanding common stock of Comerica Bank
(formerly Comerica Bank-Detroit), a Michigan banking corporation ("Comerica
Bank"). On June 18, 1992, Manufacturers National Corporation, a registered bank
holding company incorporated under the laws of the State of Delaware
("Manufacturers"), was merged with and into Comerica. Comerica was the surviving
corporation. The merger was accounted for as a pooling-of-interests. As of March
31, 1995, Comerica owned directly or indirectly all the outstanding common stock
(except for
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directors' qualifying shares, where applicable) of 9 banking and 35 active
nonbanking subsidiaries. At March 31, 1995, Comerica had total assets of
approximately $34.1 billion, total deposits of approximately $21.9 billion,
total loans (net of unearned income) of approximately $23.1 billion, and
shareholders' equity of approximately $2.5 billion. At March 31, 1995, Comerica
was the second largest bank holding company headquartered in Michigan in terms
of total assets.
Comerica's business strategy focuses on five core businesses in four
geographic markets. Those businesses are corporate banking, consumer banking,
private banking, institutional trust and investment management, and
international finance and trade services. Corporate banking incorporates highly
specialized units servicing a full range of company sizes with both credit and
non-credit products. Consumer banking provides deposit, credit and fee-based
products to individuals needing financial services but whose income or wealth do
not make them prospects for private banking services. Private banking is
oriented to servicing the financial needs of the affluent market as defined by
individual net income or worth. Institutional trust and investment management
activities involve providing companies, municipalities and other entities a wide
spectrum of investment management products and trust products such as master
trust, master custody, and corporate trust services, as well as administering
and serving as trustee for employee benefit plans. International finance and
trade services offer importers and exporters trade financing, letters of credit,
foreign exchange and international customhouse brokerage and freight forwarding
products. The core businesses are tailored to each of Comerica's four primary
geographic markets: the Midwest (currently Michigan and Illinois), Texas,
California, and Florida. The Midwest is the only market in which all five core
businesses are currently pursued. In California and Texas, the primary focus is
on corporate banking and private banking activities. In Florida, the primary
focus is on private banking.
On September 14, 1992, Comerica Bank, Comerica's principal banking
subsidiary, and Manufacturers Bank, N.A. (the principal banking subsidiary of
Manufacturers prior to its merger into Comerica on June 18, 1992) were merged,
with Comerica Bank being the surviving institution. Such merger was accounted
for using the pooling-of-interests method. At March 31, 1995, Comerica Bank had
approximately 280 branch offices in Michigan and total assets of approximately
$27.5 billion. At March 31, 1995, Comerica Bank was the second largest
commercial bank in Michigan in terms of deposits.
In Illinois, Comerica owns Comerica Bank-Illinois. At March 31, 1995,
Comerica Bank-Illinois had 28 offices in Illinois and total assets of
approximately $1.5 billion.
In Texas, Comerica owns Comerica Bank-Texas, which focuses on middle market
banking, small business banking, private banking and trust services in the
Houston and Dallas/Fort Worth, Texas area. At March 31, 1995, Comerica
Bank-Texas had total assets of approximately $3.5 billion and 58 offices. On
June 28, 1995, Comerica, QuestStar Bank, N.A., a national bank ("QuestStar"),
Comerica Texas Incorporated, a Texas corporation and parent of Comerica
Bank-Texas and wholly owned subsidiary of Comerica ("Comerica-Texas") and
Comerica Interim Incorporated, a Texas corporation and wholly owned subsidiary
of Comerica-Texas ("Interim") entered into an Agreement and Plan of
Reorganization and Merger providing for, among other things, the merger of
QuestStar into Interim with Interim being the surviving corporation. Subsequent
to the merger of QuestStar into Interim, Interim may, at Comerica's election, be
merged into Comerica Bank-Texas. The transaction is subject to regulatory and
QuestStar shareholder approval and is expected to be completed sometime in the
fourth quarter of 1995. Shareholders of QuestStar would receive cash in the
amount of approximately $25 million, subject to certain adjustments. At May 31,
1995, QuestStar had assets of approximately $196 million.
In California, Comerica owns Comerica Bank-California, which focuses on
middle market banking, small business and private banking, as well as trust
services, in the San Jose and Los Angeles areas, and University Bank & Trust
Company which provides similar services in the Palo Alto area. At March 31,
1995, Comerica Bank-California and University Bank & Trust Company
("University") had total assets of approximately $2.5 billion. They had 32
offices of which eleven are located in the San Francisco Bay Area. Comerica
Bank-California and University provide a wide array of services focused in
middle market banking, small business banking, high technology, commercial real
estate lending and mortgage banker financing. Comerica
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Bank-California and University also provide cash management and trade finance
services to corporate customers. They also target affluent and professional
clients and provide customized solutions for their private banking needs.
Specialized banking services include lines of credit, equipment loans,
residential mortgage loans, equity lines of credit and consumer loans. Comerica
Bank-California and University offer fully managed trust accounts for
individuals and companies, and administration, record keeping, and investment
services for 401(k) plans and pension and profit sharing plans. On May 2, 1995,
Comerica, Metrobank, a California bank ("Metrobank") and Comerica Holdings,
Incorporated, a California corporation and wholly owned subsidiary of Comerica
("Holdings") entered into an Agreement and Plan of Reorganization and Merger
providing for, among other things, the merger of Metrobank into Holdings with
Metrobank being the surviving corporation. Subsequent to the merger of Metrobank
into Holdings, Metrobank may, at Comerica's election, be merged into Comerica
Bank-California. The transaction is subject to regulatory and Metrobank
shareholder approval and is expected to occur sometime in the first quarter of
1996 and will be accounted for as a purchase. Shareholders of Metrobank would
receive Comerica Common Stock valued at approximately $120 million. At March 31,
1995, Metrobank had assets of approximately $1.3 billion.
Comerica serves trust and banking customers in Florida through Comerica
Bank & Trust, F.S.B., a federally chartered savings bank, which operates six
offices and had approximately $157 million in assets at March 31, 1995.
Competitors of Comerica's banking subsidiaries include commercial banks,
savings and loan associations, consumer and commercial finance companies,
leasing companies, credit unions and other financial services companies. Based
on the recent passage of the Interstate Banking and Branching Efficiency Act of
1994 (the "Interstate Act") and on legislation passed during 1985 that allows
Michigan-based banks to acquire or be acquired by banks in states with similar
laws in effect, Comerica believes that the level of competition will increase in
the future.
Comerica's principal executive offices are located at Comerica Tower at
Detroit Center, 500 Woodward Avenue, Suite 3100, Detroit, Michigan 48226, and
its telephone number is (313) 222-4000.
Regulatory Considerations. Comerica is a legal entity separate and distinct
from its banking and other subsidiaries. Most of Comerica's revenues result from
dividends paid to it by its bank subsidiaries. There are statutory and
regulatory requirements applicable to the payment of dividends and other
transfers of funds to Comerica by its subsidiary banks as well as by Comerica to
its shareholders.
Each state bank subsidiary that is a member of the Federal Reserve System
and each national banking association subsidiary is required by federal law to
obtain the prior approval of the Federal Reserve Board or the Comptroller of the
Currency (the "Comptroller"), as the case may be, for the declaration and
payment of dividends if the total of all dividends declared by the board of
directors of such bank in any year will exceed the total of (i) such bank's net
profits (as defined and interpreted by regulation) for that year plus (ii) the
retained net profits (as defined and interpreted by regulation) for the
preceding two years, less any required transfers to surplus. In addition, these
banks may only pay dividends to the extent that retained net profits (including
the portion transferred to surplus) exceed bad debts (as defined by regulation).
Under the foregoing dividend restrictions, in 1995 Comerica's subsidiary
banks, without obtaining governmental approvals, can declare aggregate dividends
of approximately $153 million from retained net profits of the preceding two
years, plus an amount approximately equal to the net profits (as measured under
current regulations), if any, earned for the period from January 1, 1995 through
the date of declaration. During 1994, Comerica's subsidiary banks paid $293
million in dividends.
The banking authorities in the states where Comerica owns state-chartered
banks also regulate the payment of dividends by banks organized in such states.
Generally, (i) California state banks such as Comerica Bank-California and
University may not declare or pay a dividend, without the prior written approval
of the California Superintendent of Banks, if the total of all dividends
declared by such bank in any calendar year would exceed the total of its net
profits, as defined, for that year combined with its retained net profits, as
defined, for the preceding two years, (ii) Michigan state banks such as Comerica
Bank may not pay a dividend if the amount of such dividend would exceed net
profits then on hand or if the surplus remaining
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after payment thereof would be less than 20 percent of the bank's capital, and
(iii) payment of dividends by Texas state banks such as Comerica Bank-Texas are
restricted by minimum capital requirements. Generally, an Illinois state
chartered bank, such as Comerica Bank-Illinois, may pay dividends only out of
net profits. If an Illinois bank's surplus does not equal its capital, it may
declare a dividend only after at least one-tenth of its net profits since the
declaration of the last dividend has been added to its surplus. An Illinois bank
may not pay dividends in an amount greater than net profits then on hand, less
deductions for losses and bad debts, as defined by statute.
The payment of dividends by Comerica's bank subsidiaries is also affected
by various regulatory requirements and policies, such as the requirement to
maintain capital at or above regulatory guidelines. In addition, if, in the
opinion of the applicable regulatory authority, a bank under its jurisdiction is
engaged in or is about to engage in an unsafe or unsound practice (which,
depending on the financial condition of the bank, could include the payment of
dividends), such authority may require, after notice and hearing, that such bank
cease and desist from such practice. The Federal Reserve Board and the
Comptroller have each indicated that paying dividends that deplete a bank's
capital base to an inadequate level would be an unsafe and unsound banking
practice. The Federal Reserve Board, the Comptroller and the Federal Deposit
Insurance Corporation ("FDIC") have issued policy statements which provide that
bank holding companies and insured banks should generally only pay dividends out
of current operating earnings.
There are also statutory limits on the other transfers of funds to Comerica
and its nonbank subsidiaries by its bank subsidiaries, whether in the form of
loans or other extensions of credit, investments in securities or asset
purchases. Such transfers by a subsidiary bank to Comerica or any such
nonbanking subsidiary are limited in amount to 10% of such bank's capital and
surplus, or 20% in the aggregate to Comerica and all such nonbanking
subsidiaries together. In addition, any such loans or extensions of credit are
required to be collateralized in specified amounts.
Proposals to change the laws and regulations governing banks, bank holding
companies, and other financial institutions are frequently raised in Congress,
in the state legislatures and before the various bank regulatory agencies.
Management is unable to determine the likelihood of any changes and the impact
such changes might have on Comerica.
Under Federal Reserve Board policy, Comerica is expected to act as a source
of financial strength to each of its subsidiary banks and, if necessary, to
commit resources to support each of such subsidiaries. This support may be
required at times when, absent such Federal Reserve Board policy, Comerica would
not otherwise be required to provide it.
Future Acquisitions. Comerica continues to review and evaluate potential
acquisitions in order to expand its core businesses in defined markets. Comerica
anticipates that from time to time in the future it will acquire companies which
complement and effectuate Comerica's business objectives in both
federally-assisted and negotiated transactions.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited consolidated ratios of
earnings to fixed charges for Comerica for the periods indicated:
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<CAPTION>
THREE MONTHS
ENDED MARCH
31, YEAR ENDED DECEMBER 31,
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1995 1994 1994 1993 1992 1991 1990
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<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed charges:*
Excluding interest on deposits.................. 2.09x 3.11x 2.61x 3.95x 3.31x 2.81x 2.30x
Including interest on deposits.................. 1.49 1.74 1.64 1.70 1.39 1.31 1.24
</TABLE>
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* The ratio of earnings to fixed charges is computed by dividing income before
income taxes and fixed charges by fixed charges. Fixed charges are defined as
interest expense (including or excluding interest on deposits, as the case may
be) and the portion of net rental expense estimated to be representative of
the interest factor.
USE OF PROCEEDS
Except as otherwise specified in a Prospectus Supplement, the net proceeds
from the sale of the securities offered by this Prospectus will be applied to
Comerica's general funds to be utilized for such corporate purposes as may be
determined by management, which may include investments in, and extensions of
credit to, existing and future subsidiaries, the funding of acquisitions of
banking and nonbanking institutions, (including the repurchase of issued and
outstanding shares of common stock of Comerica which may be used to fund part or
all of the acquisition consideration) and other general corporate purposes.
Except as otherwise indicated in a Prospectus Supplement, specific
allocations of the proceeds to such purposes will not have been made at the date
of the applicable Prospectus Supplement. The precise amount and timing of
investments in, and extensions of credit to, subsidiaries will depend upon their
funding requirements and the availability of other funds to Comerica and its
subsidiaries. Based upon the anticipated future financing requirements of
Comerica and its subsidiaries, Comerica expects that it will, from time to time,
engage in additional financings of a character and in an amount to be
determined.
DESCRIPTION OF THE NOTES
The Notes are to be issued under an indenture to be dated July , 1995
(the "Indenture") between Comerica and The Chase Manhattan Bank, N.A., as
Trustee (the "Trustee"). A copy of the form of the Indenture is filed as an
exhibit to the Registration Statement of which this Prospectus is a part. See
"Available Information." The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all of the provisions of the Indenture,
including the definition therein of certain capitalized terms used herein.
Wherever particular sections or defined terms of the Indenture are referred to,
it is intended that such sections or defined terms shall be incorporated herein
by reference. The following sets forth certain general terms and provisions of
the Notes. Further terms of each series of Notes will be set forth in the
Prospectus Supplement relating thereto.
General. The Indenture does not limit the aggregate principal amount of
Notes which may be issued thereunder and provides that Notes may be issued from
time to time in series. The Notes will be unsecured subordinated obligations of
Comerica. The Indenture does not limit Comerica's ability to incur other
indebtedness or contain provisions which would protect the Holders of, or owners
of beneficial interests in, the Notes against a sudden decline in credit quality
resulting from takeovers, recapitalizations or other similar restructurings.
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The Prospectus Supplement will describe the following terms of each series
of Notes in respect of which this Prospectus is being delivered: (1) the title
of the Notes; (2) any limit on the aggregate principal amount of the Notes; (3)
the date or dates on which the Notes will mature; (4) the rate or rates per
annum at which the Notes will bear interest, if any, or the manner in which such
rates will be determined and the date from which such interest, if any, will
accrue; (5) the Interest Payment Dates on which such interest (if any) on the
Notes will be payable and the Regular Record Dates for such Interest Payment
Dates; (6) the currency or currency unit, if other than United States dollars,
of payment of principal of, and premium and interest, if any, on, the Notes; (7)
if the Notes are to be issued in the form of one or more global securities (a
"Global Security"), the identity of the depositary for such Global Security or
Securities; (8) any mandatory or optional sinking fund or analogous provisions;
(9) any additions to, or modifications or deletions of, any Events of Default or
covenants and the remedies with respect thereto provided for with respect to the
Notes; (10) any redemption terms; (11) any provisions permitting defeasance of
Comerica's obligations with respect to the Notes or the Indenture; (12) if other
than the principal amount thereof, the portion of the principal amount of the
Notes payable upon acceleration of the maturity thereof; and (13) any other
specific terms of the Notes.
Unless otherwise specified in the Prospectus Supplement, principal of, and
premium and interest, if any, on, the Notes will be payable at the office or
agency of Comerica maintained for that purpose in the Borough of Manhattan, the
City of New York, and the Notes may be surrendered for transfer or exchange at
said office or agency; provided that payment of interest, if any, may be made at
the option of Comerica by check mailed to the address of the person entitled
thereto as it appears in the register for the Notes on the Regular Record Date
for such interest. (Sections 3.1 and 10.2) The office of the Trustee in the
Borough of Manhattan, the City of New York, will initially be designated as such
office or agency.
After the execution and delivery of the Indenture, the Company may deliver
Notes to the Trustee for authentication. Accompanying the delivery of the Notes
to the Trustee will be a Company Order for the authentication and delivery of
the Notes. In accordance with the Company Order, the Trustee will authenticate
and deliver the Notes. Each Note will be dated the date of its authentication.
(Section 3.3)
The Notes will be issued only in fully registered form without coupons and,
unless otherwise indicated in the Prospectus Supplement, if denominated in
United States dollars, will be issued in denominations of $1,000 or any integral
multiple thereof. No service charge will be made for any transfer or exchange of
the Notes, but Comerica may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith. Comerica shall not
be required (i) to issue, register the transfer of or exchange any Notes of any
series during a period beginning at the opening of business 15 days before the
date of the mailing of a notice of redemption of Notes of that series selected
for redemption and ending at the close of business on the date of such mailing
or (ii) to register the transfer of or exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of Notes being
redeemed in part. (Sections 3.2 and 3.5)
All moneys paid by Comerica to the Trustee or any Paying Agent for the
payment of principal of and premium and interest on any Notes which remain
unclaimed for two years after such principal, premium or interest shall have
become due and payable may be repaid to Comerica and thereafter the Holder of
such Notes shall look only to Comerica for payment thereof. (Section 10.3)
If any Notes are payable in a currency or currency unit other than United
States dollars, the special federal income tax and other considerations
applicable to such Notes will be described in the Prospectus Supplement relating
thereto.
The Notes may be issued as Original Issue Discount Securities (bearing no
interest or bearing interest at a rate which at the time of issue is below
market rates) to be sold at a substantial discount below their principal amount.
If any Notes are issued as Original Issue Discount Securities, the special
federal income tax and other considerations applicable to such Notes will be
described in the Prospectus Supplement relating thereto.
Global Securities. The Notes may be issued in whole or in part in the form
of one or more Global Securities that will be deposited with, or on behalf of, a
depositary (the "Depository") identified in the Prospectus Supplement relating
to such Notes. Unless and until it is exchangeable in whole or in part for
7
<PAGE> 9
Notes in definitive form, a Global Security may not be transferred except as a
whole by the Depository for such Global Security to a nominee of such Depository
or by a nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor of such
Depository or a nominee of such successor. (Section 2.4)
The specific terms of the depositary arrangement, if any, with respect to a
series of Notes will be described in the Prospectus Supplement relating to such
series. Comerica anticipates that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the Depository for such Global Security or its
nominee ("Participants") or persons that may hold interests through
Participants. Such accounts shall be designated by the underwriters or agents
with respect to the Notes underwritten or solicited by them. Comerica expects
that upon the issuance of a Global Security, the Depository for such Global
Security will credit, on its book-entry registration and transfer system, the
Participants' accounts with the respective principal amounts of the Notes
represented by such Global Security. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of such ownership interests
will be effected only through, records maintained by the Depository (with
respect to interests of Participants) and on the records of Participants (with
respect to interests of persons held through Participants). The laws of some
states may require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and such laws may impair the
ability to own, transfer or pledge beneficial interests in a Global Security.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or Holder of the Notes
represented by such Global Security for all purposes under the Indenture.
(Section 3.8) Except as provided below, owners of beneficial interests in a
Global Security will not be entitled to have the Notes represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of the Notes in definitive form and will not be
considered the owners or Holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in such a Global Security must rely on the
procedures of the Depository 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 Indenture. Comerica understands that
under existing industry practices, in the event that Comerica requests any
action of Holders or that an owner of a beneficial interest in such a Global
Security desires to take any action which a Holder is entitled to take under the
Indenture, the Depository would authorize the Participants holding the relevant
beneficial interests to take such action, and such Participants would authorize
beneficial owners owning through such Participants to take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Payment of principal of, and premium and interest, if any, on, Notes
registered in the name of a Depository or its nominee will be made to the
Depository or its nominee, as the case may be, as the registered owner of the
Global Security representing such Notes. None of Comerica, the Trustee, any
Paying Agent or any other agent of Comerica or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global
Security for such Notes or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Comerica expects that upon receipt of any payment of principal of, or
premium or interest on, a Global Security, the Depository will immediately
credit Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
as shown on the records of the Depository. Payments by Participants to owners of
beneficial interests in such Global Security held through such Participants will
be the responsibility of such Participants, as is now the case with securities
held for the accounts of customers registered in "street name."
If the Depository for any Notes represented by a Global Security notifies
Comerica that it is unwilling or unable to continue as Depository or ceases to
be a clearing agency registered under the Exchange Act and a successor
Depository is not appointed by Comerica within ninety days after receiving such
notice or becoming aware that the Depository is no longer so registered,
Comerica will issue such Notes in definitive form upon
8
<PAGE> 10
registration of transfer of, or in exchange for, such Global Security. In
addition, Comerica may at any time and in its sole discretion determine not to
have the Notes represented by one or more Global Securities and, in such event,
will issue Notes in definitive form in exchange for all of the Global Securities
representing such Notes. (Section 3.5)
Subordination of Notes. The Notes are expressly subordinated in right of
payment, to the extent set forth in the Indenture, to all Senior Indebtedness
(as defined below). (Section 13.1) In certain events of insolvency, the Notes
will, to the extent set forth in the Indenture, also be effectively subordinated
in right of payment to the prior payment of all Other Financial Obligations (as
defined below). (Section 13.15)
If Comerica shall default in the payment of any principal of, premium, if
any, or interest, if any, on any Senior Indebtedness when the same becomes due
and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, or if any event of default with
respect to Senior Indebtedness permitting the holders thereof to accelerate the
maturity thereof shall have occurred and be continuing, or any judicial
proceeding shall be pending with respect to any such default in payment or event
of default then, unless and until such default or event of default shall have
been cured or waived or shall have ceased to exist or such judicial proceeding
shall be no longer pending, no direct or indirect payment (in cash, property,
securities, by set-off, or otherwise) shall be made for principal of or premium
or interest on the Notes, or in respect of any purchase or other acquisition of
any of the Notes. (Section 13.4) "Senior Indebtedness" of Comerica means the
principal of, premium, if any, and interest on all indebtedness for money
borrowed or purchased by Comerica, or borrowed by another and guaranteed by
Comerica (including any deferred obligation for the payment of the purchase
price of property or assets evidenced by a note or similar agreement), whether
now outstanding or subsequently created, assumed or incurred, and any
amendments, deferrals, renewals or extensions of any such Senior Indebtedness,
other than (i) any obligation as to which it is provided that such obligation is
not to be senior in right of payment to the Notes and (ii) the Notes. (Section
1.1) At March 31, 1995, Comerica had approximately $149 million of Senior
Indebtedness outstanding. The Indenture does not limit the amount of additional
Senior Indebtedness which Comerica may incur.
In the event of any insolvency, bankruptcy, receivership, reorganization,
readjustment of debt, assignment for the benefit of creditors, marshaling of
assets and liabilities, or similar proceedings relating to, or any liquidation,
dissolution, or winding-up of, Comerica, whether voluntary or involuntary, all
obligations of Comerica to holders of Senior Indebtedness shall be entitled to
be paid in full (or provision shall be made for such payment) before any payment
shall be made on account of the principal of or premium or interest on the
Notes. In the event of any such proceeding, if any payment by or distribution of
assets of Comerica of any kind or character, whether in cash, property, or
securities (other than securities of Comerica or any other corporation provided
for by a plan of reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the Notes, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), shall be received by the Trustee or the
Holders of the Notes before all Senior Indebtedness is paid in full, such
payment or distribution shall be held (in trust if received by the Holders of
the Notes) for the benefit of the holders of such Senior Indebtedness and shall
be paid over to the trustee in bankruptcy or other Person making payment or
distribution of the assets of Comerica for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness. (Section 13.2) If, upon
any such payment or distribution of assets to creditors, there remain, 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 Notes (as defined in the Indenture, "Excess
Proceeds") and if, at such time, any person entitled to payment pursuant to the
terms of Other Financial Obligations has 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 Notes. Unless otherwise specified
in the Prospectus Supplement relating to the particular series of Notes, the
term "Other Financial Obligations" includes all obligations of Comerica to make
payment
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<PAGE> 11
pursuant to the terms of financial instruments, such as: (i) securities
contracts and currency and foreign exchange contracts, and (ii) derivative
instruments, such as swap agreements (including interest rate and currency and
foreign exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange agreements, options,
commodity futures contracts and commodity options contracts, other than (x)
obligations on account of Senior Indebtedness and (y) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate to the
Notes. (Section 1.1)
By reason of such subordination, in the event of the bankruptcy or
insolvency of Comerica or similar event, whether before or after maturity of the
Notes, holders of Senior Indebtedness or of Other Financial Obligations may
receive more, ratably, and Holders of the Notes having a claim pursuant to the
Notes may receive less, ratably, than creditors of Comerica who do not hold
Senior Indebtedness, Other Financial Obligations or Notes.
In addition, in the event of the insolvency, bankruptcy, receivership,
conservatorship or reorganization of Comerica, the claims of the Holders of the
Notes would be subject as to enforcement to the broad equity power of a federal
bankruptcy court, and to the determination by that court of the nature of the
rights of the Holders.
Consolidation, Merger, Sale or Conveyance. Comerica may, without the
consent of any Holder of the Notes, merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
corporation, provided that the successor corporation (if other than Comerica)
shall be a corporation organized and existing under the laws of the United
States of America or a State thereof or the District of Columbia and such
corporation shall expressly assume Comerica's obligations under the Indenture
and on the Notes, and Comerica or such successor corporation, as the case may
be, shall not be in default in the performance of any covenant or condition of
the Indenture immediately after such merger, consolidation, sale or conveyance.
In addition, Comerica may, without the consent of any Holder of the Notes,
convey its assets substantially as an entirety to any Person in connection with
a transfer that is assisted by a federal bank regulatory authority and in such
case Comerica's obligations under the Indenture need not be assumed by the
entity acquiring such assets. (Section 8.1)
Events of Default and Limited Rights of Acceleration. Unless otherwise
provided in the applicable Prospectus Supplement, the Indenture defines an Event
of Default as any one of the following events: (a) default for 30 days in the
payment of any interest upon any Notes when it becomes due and payable; (b)
default in the payment of the principal of (or premium, if any, on) any Note at
its maturity; (c) default in the deposit of any sinking fund payment, when and
as due by the terms of the Notes; (d) default in the performance, or breach, of
any covenant or warranty of the Company (other than a covenant or warranty
included in the Indenture solely for the benefit of a series of Notes other than
the Notes) which continues for 60 days after the holders of at least 25% in
principal amount of Outstanding Notes have given written notice as provided in
the Indenture; (e) certain events of bankruptcy, insolvency or reorganization of
the Company; or (f) any other Events of Default as may be specified in a
Prospectus Supplement with respect to the Notes. (Section 5.1) An Event of
Default under one series of Notes will not necessarily be an Event of Default
with respect to any other series of Notes.
If an Event of Default of a type set forth in clause (e) above with respect
to the Notes of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of at least 25% in aggregate principal amount
of the Outstanding Notes of that series may declare the principal amount (or, if
the Notes of that series are Original Issue Discount Securities, such portion of
that principal amount as may be specified in the terms of that series) of all
the Notes of that series to be due and payable immediately. At any time after a
declaration of acceleration with respect to Notes of any series 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 the Outstanding Notes of
that series may, under certain circumstances, rescind and annul such
acceleration. (Section 5.2)
The Indenture does not provide for any right of acceleration of the payment
of the principal of a series of Notes upon a default in the payment of
principal, premium, if any, or interest or a default in the performance
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<PAGE> 12
of any covenant or agreement in the Notes of that series or in the Indenture.
Accordingly, the Trustee and the Holders will not be entitled to accelerate the
maturity of these Notes upon the occurrence of any of the Events of Default
described above, except for those described in clause (e) above. If a default in
the payment of principal, premium, if any, or interest or in the performance of
any covenant or agreement in the Notes of any series or in the Indenture occurs,
the Trustee may, subject to certain limitations and conditions, seek to enforce
payment of such principal, premium, if any, or interest on the Notes of that
series, or the performance of such covenant or agreement. (Section 5.3)
The Indenture provides that, subject to the duty of the Trustee during the
continuance of an Event of Default to act with the required standard of care,
the Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable indemnity. (Section
6.3) Subject to certain limitations, the Holders of a majority in aggregate
principal amount of the Outstanding Notes of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Notes of that series. (Section 5.12) The right of a
Holder of any Notes to institute a proceeding with respect to the Indenture is
subject to certain conditions precedent, but each Holder has an absolute right
to receive payment of principal, premium and interest, if any, when due and to
institute suit for the enforcement of any such payment. (Sections 5.7 and 5.8)
Comerica is required to furnish to the Trustee annually a statement as to
the performance by Comerica of certain of its obligations under the Indenture
and as to any default in such performance. (Sections 1.2 and 10.4) The Trustee
may withhold notice to Holders of any default (except in payment of principal,
premium, or interest, if any) if it in good faith determines that it is in the
interests of the Holders to do so.
Modifications and Waiver. The Indenture provides that Comerica and the
Trustee may enter into a supplemental indenture to amend the Indenture or the
Notes without the consent of any Holder of any Outstanding Notes: (1) to
evidence the succession of another Person to Comerica and the assumption by such
successor of Comerica's obligations under the Indenture; (2) to add to the
covenants of Comerica further covenants, restrictions or conditions for the
protection of the Holders of all or any particular series of Notes; (3) to add
or change any of the provisions of the Indenture necessary to facilitate the
issuance of Notes in bearer form; (4) to eliminate or change any provision of
the Indenture prior to the issuance of the series that is entitled to the
benefit of such provision; (5) to establish the terms and conditions of Notes of
any series; (6) to provide for the acceptance of appointment by a successor
trustee or to add or change any of the provisions of the Indenture necessary to
provide for or facilitate the administration of the trust by more than one
Trustee; (7) to cure any ambiguity, defect or inconsistency or to make such
other provision in regard to matters or questions arising under the Indenture
which do not adversely affect the interests of the Holders of the Notes; (8) to
secure the Notes; (9) to provide for the conversion or exchange of Notes of a
particular series into or for other securities of Comerica; or (10) to add
additional Events of Default. (Section 9.1)
In addition to the foregoing, modifications and amendments of the Indenture
may be made by Comerica and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Notes of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Notes affected thereby, (a) change the stated maturity date of the
principal of, or any premium or installment of interest, if any, on any Notes,
(b) reduce the principal amount of, or premium or interest, if any, on, any
Notes, (c) reduce the amount of principal on an Original Issue Discount Security
payable upon acceleration of the maturity thereof, (d) change the currency of
payment of principal of, or premium or interest, if any, on, any Notes, (e)
impair the right to institute suit for the enforcement of any such payment on or
with respect to any Notes, (f) reduce the percentage in principal amount of
Outstanding Notes of any series the consent of whose Holders is required for
modification or amendment of the Indenture or for any waiver. (Section 9.2)
The Holders of a majority in aggregate principal amount of the Outstanding
Notes of each series may, on behalf of all Holders of Notes of that series,
waive, insofar as that series is concerned, compliance by Comerica with certain
restrictive provisions of the Indenture. (Section 10.8) The Holders of a
majority in aggregate principal amount of the Outstanding Notes of each series
may, on behalf of all Holders of Notes of
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that series, waive any past default under the Indenture with respect to Notes of
that series, except a default in the payment of principal, or of premium or
interest, if any, or in respect of a provision which under the Indenture cannot
be modified or amended without the consent of the Holder of each Outstanding
Notes of that series. (Section 5.13)
Satisfaction and Discharge. The Trustee will discharge the Indenture upon
Company Request when all the authenticated and delivered Notes have been
(a) delivered to the Trustee for cancellation, or (b) the Company has deposited
or caused to be deposited with the Trustee, funds to be held in trust in an
amount sufficient to pay and discharge the entire indebtedness on the Notes not
previously delivered to the Trustee and the Notes have (i) become due and
payable, (ii) will become due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within one year. (Section 4.1)
Governing Law. The Indenture and the Notes will be governed by and
construed in accordance with the laws of the State of New York.
Information Concerning the Trustee. Comerica and its subsidiaries maintain
deposit accounts and conduct other banking transactions with the Trustee in the
ordinary course of business.
PLAN OF DISTRIBUTION
Comerica may offer and sell the Notes to or through underwriting syndicates
represented by managing underwriters, which may include Lehman Brothers Inc., to
or through underwriters without a syndicate, to investors directly or through
dealers or agents or any combination of any such methods of sale. The Prospectus
Supplement with respect to each series of the Notes will set forth the terms of
the offering, including the name or names of any underwriters, dealers or
agents, the purchase price and the net proceeds to Comerica from such sale, any
underwriting discounts, agency fees and other items constituting underwriters'
or agents' compensation as well as any indemnification by Comerica, any initial
public offering price and any discounts or concessions allowed, re-allowed or
paid to dealers.
If any underwriters are involved in the offer and sale of the Notes, such
Notes will be acquired by the underwriters and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the accompanying Prospectus Supplement, the
obligations of the underwriters to purchase the Notes will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all the
Notes described in such Prospectus Supplement if any are purchased. Any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time.
Underwriters, dealers and agents may be entitled, under agreements entered
into with Comerica, to indemnification by Comerica against certain liabilities,
including liabilities under the Securities Act of 1933, as amended.
Certain of the underwriters, dealers or agents may be engaged in
transaction with, and perform services for, Comerica or one or more of its
affiliates in the ordinary course of business.
The place and time of delivery for the Notes in respect of which this
Prospectus is delivered will be set forth in the accompanying Prospectus
Supplement.
LEGAL OPINIONS
The validity of the Notes will be passed upon for Comerica by Miller,
Canfield, Paddock and Stone, P.L.C., 150 West Jefferson, Suite 2500, Detroit,
Michigan 48226, and for the underwriters and agents, if any, by Simpson Thacher
& Bartlett (a partnership which includes professional corporations), New York,
New York.
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EXPERTS
The consolidated financial statements of Comerica incorporated by reference
to the Comerica Annual Report on Form 10-K for the fiscal year ended December
31, 1994, have been audited by Ernst & Young LLP, independent accountants and
have been so incorporated herein in reliance upon such reports, given on the
authority of such firm as an expert in auditing and accounting.
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NO DEALER SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NON CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY COMERICA, ANY AGENT, UNDERWRITER OR DEALER OR ANY
OTHER PERSON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY
PERSON OR BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION MAY NOT
LAWFULLY BE MADE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAD
BEEN NO CHANGE IN THE AFFAIRS OF COMERICA SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
Comerica Incorporated................. 2
Consolidated Ratios of Earnings to
Fixed Charges....................... 6
Use of Proceeds....................... 6
Description of the Notes.............. 6
Plan of Distribution.................. 12
Legal Opinions........................ 12
Experts............................... 13
</TABLE>
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$200,000,000
COMERICA INCORPORATED
SUBORDINATED
DEBT SECURITIES
----------------------------
PROSPECTUS
July , 1995
----------------------------
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<PAGE> 16
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of the estimated amounts of all
expenses in connection with the sale and distribution of the securities
registered hereby. All such amounts are estimates except the SEC registration
fee.
<TABLE>
<S> <C>
SEC registration fee.............................................................. $ 68,966
Rating agency fees................................................................ 30,000
Trustee's fees.................................................................... 32,500
Printing.......................................................................... 15,000
Legal fees and expenses........................................................... 15,000
Accountants' fees and expenses.................................................... 25,000
Blue Sky fees and expenses........................................................ 15,000
Miscellaneous..................................................................... 15,000
--------
Total........................................................................ $216,466
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The General Corporation Law of the State of Delaware ("DGCL") provides that
a Delaware corporation, such as Comerica Incorporated ("Comerica"), may
indemnify a director or officer against his or her expenses and judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with any action, suit or proceeding (other than an action by or in the right of
the corporation) involving such person by reason of the fact that such person is
or was a director or officer, concerning actions taken in good faith and in a
manner reasonably believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The DGCL also provides
that in derivative actions, Comerica may indemnify its directors and officers
against expenses actually and reasonably incurred to the extent that such
directors or officers have been successful on the merits or otherwise in any
such action, suit or proceeding or in the defense of any claim, issue or matter
therein. Under the DGCL, no indemnification shall be made with respect to any
claim, issue or matter as to which such director or officer shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court shall determine upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, such director or
officer is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper. The DGCL also generally permits the advancement of
a director's or officer's expenses, including by means of mandatory charter or
Bylaw provision to that effect, in lieu of requiring the authorization of such
advancement by the Board of Directors in specific cases. Section 12 of Article V
of Comerica's Bylaws implements such provisions and provides as follows:
INDEMNIFICATION AND INSURANCE
(a) Comerica shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of Comerica) by reason of the fact that
he or she is or was a Director, officer, employee of Comerica or is or was
serving at the request of Comerica as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interest of
Comerica, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Any person who is
or was an agent of Comerica may be indemnified to the same extent as hereinabove
provided. In addition, in the event any such action, suit or proceeding is
threatened or instituted against a spouse to whom a director or officer is
legally married at the time such director or officer is covered
II-1
<PAGE> 17
under the indemnification provided herein which action, suit or proceeding
arises solely out of his or her status as the spouse of a director or officer,
including, without limitation, an action, suit or proceeding that seeks damages
recoverable from marital community property of the director or officer and his
or her spouse, property owned jointly by them or property purported to have been
transferred from the director or officer to his or her spouse, the spouse of the
director or officer shall be indemnified to the same extent as hereinabove
provided. The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of Comerica, and, with respect to any criminal
action or proceeding, raise any inference that he or she had reasonable cause to
believe that his or her conduct was unlawful.
(b) Comerica shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of Comerica to procure a judgment in its favor by reason
of the fact that he or she is or was a Director, officer, or employee of
Comerica, or is or was serving at the request of Comerica as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of Comerica, and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to Comerica unless and only to the extent that the court
in which such action or suit was brought shall determine upon application, that
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Any person who is or was an agent of
Comerica may be indemnified to the same extent hereinabove provided. In
addition, in the event any such action or suit is threatened or instituted
against a spouse to whom a director or officer is legally married at the time
such director or officer is covered under the indemnification provided herein
which action or suit arises solely out of his or her status as the spouse of a
director or officer, including, without limitation, an action or suit that seeks
damages recoverable from marital community property of the director or officer
and his or her spouse, property owned jointly by them or property purported to
have been transferred from the director or officer to his or her spouse, the
spouse of the director or officer shall be indemnified to the same extent as
hereinabove provided.
(c) To the extent that a Director, officer, spouse of a Director or
officer, employee or agent of Comerica has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this Section, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
(unless ordered by a court) shall be made by Comerica only as authorized in the
specific case upon a determination that indemnification of the Director,
officer, spouse of a Director or officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in subsections (a) and (b) of this Section. Such determination shall be
made (1) by the Board of Directors by a majority vote of the quorum consisting
of Directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or even if obtainable a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, or (3)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
Director, or spouse of an officer or Director, in defending a civil or criminal
action, suit or proceeding may be paid by Comerica in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the Director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by
Comerica as authorized in this Section. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
II-2
<PAGE> 18
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this Section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
(g) Comerica may purchase and maintain insurance on behalf of any person
who is or was a Director, officer, spouse of a Director or officer, employee or
agent of Comerica, or is or was serving at the request of Comerica as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his or her status as
such, whether or not Comerica would have the power to indemnify such person
against such liability under the provisions of this Section.
(h) For the purpose of this Section, references to "Comerica" include all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation so that any person who is or was a director,
officer, spouse of a director or officer, employee or agent of such a
constituent corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Section with respect to the resulting or
surviving corporation as he or she would if he or she had served the resulting
or surviving corporation in the same capacity.
(i) For the purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan, and
reference to "serving at the request of Comerica" shall include any service as a
Director, officer, employee or agent of Comerica which imposes duties on, or
involves services by, such Director, officer, employee or agent of Comerica with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he or she reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of Comerica" as referred to in this Section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a Director, officer,
employee or agent, and with respect to any spouse of a director or officer,
shall continue following the time the director or officer spouse ceases to be a
director or officer even if the marriage of the individuals terminates prior to
the end of the period of coverage, and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 (relating to liability for
unauthorized acquisitions or redemptions of, or dividends on, capital stock) of
the DGCL or (iv) for any transaction from which the director derived an improper
personal benefit. At the 1987 Annual Meeting of Comerica's shareholders, the
shareholders approved an amendment to Comerica's Restated Certificate of
Incorporation to include such a provision.
Comerica has entered into Indemnification Agreements (the "Agreements")
with each of its directors pursuant to which Comerica agrees (i) to indemnify
each such director to the fullest extent permitted by any combination of (a) the
benefits provided by the indemnification provisions of Comerica's Bylaws as in
effect on the date of such Agreement, (b) the benefits provided by the
indemnification provisions of Comerica's Bylaws in effect at the time such
indemnified costs are incurred by such director, (c) the benefits allowable
under the DGCL in effect at the date of such Agreement or as the same may be
amended (but in the case of any such amendment, only to the extent that such
amendment permits Comerica to provide broader indemnification than such law
permits Comerica to provide prior to such amendment), (d) the benefits allowable
under the law of the jurisdiction under which Comerica is organized at the time
such indemnified
II-3
<PAGE> 19
costs are incurred by such director, (e) the benefits available under any
Directors' and Officers' Insurance or other liability insurance obtained by
Comerica and (f) the benefits available to the fullest extent authorized to be
provided to such director by Comerica under the non-exclusivity provisions of
the Bylaws of Comerica and the DGCL, against liabilities and expenses incurred
by reason of such person serving as a director or officer of Comerica or, at
Comerica's request, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise or with
respect to employee benefit plans; (ii) to advance certain expenses to such
persons; and (iii) except under certain circumstances to purchase and maintain
in effect one or more Directors' and Officers' insurance policies.
No indemnification, reimbursement, or payments are required of Comerica
under the Agreements (except to the extent it is provided from policies of
insurance carried by Comerica): (1) with respect to any claim as to which such
director shall have been finally adjudged by a court of competent jurisdiction
to (a) have acted in bad faith, (b) be liable for acts or omissions which
involve intentional misconduct, a knowing violation of law or of such director's
duty of loyalty to Comerica or its shareholders, (c) have authorized a
redemption or dividend on Comerica's stock which is prohibited by Delaware law
or (d) has effected any transaction from which such director has derived an
improper personal benefit within the meaning of 102(b)(7) of the DGCL, except to
the extent that such court, or another court having jurisdiction, shall
determine upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, such director is fairly and
reasonably entitled to indemnity for such indemnified costs as the court shall
deem proper; (2) with respect to any payment determined by final judgment of a
court, or other tribunal having jurisdiction over the question, to be unlawful;
and (3) with respect to any obligation of such director under Section 16(b) of
the Securities Exchange Act of 1934, as amended.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
director and officers out of their performance in such capacities or arising on
the part of Comerica out of its foregoing indemnification provisions, subject to
certain exclusions and to the policy limits.
ITEM 16. EXHIBITS
Item 601
Regulation S-K
Exhibit Reference
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- -------- ----------------------------------------------------------------------------------
<S> <C>
(1) Form of Underwriting Agreement.
(4) Form of Indenture (which includes form of Note) between Comerica and The Chase
Manhattan Bank, N.A., as Trustee.
(5) Opinion of Miller, Canfield, Paddock and Stone, P.L.C.
(12) Statement re Computation of Ratios.
(23)(a) Consent of Ernst & Young, LLP independent public accountants.
(23)(b) Consent of Miller, Canfield, Paddock and Stone, P.L.C. (Included in Exhibit 5).
(24) Power of Attorney.
(25) Statement of Eligibility of Trustee.
(27) Financial Data Schedule. Schedule has been omitted because it is not required.
</TABLE>
ITEM 17 UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing
provisions or otherwise, 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
the
II-4
<PAGE> 20
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 person
in connection with the securities being registered, the registrant, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
The undersigned registrant hereby undertakes:
(1) 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 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (on 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 end 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% 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 (i) and (ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) 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.
(3) 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.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission under section 305(b)(2) of
the Act.
II-5
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Detroit, State of
Michigan, on the 14th of July, 1995.
COMERICA INCORPORATED
By: /s/ EUGENE A. MILLER
--------------------------------------
Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
----------- ----- ----
<S> <C> <C>
(1) Principal Executive Officer:
/s/ EUGENE A. MILLER Chairman and Chief Executive July 14, 1995
- ------------------------------------- Officer
Eugene A. Miller
(2) Principal Financial Officer:
/s/ RALPH W. BABB Executive Vice President July 14, 1995
- ------------------------------------- and Chief Financial Officer
Ralph W. Babb
(3) Controller and Principal Accounting
Officer:
/s/ ARTHUR W. HERMANN Senior Vice President July 14, 1995
- -------------------------------------
Arthur W. Hermann
(4) Directors:
* Director July 14, 1995
- -------------------------------------
E. Paul Casey
* Director July 14, 1995
- -------------------------------------
James F. Cordes
* Director July 14, 1995
- -------------------------------------
J. Philip DiNapoli
* Director July 14, 1995
- -------------------------------------
Max M. Fisher
* Director July 14, 1995
- -------------------------------------
John D. Lewis
</TABLE>
II-6
<PAGE> 22
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
----------- ----- ----
<S> <C> <C>
* Director July 14, 1995
- -------------------------------------
Patricia Shontz Longe, Ph.D.
* Director July 14, 1995
- -------------------------------------
Wayne B. Lyon
* Director July 14, 1995
- -------------------------------------
Gerald V. MacDonald
* Director July 14, 1995
- -------------------------------------
Eugene A. Miller
* Director July 14, 1995
- -------------------------------------
Michael T. Monahan
* Director July 14, 1995
- -------------------------------------
Alfred A. Piergallini
* Director July 14, 1995
- -------------------------------------
Alan E. Schwartz
Director July , 1995
- -------------------------------------
Howard F. Sims
*By: /s/ ROBERT C. SHROSBREE
- -------------------------------------
Robert C. Shrosbree
By power of attorney
</TABLE>
II-7
<PAGE> 23
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION PAGE NO.
- -------- ----------- --------
<S> <C> <C>
(1) Form of Underwriting Agreement.
(4) Form of Indenture (which includes form of Note) between Comerica and The
Chase Manhattan Bank, N.A., as Trustee.
(5) Opinion of Miller, Canfield, Paddock and Stone, P.L.C.
(12) Statement re Computation of Ratios.
(23)(a) Consent of Ernst & Young, LLP independent public accountants.
(23)(b) Consent of Miller, Canfield, Paddock and Stone, P.L.C. (Included in
Exhibit 5).
(24) Power of Attorney.
(25) Statement of Eligibility of Trustee.
(27) Financial Data Schedule. Schedule has been omitted because it is not
required.
</TABLE>
<PAGE> 1
EXHIBIT 1
Debt Securities
COMERICA INCORPORATED
UNDERWRITING AGREEMENT
Dated the date set forth
in Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Gentlemen:
Comerica Incorporated, a Delaware corporation (the "Company"),
proposes to issue and sell to you and the other underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities") to be issued under the indenture (the
"Indenture") identified in such Schedule I, between the Company and the trustee
(the "Trustee") identified therein and having the terms set forth therein. If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives" shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to each Underwriter that:
(a) A registration statement in respect of the Securities
(the file number of which is set forth on Schedule I hereto) has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed
with the Commission in the form heretofore delivered or to be
delivered to the Representatives, and such registration statement in
such form has been declared effective by the Commission and no stop
order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
<PAGE> 2
2
such registration statement being hereinafter called a "Preliminary
Prospectus"); if any post-effective amendment to such registration
statement has been filed with the Commission prior to the date of this
Agreement, the most recent such amendment has been declared effective
by the Commission. As used in this Agreement, "Effective Date" means
the date as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by
the Commission; "Registration Statement" means such registration
statement, as amended at the Effective Date, including all material
incorporated by reference therein; "Prospectus" means and the form of
prospectus relating to the Securities, as first filed pursuant to Rule
424 ("Rule 424") under the Securities Act of 1933, as amended (the
"Securities Act"), as such form of prospectus may be supplemented to
reflect the terms of the Securities and the terms of offering thereof;
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Securities
Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and incorporated
therein by reference; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of
the Company filed with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act after the Effective Date that is
incorporated by reference in the Registration Statement.
(b) The Registration Statement and the Prospectus conform,
and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Securities Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission thereunder, and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall apply only to amendments or
supplements filed or made during the prospectus delivery period; and
provided further, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
<PAGE> 3
3
Company by an Underwriter through the Representatives expressly for
use in the Prospectus;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act and the Rules and Regulations
or the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; any further documents so filed and incorporated by
reference in the Prospectus or in any amendments or supplements
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act and the Rules and
Regulations or the Exchange Act and the rules and regulations of the
Commission thereunder, as applicable, and the Rules and Regulations
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall apply only to documents so
filed and incorporated by reference during the period that a
prospectus relating to the Securities is required to be delivered in
connection with sales of such Securities (such period being
hereinafter sometimes referred to as the "prospectus delivery
period");
(d) The nationally recognized firm of independent public
accountants whose report appears in the Company's most recent Annual
Report on Form 10-K, which is incorporated by reference in the
Prospectus, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(e) The consolidated financial statements of the Company
included or incorporated by reference in the Prospectus and the
Registration Statement present fairly on a consolidated basis the
financial position, the results of operations, changes stockholders'
equity and cash flows of the Company and its subsidiaries, as of the
respective dates and for the respective periods indicated, all in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved except as otherwise
stated therein or in the notes thereto.
(f) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any material
loss or interference with its business from fire, explosion, flood or
other calamity,
<PAGE> 4
4
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since such date, there
has not been any material adverse change in the consolidated
stockholders' equity or long-term debt of the Company and its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus.
(g) The Indenture has been duly authorized, and when duly
executed and delivered by the proper officers of the Company (if not
so executed and delivered prior to the date of this Agreement), will
(assuming due execution and delivery by the Trustee) constitute a
valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) or an implied covenant of good faith
and fair dealing; and the Securities have been duly authorized, and,
when duly executed, authenticated, issued and delivered as provided in
the Indenture, will be duly and validly issued and outstanding, and
will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture and enforceable in accordance with
their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) or an implied covenant of good faith and fair dealing; the
Indenture has been duly qualified under the Trust Indenture Act; and
the Indenture conforms, and the Securities, when issued and delivered,
will conform, to the description thereof contained in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or in default under any
agreement, indenture or instrument, the effect of which violation or
default would be material to the Company and its subsidiaries taken as
a whole. The execution, delivery and performance of this Agreement
and the Indenture and the consummation of the transactions
contemplated hereby and thereby will not conflict with, result in the
creation or imposition of any material lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries
pursuant to the terms of, or constitute a default under, any material
agreement,
<PAGE> 5
5
indenture or instrument, or result in a violation of the corporate
charter or by-laws of the Company or any of its subsidiaries or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
respective properties, except for any such conflicts, defaults or
violations of any such liens, charges or encumbrances as would not
individually or in the aggregate have a material adverse effect on the
business, financial condition, results of operations or prospects of
the Company and its subsidiaries taken as a whole. Except as required
by the Securities Act and by applicable state securities laws in
connection with the purchase and distribution of the Securities by the
Underwriters, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for
the execution, delivery and performance of this Agreement or the
Indenture.
(i) The Company and each of its subsidiaries have been
duly organized, are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and in good standing as foreign corporations
in each jurisdiction in which their respective ownership of property
or the conduct of their respective businesses requires such
qualification and in which the failure to qualify would be reasonably
likely, individually or in the aggregate, to have a material adverse
effect on the business, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole. Each
of the Company and its subsidiaries holds all material licenses,
permits, and certificates from governmental authorities necessary for
the conduct of its business as described in the Prospectus.
(j) All of the outstanding shares of capital stock of the
Company are duly authorized, validly issued and outstanding, fully
paid and non-assessable. Except as may be disclosed in the
Registration Statement and the Prospectus, all outstanding shares of
capital stock of the Company's subsidiaries (other than directors'
qualifying shares, if any) are owned by the Company, directly or
indirectly through subsidiaries, free and clear of any lien, pledge
and encumbrance or any claim of any third party and are duly
authorized, validly issued and outstanding, fully paid and
non-assessable (except as provided in 12 U.S.C. Section 55 or any
comparable provision of applicable state law).
(k) Except as described in the Registration Statement and
the Prospectus, there are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries or their respective properties which might
reasonably be expected to have a material adverse effect on the
business, financial condition, results of operations or prospects of
<PAGE> 6
6
the Company and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement and the Prospectus.
(l) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(m) The Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended; the
deposit accounts of each of the Company's domestic bank subsidiaries
are insured by the Federal Deposit Insurance Corporation (the "FDIC")
to the fullest extent permitted by law and the rules and regulations
of the FDIC, and no proceedings for the termination of such insurance
are pending or, to the best of the Company's knowledge, threatened;
and neither the Company nor any of its subsidiaries is party to or
otherwise the subject of any consent decree, memorandum of
understanding, written commitment or other written supervisory
agreement with the Board of Governors of the Federal Reserve System or
any other federal or state authority or agency charged with the
supervision or insurance of depositary institutions or their holding
companies.
2. Sale and Purchase of the Securities. The Company
agrees to sell to each Underwriter, and each Underwriter, on the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein stated, agrees to purchase from the Company, at the
purchase price set forth in Schedule I hereto, the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II
hereto. The obligations of the Underwriters under this Agreement are several
and not joint.
3. Delivery and Payment. Delivery by the Company of the
Securities to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by certified or official
bank check or checks payable in, or by wire transfer of, [New York Clearing
House (next-day funds) [immediately available (federal) funds] to or upon the
order of the Company shall take place at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date").
The Securities will be registered in such names and in such
authorized denominations as the Representatives may request
<PAGE> 7
7
no less than two full business days in advance of the Closing Date. The
Company agrees to have the Securities available for inspection, checking and
packaging by the Representatives at such place as is designated by the
Representatives, not later than 1:00 p.m., New York City time, on the business
day prior to the Closing Date.
4. Offering by Underwriters. Upon authorization by the
Representatives of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set
forth in the Prospectus.
5. Agreements. The Company agrees:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives
and to file such Prospectus with the Commission pursuant to Rule 424
within the time prescribed therein; to advise the Representatives
promptly of any such filing pursuant to Rule 424; after the Closing
Date and during the prospectus delivery period, prior to the filing
with the Commission of any amendment or supplement to the Registration
Statement or Prospectus, to furnish the Representatives and counsel to
the Underwriters with copies thereof and not to file any such document
to which the Representatives shall reasonably object after having been
given reasonable notice of the proposed filing thereof; to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and during the prospectus
delivery period; and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or become effective or any supplement to the Prospectus or any amended
Prospectus has been filed, or mailed for filing, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of such Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) If the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering
<PAGE> 8
8
or sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Securities Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon the request of
the Representatives to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of such Securities at any
time nine months or more after the time of issue of the Prospectus,
upon the request of the Representatives but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies
as the Representatives may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities Act;
(c) The Company will deliver to the Representatives,
without charge, (i) signed copies of the Registration Statement
relating to the Securities and of any amendments thereto (including
all exhibits filed with, or incorporated by reference in, any such
document) and (ii) as many conformed copies of the Registration
Statement and of any amendments thereto which shall become effective
on or before the Closing Date (excluding exhibits) as the
Representatives may reasonably request.
(d) During the prospectus delivery period, the Company
will deliver, without charge to the Representatives and to
Underwriters and dealers, at such office or offices in New York City
as the Representatives may designate, and initially prior to 10:00
a.m. on the business day next succeeding the date of this Agreement,
as many copies of the Prospectus as then amended or supplemented as
the Representatives may reasonably request.
(e) The Company will make generally available to its
security holders and to the Representatives as soon as practicable an
earnings statement (which need not be audited) of the Company and its
subsidiaries, covering a period of at least 12 months beginning after
the Effective Date (or, if later, the date of the Company's most
recent annual report on Form 10-K which is incorporated by
<PAGE> 9
9
reference in the Prospectus), which will satisfy the provisions of
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(f) The Company will furnish such information, execute
such instruments and take such actions as may be required to qualify
the Securities for offering and sale under the laws of such
jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution
of the Securities; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to
general service of process in any jurisdiction where it is not now so
subject.
(g) So long as any Securities are outstanding, the
Company will furnish or cause to be furnished to the Representatives
copies of all annual reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the Commission and such other documents, reports
and information as shall be furnished by the Company to the holders of
the Securities.
(h) For a period beginning at the time of execution of
this Agreement and ending on the later of the Closing Date or the date
on which any price restrictions on the sale of the Securities are
terminated (as advised by the Representatives to the Company), without
the prior consent of the Representatives, the Company will not offer,
sell, contract to sell or otherwise issue any debt securities of the
Company having a maturity of greater than one year.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company contained herein as of the date hereof and the
Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished to
the Representatives or to Simpson Thacher & Bartlett ("Underwriters' Counsel")
pursuant to this Section 6, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the Rules and Regulations and in
accordance with Section 5(a) of this Agreement;
<PAGE> 10
10
(b) No order suspending the effectiveness of the
Registration Statement, as amended from time to time, or suspending
the qualification of the Indenture, shall be in effect and no
proceedings for such purpose shall be pending before or threatened by
the Commission and any requests for additional information on the part
of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall
not have been any change or decrease specified in the letters referred
to in paragraph (g) of this Section 6 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with
the offering and delivery of the Securities as contemplated by the
Registration Statement and the Prospectus.
(d) The Company shall have furnished to the
Representatives the opinion of Miller, Canfield, Paddock and Stone,
P.L.C. and Judith C. Dart, Esq., General Counsel of the Company
dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized and is
validly existing and in good standing under the laws of the
State of Delaware with all requisite corporate power and
authority to own and operate its properties and to conduct its
business as described in the Prospectus.
(ii) The Securities and the Indenture conform in
all material respects to the descriptions thereof contained in
the Prospectus.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and (assuming due execution and
delivery thereof by the Trustee) constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms, subject to the effects of
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance and other laws relating to or affecting creditors'
rights generally and to general principles of equity (whether
considered in a proceeding in equity or at law) and by an
implied covenant of good faith and fair dealing; and the
Securities have been duly authorized, executed, issued and
delivered and (assuming due authentication thereof by the
Trustee) constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture, subject
to the effects of bankruptcy, reorganization,
<PAGE> 11
11
insolvency, moratorium, fraudulent conveyance and other laws
relating to or affecting creditors' rights generally and to
general principles of equity (whether considered in a
proceeding in equity or at law) and by an implied covenant of
good faith.
(iv) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated in this
Agreement and the Indenture, except for such consents,
approvals, authorizations or orders as have been obtained
under the Securities Act and the Trust Indenture Act and such
as may be required under the Exchange Act and the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters.
(v) Such counsel does not know of any contracts
or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which
have not been described in the Prospectus or filed as exhibits
to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and
performance of this Agreement and the Indenture by the Company
will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument known to such
counsel and to which the Company or any of its subsidiaries is
a party or is bound or to which any of their respective
properties are subject, or result in a violation of the
corporate charter or by-laws of the Company or any of its
subsidiaries or any order, rule or regulation known to such
counsel of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or any
of their respective properties, which would have a material
adverse effect on the business, financial condition, results
of operations or prospects of Company and its subsidiaries
taken as a whole.
(vii) The Registration Statement has become effective under
the Securities Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose is pending or
<PAGE> 12
12
threatened by the Commission; the Indenture has been duly
qualified under the Trust Indenture Act.
(viii) The Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (except that
no opinion need be expressed as to the financial statements or
other financial or statistical data or the Form T-1 of the
Trustee under the Trust Indenture Act included or incorporated
by reference therein) comply as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations; the documents incorporated by reference
in the Prospectus (other than the financial statements or
other financial or statistical data included or incorporated
by reference therein, as to which no opinion need be
expressed), when they were filed with the Commission, complied
as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the
Commission thereunder; and the Indenture conforms in all
material respects to the requirements of the Trust Indenture
Act and the applicable rules and regulations of the Commission
thereunder.
(ix) Each of the Company's subsidiaries which is a
"significant subsidiary" as defined in Regulation S-X
promulgated by the Commission (each, a "Significant
Subsidiary") is a duly organized and validly existing
corporation in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to
conduct its business as described in the Prospectus. Each of
the Company and each Significant Subsidiary is duly qualified
to do business as a foreign corporation in each jurisdiction
in which the nature of the business conducted by it or in
which the ownership or holding by lease of the properties
owned or held by it require such qualification and where the
failure to so qualify would, either individually or in the
aggregate, have a material adverse effect on the business,
financial condition, results of operations or prospects of the
Company and its subsidiaries taken as a whole.
(x) All of the outstanding shares of capital stock of each
of the Company's Significant Subsidiaries have been duly and
validly authorized and issued and are fully paid and
non-assessable (except as provided by 12 U.S.C. Section 55 or
any comparable provision of applicable state law) and, except
for directors' qualifying shares, are owned of record and, to
the best knowledge of such counsel, beneficially by the
Company or a subsidiary of the Company free and clear, to the
best
<PAGE> 13
13
of such counsel's knowledge, of any claims, liens,
encumbrances or security interests.
(xi) Such counsel does not know of any legal or
governmental proceeding pending or threatened against the
Company or any of its subsidiaries which would affect the
subject matter of this Agreement or is required to be
disclosed in the Prospectus which is not disclosed and
correctly summarized therein.
(xii) The Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as
amended; and the deposit accounts of each of the Company's
domestic bank subsidiaries which is a Significant Subsidiary
are insured by the FDIC to the fullest extent permitted by law
and the rules and regulations of the FDIC, and no proceedings
for the termination of such insurance are pending or, to the
best of such counsel's knowledge, threatened.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except as to those
matters stated in paragraph (ii) of such opinion), such counsel has no
reason to believe that (i) the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
(ii) the Prospectus contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (except that no opinion need be expressed as
to the financial statements or other financial or statistical data or
the Form T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent such counsel deems proper, upon certificates or
affidavits of officers of the Company, the Trustee and public
officials.
(e) The Representatives shall have received from
Underwriters' Counsel such opinion or opinions, dated the day of the
Closing Date, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
<PAGE> 14
14
(f) The Company shall have furnished to the
Representatives a certificate of its Chief Executive Officer, its
President or any Executive Vice President and its Chief Financial
Officer or its Treasurer, dated as of the Closing Date, to the effect
that:
(i) The representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date.
(ii) To the best of their knowledge after due
inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened.
(iii) In their opinion, (x) the Registration
Statement, as of its effective date, did not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, (y) the Prospectus
does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and (z) since the effective date of the
Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(g) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such
date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representatives, so material
and adverse as to make it
<PAGE> 15
15
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus.
(h) With respect to the letter of Ernst & Young LLP
delivered to the Representatives concurrently with the execution of
this Agreement (the "initial letter"), the Company shall have
furnished to the Representatives a letter (the "bring-down letter") of
such accountants, addressed to the Underwriters and dated the Closing
Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates
as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of
the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(i) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations
and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities.
7. Expenses. (a) Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company will pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including, without limiting the
generality of the foregoing, all costs, taxes and expenses incident to the
issuance, sale and delivery of the Securities to the Underwriters, all fees and
expenses of the Company's counsel and accountants, all costs and expenses
incident to the preparing, printing and filing of the Registration Statement
(including all exhibits thereto), the Prospectus and any amendments thereof or
supplements thereto and the Indenture, and the rating of the Securities by one
or more rating agencies, all costs and expenses (including fees of
Underwriters' counsel and their disbursements) incurred in connection with blue
sky qualifications, the filing requirements, if any, of the National
Association of Securities Dealers, Inc. in connection with its review of
corporate financings, the fee for listing the Securities on any exchange, the
fees and expenses of the Trustee and all costs and expenses
<PAGE> 16
16
of the printing and distribution of all documents in connection with such
offering. Except as provided in this Section 7, the Company will have no
responsibility to the Underwriters for the Underwriters' own costs and
expenses, including the fees of Underwriters' Counsel and any advertising
expenses in connection with any offer the Underwriters may make.
(b) If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Underwriters
set forth in Section 6 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification. (a) The Company shall
indemnify and hold harmless each Underwriter, its officers and employees and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Securities), to which that Underwriter, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
in (A) the Registration Statement, as originally filed or in any amendment
thereof, or in any Preliminary Prospectus, any preliminary prospectus
supplement, the Prospectus or in any amendment thereof or supplement thereto,
or (B) in any blue sky application or other document prepared or executed by
the Company (or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the Securities under
the securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky Application"), or
(ii) the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and each such officer,
employee and controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that (i) the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company
<PAGE> 17
17
through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein and (ii) such indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus at or prior to
the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Securities Act and the untrue statement
or omission of a material fact contained in any Preliminary Prospectus was
corrected in the Prospectus, unless such failure to deliver the Prospectus was
a result of noncompliance by the Company with Section 5(d) hereof. For
purposes of the proviso in the preceding sentence, the term "Prospectus" shall
not be deemed to include the documents incorporated therein by reference, and
no Underwriter shall be obligated to send or give any supplement or amendment
to any document incorporated by reference in any Preliminary Prospectus or
Prospectus to any person other than a person to whom such Underwriter had
delivered such incorporated document or documents in response to a written
request therefor. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of
its directors and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained (A) the Registration
Statement, as originally filed or in any amendment thereof, or in any
Preliminary Prospectus, any preliminary prospectus supplement, the Prospectus
or in any amendment thereof or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have.
<PAGE> 18
18
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in
writing by the Representatives, if the indemnified parties under this Section 8
consist of any Underwriter or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified parties under this
Section consist of the Company or any of the Company's directors, officers,
employees or
<PAGE> 19
19
controlling persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 8(a) and 8(b), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(a) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (b) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with
respect to the Securities purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Securities under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
<PAGE> 20
20
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 8(d) were
to be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 8(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the
statements with respect to the public offering of the Securities set forth on
the cover page of, and under the caption "Underwriting" in the Prospectus are
correct and constitute the only information furnished in writing to the Company
by or on behalf of the Underwriters specifically for inclusion in the
Prospectus.
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for all of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names in Schedule II
hereto bear to the aggregate principal amount of Securities set opposite the
names of the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of
<PAGE> 21
21
the aggregate principal amount of the Securities, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such non-defaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any non-defaulting Underwriters or the Company. In the event the remaining
Underwriters elect to purchase the Securities which the defaulting Underwriter
or Underwriters agreed to purchase as set forth in this Section 9, the Closing
Date may be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing herein contained shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company at or prior to delivery of and payment for all the Securities,
if, prior to such time (i) trading in securities generally on the New York
Stock Exchange or in the over-the-counter market, or trading in any securities
of the Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall have been
an escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or (iii)
there shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such) as to make it, in the
judgment of a majority in interest of the several Underwriters, impracticable
or inadvisable to proceed with the public offering or delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
11. Representations and Indemnities to Survive Delivery.
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) and of the
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Securities.
<PAGE> 22
22
12. Notices. All communications hereunder will be in
writing, and, if sent to the Representatives will be mailed, delivered,
telecopied and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company will be mailed, delivered, telecopied and
confirmed to it at Comerica Tower at One Detroit Center, 500 Woodward Avenue,
Suite 3100, Detroit, Michigan 48226, Attention: [Chief Financial Officer];
Telephone:__________; Telecopy:______________.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their successors and, to the
extent and only to the extent stated in Section 8 hereof, the officers and
directors and controlling persons referred to in Section 8 hereof, and except
as provided in Section 8 hereof, no person other than the parties hereto and
their respective successors will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
COMERICA INCORPORATED
By
------------------------------------
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
By
---------------------------
Title:
<PAGE> 23
23
Acting on behalf of the Representatives named
in Schedule I annexed hereto and the several
Underwriters named in Schedule II annexed hereto.
<PAGE> 24
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No.
Representatives and Address:
Indenture, Title, Purchase Price and Description of Securities:
Indenture: Indenture dated as of ____________, with __________
as trustee
Title:
Principal amount: $
Price to public: ____% plus accrued interest, if any,
from __________
Purchase price: ___% plus accrued interest, if any,
from ________
Interest rate: ___%
Time of payment of interest:
Maturity:
Sinking fund provisions:
Redemption provisions:
Repayment:
Closing Date, Time and Location:
Date:
Time:
Location:
<PAGE> 25
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITERS PURCHASED
------------ -----------
<S> <C>
$
Total . . . . . . . . . . . . . . . . . . . . . . $
</TABLE>
<PAGE> 1
EXHIBIT 4
=================================================================
COMERICA INCORPORATED
TO
THE CHASE MANHATTAN BANK, N.A.
Trustee
---------------
SUBORDINATED DEBT SECURITIES
---------------
INDENTURE
Dated as of , 1995
-------- --
--------------
=================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions and Other Provisions
of General Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.4 Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.6 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.8 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.13 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE II
Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.2 Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.3 Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.4 Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.5 Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE III
The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.3 Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.5 Registration, Registration of
Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.7 Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.9 Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE IV
Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.2 Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest . . . . . . . . . . . . . . . . . 39
Section 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.15 Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VI
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.1 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.4 Not Responsible for Recitals
or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.5 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.9 Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.10 Resignation and Removal;
</TABLE>
- --------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.12 Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.13 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VII
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . 51
Section 7.1 Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.2 Preservation of Information;
Communications to Holders. . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease . . . . . . . . . 52
Section 8.1 Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 8.2 Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE IX
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.1 Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.2 Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.6 Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE X
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.1 Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.3 Money for Securities Payments
to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.4 Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
</TABLE>
- --------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 10.6 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.7 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.8 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XI
Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.3 Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.6 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XII
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 12.2 Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 12.3 Redemption of Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XIII
Subordination of Securities . . . . . . . . . . . . . . . . 65
Section 13.1 Securities Subordinate to
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 13.2 Payment Over of Proceeds Upon
Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 13.3 Prior Payment to Senior Indebtedness
Upon Acceleration of Securities . . . . . . . . . . . . . . . . . . . . . 67
Section 13.4 No Payment When Senior Indebtedness
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 13.5 Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 13.6 Subrogation to Rights of Holders
of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 13.7 Provisions Solely to Define
Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 13.8 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 13.9 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 13.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 13.11 Reliance on Judicial Order or
Certificate of Liquidating Agent . . . . . . . . . . . . . . . . . . . . 71
Section 13.12 Trustee Not Fiduciary for Holders
of Senior Indebtedness or
</TABLE>
- --------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C>
Entitled Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 13.13 Rights of Trustee as Holder of
Senior Indebtedness or Entitled Person; Preservation of Trustee's Rights. 72
Section 13.14 Article Applicable to
Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 13.15 Payment of Proceeds in Certain Cases. . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XIV
Defeasance and Covenant Defeasance . . . . . . . . . . . . . 74
Section 14.1 Applicability of Article;
Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 74
Section 14.2 Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 14.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 14.4 Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 14.5 Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . 78
Section 14.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
-v-
<PAGE> 7
Comerica Incorporated
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
<S> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
6.10
6.13
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
10.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(c)
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
</TABLE>
____________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-1-
<PAGE> 8
INDENTURE, dated as of ______ __, 1995, between COMERICA
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
Comerica Tower at One Detroit Center, Detroit, Michigan 48226 and The Chase
Manhattan Bank, N.A., a national banking association, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such
<PAGE> 9
2
accounting principles as are generally accepted at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Officer" means any officer of the Company
designated by a resolution of the Board of Directors to take certain
actions as specified in this Indenture.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors, or by action of an Authorized
Officer designated as such pursuant to a resolution of the Board of
Directors, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to
close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned
to it
<PAGE> 10
3
under the Trust Indenture Act, then the body performing such duties at
such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President, its Chief
Financial Officer or a Vice President, and by its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office as of the date hereof is
located at [__________________________], Attention [Corporate Trust
Services Division].
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or
more Global Securities, the Person designated as Depositary for such
series by the Company pursuant to Section 3.1, which Person shall be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended.
"Entitled Person" means any person entitled to payment pursuant
to the terms of Other Financial Obligations.
"Event of Default" has the meaning specified in Section 5.1.
"Excess Proceeds" has the meaning specified in Section 13.15.
"Exchange Act" means the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
"Global Security" means a Security bearing the legend
prescribed in Section 2.4 evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary
<PAGE> 11
4
for such series or its nominee, and registered in the name of such
Depositary or nominee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and
any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively. The
term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President,
the Chief Financial Officer or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to
the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 10.4 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of accel- eration of the Maturity
thereof pursuant to Section 5.2.
<PAGE> 12
5
"Other Financial Obligations" means, unless otherwise
determined with respect to any series of Securities pursuant to
Section 3.1, all obligations of the Company to make payment pursuant
to the terms of financial instruments, such as (i) securities
contracts and currency and foreign exchange contracts and (ii)
derivative instruments, such as swap agreements (including interest
rate and currency and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange agreements, options, commodity future
contracts and commodity options contracts, other than (x) obligations
on account of Senior Indebtedness and (y) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate
to the Securities.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities which have been defeased pursuant
to Section 14.2 hereof;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of
the
<PAGE> 13
6
date of such determination upon acceleration of the Maturity thereof
pursuant to Section 5.2, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 3.1 on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (iii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and
any premium and interest on the Securities of that series are payable
as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
<PAGE> 14
7
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board
of directors, the chairman of the trust committee, the president, any
vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any senior trust officer, trust
officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Senior Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.1, the
principal of (and premium, if any) and interest on (a) all
indebtedness of the Company for money borrowed or purchased (including
indebtedness of others for money borrowed or purchased guaranteed by
the Company), whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred other than (i)
the Securities, whether outstanding on the date of this Indenture or
thereafter issued, (ii) the Company's existing subordinated
indebtedness, if any, and (iii) such other indebtedness of the Company
as by its terms is expressly stated to be not superior in right of
payment to the Securities or to rank pari passu in right of payment
with the Securities and (b) amendments, renewals, extensions,
modifications and refundings of any such Senior Indebtedness. For the
purposes of this definition, "indebtedness for money borrowed" when
used with respect to the Company means (i) any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed or
purchased money, whether or not evidenced by bonds, debentures, notes
or other written instruments, and direct
<PAGE> 15
8
credit substitutes (ii) any deferred payment obligation of, or any
such obligation guaranteed by, the Company for the payment of the
purchase price of property or assets evidenced by a note or similar
instrument, and (iii) any obligation of, or any such obligation
guaranteed by, the Company for the payment of rent or other amounts
under a lease of property or assets which obligation is required to be
classified and accounted for as a capitalized lease on the balance
sheet of the Company under generally accepted accounting principles.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the
date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company
and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting
power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of
any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president (but shall not include any assistant
vice president), whether or not designated by a number or a word or
words added before or after the title "vice president".
<PAGE> 16
9
"Wholly-owned Subsidiary" means any Subsidiary all of whose
outstanding voting stock (other than directors' qualifying shares)
shall at the time be owned by the Company or one or more of its
Wholly-owned Subsidiaries.
Section 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion (other than the Officers'
Certificate delivered under Section 10.4 hereof) with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
<PAGE> 17
10
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.1) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument
<PAGE> 18
11
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to
the first solicitation of a Holder of Securities of such series made by any
Person in respect of any such action, or, in the case of any such vote, prior
to such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 7.1) prior to such first solicitation or vote, as
the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
Section 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
<PAGE> 19
12
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company, Attention: Chief Financial Officer.
Section 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
<PAGE> 20
13
Section 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities
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 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than (a) the parties hereto and their
successors hereunder, (b) the holders of Senior Indebtedness (c) the Holders,
and (d) subject to Section 13.15, Entitled Persons in respect of Other
Financial Obligations, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.12 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
<PAGE> 21
14
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2 Form of Face of Security.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY FEDERAL OR OTHER GOVERNMENTAL
AGENCY.
[Insert any legend required by the Internal Revenue Code of
1986, as amended, and the regulations thereunder.]
COMERICA INCORPORATED
.................................................
No........... $ ........
Comerica Incorporated a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
........................................... , or registered
assigns, the principal sum of..................
................... Dollars on .................................
<PAGE> 22
15
[if the Security is to bear interest prior to Maturity, insert --, and to pay
interest thereon from ............. or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
............ and ............ in each year, commencing .........., at the rate
of ....% per annum, until the principal hereof is paid or made available for
payment [if applicable, insert -- , and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of ....% per annum on any
overdue principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the ....... or ....... (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of ....% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any interest on any overdue principal shall bear interest
at the rate of .....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in [the Borough of
Manhattan, the City of New York], in such coin or currency of [the United
States of America] [insert other currency, if applicable] as at the time of
payment
<PAGE> 23
16
is legal tender for payment of public and private debts [if applicable, insert
- -- ; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
COMERICA INCORPORATED
By...................................
Attest:
...........................
Section 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of [__________], 1995 (herein
called the "Indenture"), between the Company and The Chase Manhattan Bank,
N.A., as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness, Entitled Persons and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to $
...........].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by
<PAGE> 24
17
mail, [if applicable, insert -- (1) on ........... in any year commencing with
the year ...... and ending with the year ...... through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after ..........., 19..], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [on or
before ................, ___%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
<TABLE>
<S> <C> <C> <C>
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
</TABLE>
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
............ in any year commencing with the year .... and ending with the year
.... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ............], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
<TABLE>
<S> <C> <C>
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such
<PAGE> 25
18
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
.............., redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than .....% per annum.]
[The sinking fund for this series provides for the redemption
on ........... in each year beginning with the year ....... and ending with the
year ...... of [not less than $.......... ("mandatory sinking fund") and not
more than] $......... aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions
for defeasance at any time of [(a)] [the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.]
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. This Security
is also issued subordinate and subject to the provisions of the Indenture
regarding prior payment in full to Entitled Persons in respect of Other
Financial Obligations. The Indenture also provides that if, upon the
occurrence of certain events of bankruptcy or insolvency relating to the
Company, there remains, after giving effect to such subordination provisions,
any amount of cash, property or securities available for payment or
distribution in respect of Securities of this series (as defined in the
Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person (as
defined in the Indenture) has not received payment in full of all amounts due
or to become due on or in
<PAGE> 26
19
respect of Other Financial Obligations (as defined in the Indenture), 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 Securities of this series. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination and payment of Excess
Proceeds as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.
[If the Security is not an Original Issue Discount Security,
insert -- The principal of this Security may not be declared due and payable
upon the occurrence of an Event of Default, except an Event of Default relating
to certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company shall occur and be continuing, the principal of
the Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- The principal of this Security may not be declared due and payable
upon the occurrence of an Event of Default, except an Event of Default relating
to certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture. Such amount shall be
equal to -- insert formula for determining the amount. Upon payment [if
applicable, insert -- (i)] of the amount of principal so declared due and
payable [if applicable, insert -- and (ii) of interest on any overdue principal
and overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable)], all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of
<PAGE> 27
20
all Securities of such series, to waive certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $....... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
<PAGE> 28
21
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 2.4 Form of Legend for Global Securities.
Any Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name
of, any Person other than the Depositary or a nominee thereof or a
successor of such Depositary or a nominee of such successor and no
such transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in
lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances."
Section 2.5 Form of Trustee's Certificate of
Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, N.A.,
As Trustee
By...........................
Authorized Officer
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
<PAGE> 29
22
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.3, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.4, 3.5,
3,6, 9.6 or 11.7 and except for any Securities which, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(6) the place or places in addition to the Borough of
Manhattan, the City of New York, where the principal of and any
premium and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
<PAGE> 30
23
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency
of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 1.1;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index or formula, the manner in which such amounts
shall be determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2;
(14) the application, if any, of either or both of Section
14.2 and Section 14.3 to the Securities of the series;
(15) whether the Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and,
in such case, the Depositary or Depositaries for such Global Security
or Global Securities and any circumstances other than those set forth
in Section 3.5 in which any such Global Security may be transferred
to, and registered and exchanged for Securities registered in the name
of, a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(16) if other than as specified in Section 5.1, the Events of
Default applicable with respect to the Securities of the series;
(17) the Events of Default set forth in Section 5.1
applicable with respect to the Securities of the series, if
<PAGE> 31
24
fewer than all of the Events of Default set forth in Section 5.1;
(18) if other than as specified in Section 5.2, the Events of
Default the occurrence of which would permit the declaration of the
acceleration of Maturity pursuant to Section 5.2;
(19) the Events of Default the occurrence of which would
permit the declaration of Maturity pursuant to Section 5.2, if fewer
than all of the Events of Default set forth in Section 5.2;
(20) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit
of Securities of such series, or any combination of such covenants,
warranties or provisions;
(21) if other than as specified on Article XIII, the
subordination provisions applicable with respect to the Securities of
the series, including a different definition of the terms "Senior
Indebtedness," "Entitled Persons" or "Other Financial Obligations";
and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
3.3) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the Securities of
any series, at the option of the Company, interest on the Securities of any
series that bears interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
<PAGE> 32
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Section 3.2 Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 3.1. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as permitted
by Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities (or the manner of
determining such terms) have been established by or pursuant to Board
Resolution as permitted by Section 3.1, that such terms (or the manner
of determining such terms) have been established in conformity with
the provisions of this Indenture; and
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(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at
or prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature of an
Authorized Officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by
the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or
<PAGE> 34
27
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
Section 3.5 Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
<PAGE> 35
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.3 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing and except as otherwise
specified or contemplated by Section 3.1, if at any time the Depositary for the
Securities of a series notifies the Company that it is unwilling or unable to
continue as a Depositary for the Securities of such series or if at any time
the Depositary for Securities of a series shall no longer be registered or in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to the Securities of such series. If a successor
Depositary for the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, the Company will execute, and the Trustee, upon Company Request,
will authenticate and deliver Securities of such series in definitive form in
an aggregate principal amount equal to the principal amount of the Global
Security or Global Securities representing Securities of such series in
exchange for such Global Security or Global Securities.
In the event that (i) the Company at any time and in its sole
discretion determines that the Securities of any series issued in the form of
one or more Global Securities shall no longer be represented by such Global
Security or Global
<PAGE> 36
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Securities or (ii) there shall have occurred and be continuing an Event of
Default or an event which, with the giving of notice or lapse of time or both,
would constitute an Event of Default with respect to the Securities of any
series, the Company will execute, and the Trustee, upon Company Request, will
authenticate and deliver Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security
or Global Securities representing such series in exchange for such Global
Security or Global Securities.
Upon the occurrence in respect of any Global Security of any
series of any one or more of the conditions specified in the preceding two
paragraphs or such other conditions as may be specified as contemplated by
Section 3.1 for such series, such Global Security may be exchanged for
Securities registered in the names of, and the transfer of such Global Security
may be registered to, such Persons (including Persons other than the Depositary
with respect to such series and its nominees) as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and
shall bear the legend specified in Section 2.4 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
<PAGE> 37
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Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest
Rights Preserved.
Except as otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such
<PAGE> 38
31
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 3.7) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
<PAGE> 39
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No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this Indenture
with respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of
as directed by a Company Order.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
<PAGE> 40
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(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the 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.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7, the
obligations (if any) of the Trustee to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
<PAGE> 41
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In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of all series as to which it is Trustee and if the other
conditions thereto are met. In the event there are two or more Trustees
hereunder, then the effectiveness of any such instrument shall be conditioned
upon receipt of such instruments from all Trustees hereunder.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee. Money deposited and held in trust pursuant to this Section shall
not be subject to claims of the holders of Senior Indebtedness or of Entitled
Persons under Article XIII.
ARTICLE V
Remedies
Section 5.1 Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default, whether it shall be occasioned by the
provisions of Article XIII and whether it shall be voluntary or involuntary or
be effected by operation of law or 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 Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
<PAGE> 42
35
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court or a governmental authority having
jurisdiction in the premises of (A) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or substantially
all of its assets or ordering the winding up or liquidation of the
affairs of the Company, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or substantially all of its
assets; or
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(7) any other Event of Default provided with respect to
Securities of that series.
Section 5.2 Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default specified in Sections 5.1(5) or 5.1(6)
with respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if any of the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
<PAGE> 44
37
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
pursuant to the terms of any Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by
<PAGE> 45
38
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, the Trustee may vote on behalf of the Holders
for the election of a trustee in bankruptcy or similar official and may be a
member of a creditors' or other similar committee.
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 5.6 Application of Money Collected.
Subject to Article XIII, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
<PAGE> 46
39
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
Section 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal
<PAGE> 47
40
of and any premium and (subject to Section 3.7) any interest on such Security
on the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date), and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
<PAGE> 48
41
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Securities by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted
<PAGE> 49
42
by any Holder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Securities on or after the Stated Maturity
or Maturities expressed in such Securities (or, in the case of redemption, on
or after the Redemption Date).
Section 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 5.1(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
<PAGE> 50
43
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
<PAGE> 51
44
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 6.4 Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 6.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
<PAGE> 52
45
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith;
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder;
(4) to secure the Company's obligations under this
Section, the Trustee shall have a lien prior to the Securities upon
all money or property held or collected by the Trustee in its capacity
as Trustee, except for such money and property which is held in trust
to pay principal (and premium, if any) or interest on particular
Securities; and
(5) when the Trustee incurs any expenses or renders any
services after the occurrence of an Event of Default specified in
Section 5.1(6) or (7), such expenses and the compensation for such
services are intended to constitute expenses of administration under
the United States Bankruptcy Code (Title 11 of the United States Code)
or any similar federal or state law for the relief of debtors.
Section 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 6.9 Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
<PAGE> 53
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Section 6.10 Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or
<PAGE> 54
47
more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
6.11. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any Series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any Series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 1.6. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
<PAGE> 55
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(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees cotrustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
<PAGE> 56
49
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13 Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
(which may be an affiliate of the Company) with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
<PAGE> 57
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shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Unless the Authenticating Agent has been appointed by the
Trustee at the request of the Company, the Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section, and the Trustee shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
N.A.,
As Trustee
By
-------------------------
As Authenticating Agent
By
-------------------------
Authorized Officer
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than June 30 and December 31 in
each year, a list for each series, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Securities of such series as of the preceding June 15 or December 15,
as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 7.2 Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
<PAGE> 59
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(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. To the extent that any such report is required by the Trust
Indenture Act with respect to any 12-month period, such report shall cover the
12-month period ending March 15 and shall be transmitted by the next succeeding
March 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 7.4 Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc.,
Only on Certain Terms.
The Company 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, and the
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Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company 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 Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall be a
corporation, 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 any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of 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) the Company 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
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;
provided, however, the Company may, without the consent of the Holder or
Holders of any series of Securities, convey or transfer its assets
substantially as an entirety to any Person in connection with a transfer that
is assisted or sponsored by a Federal bank regulatory authority, and in such
case the Company's obligations under the Indenture need not be assumed by the
entity acquiring such assets.
Section 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company
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substantially as an entirety in accordance with Section 8.1, the successor
Person formed by such consolidation or into which the Company 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 Company under
this Indenture with the same effect as if such successor Person had been named
as the Company 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 Securities.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (B) modify the
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rights of the Holder of any such Security with respect to such
provision or (ii) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to add to, change or eliminate any of the provisions
of Article XIII in respect of any series of Securities, including
Outstanding Securities, provided that any such action pursuant to this
clause (9) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(10) to provide that Securities of any Series may be
convertible into other securities or other property and to set forth
the terms and conditions of conversion of any such convertible
Securities;
(11) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (11) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
Notwithstanding any provision in this Indenture or otherwise,
the rights of creditors in respect of Other Financial Obligations under this
Indenture and otherwise in respect of the Securities may, at any time and from
time to time, be reduced or eliminated by a supplemental indenture entered into
by the Company and the Trustee, which supplemental indenture will not require
the consent of Holders of Securities or any creditor in respect of Other
Financial Obligations.
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Section 9.2 Supplemental Indentures with
Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or adversely affect any right of repayment at
the option of the Holder of any Security, or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund payment
or analogous obligation, or change the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date) or modify the provisions of this
Indenture with respect to the subordination of the Securities of any
series in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding 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 of certain defaults hereunder and
their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.8, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
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concomitant changes in this Section, or the deletion of this proviso,
in accordance with the requirements of Sections 6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
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shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium
and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of and
any premium and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 10.3 Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or
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before each due date of the principal of or any premium or interest on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any
premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be
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published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate (one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company), stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not and is not reasonably likely to be disadvantageous in any
material respect to the Holders.
Section 10.6 Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
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Section 10.7 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate provision is made.
Section 10.8 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 10.5 to 10.7, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of a majority in principal amount of the Outstanding
Securities of such series shall, by act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to
be redeemed and, if applicable, of
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the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 11.3 Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued
interest, if any,
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(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price and
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) the CUSIP numbers, if any, of the Securities to be
redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
Section 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.3) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
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Record Dates according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2 Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which theretofore have been redeemed or otherwise acquired by the
Company either at the
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election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 12.3 Redemption of Securities for
Sinking Fund.
Not less than 90 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and the basis for such
credit and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE XIII
Subordination of Securities
Section 13.1 Securities Subordinate to
Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security of any series, by his acceptance thereof, likewise covenants and
agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article XIV), the indebtedness
represented by the Securities of such series and the payment of the principal
of (and premium, if any) and interest on each of all of the Securities of such
series are hereby expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness and, as provided in
Section 13.15, of all Other Financial Obligations.
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Section 13.2 Payment Over of Proceeds Upon
Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event the holders of Senior Indebtedness shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Indebtedness, or provision shall be made for such
payment in money or money's worth, before the Holders of the Securities of any
series are entitled to receive any payment on account of principal of (or
premium, if any) or interest on the Securities of such series, and to that end
the holders of Senior Indebtedness shall be entitled to receive, for
application to the payment hereof, any payment or distribution of any kind or
character, whether in cash, property or securities, which may be payable or
deliverable in respect of the Securities of any series in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the holder of any Security of any series shall
have received any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or distribution have been made
known to the Trustee or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. The consolidation
of the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of
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the Company 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 VIII shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in Article VIII.
Section 13.3 Prior Payment to Senior Indebtedness
Upon Acceleration of Securities.
In the event that any Securities of any series are declared
due and payable before their Stated Maturity, then and in such event the
holders of Senior Indebtedness shall be entitled to receive payment in full of
all amounts due or to become due on or in respect of all Senior Indebtedness,
or provision shall be made for such payment in cash, before the Holders of the
Securities of such series are entitled to receive any payment of the principal
of, premium, if any, or interest on the Securities of such series or on account
of the purchase or other acquisition of Securities of such series.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security of any
series prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 13.2 would be applicable.
Section 13.4 No Payment When Senior Indebtedness
Default.
(a) In the event and during the continuation of any default
in the payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial
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proceeding shall be pending with respect to any such default in payment, or
event of default, then no payment shall be made by the Company on account of
principal of (or premium, if any) or interest on the Securities of any series
or on account of the purchase or other acquisition of Securities of any series.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security of any
series prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 13.2 would be applicable.
Section 13.5 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities of any series shall prevent (a) the
Company, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company
referred to in Section 13.2 or under the conditions described in Section 13.3
or 13.4, from making payments at any time of principal of (and premium, if any)
or interest on the Securities of any series, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest on the Securities
of any series or the retention of such payment by the Holder, if, at the time
of such application by the Trustee, it did not have actual knowledge that such
payment would have been prohibited by the provisions of this Article.
Section 13.6 Subrogation to Rights of Holders
of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities of a series shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities of such series shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities of a series or the Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
the
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Securities of a series or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities of such series, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
Section 13.7 Provisions 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 of the Securities of
a series on the one hand and the holders of Senior Indebtedness (and, in the
case of Section 13.15, Entitled Persons in respect of Other Financial
Obligations) on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Securities of any series is intended to or shall
(a) impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities of any series, the obligation of
the Company, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Indebtedness and the rights
under Section 13.15 of Entitled Persons in respect of Other Financial
Obligations, is intended to rank equally with all other obligations of the
Company), to pay to the Holders of the Securities of a series the principal of
(and premium, if any) and interest on the Securities of such series as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
of a series and creditors of the Company other than the holders of Senior
Indebtedness or Entitled Persons in respect of Other Financial Obligations; or
(c) prevent the Trustee or the Holder of any Security of any series 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 Senior Indebtedness, and under Section 13.15 of Entitled Persons in
respect of Other Financial Obligations, to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 13.8 Trustee to Effectuate Subordination.
Each holder of a Security of any series by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 13.9 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness or an Entitled Person in respect of Other Financial Obligations to
enforce subordination as herein provided shall at
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any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness or an Entitled Person in respect
of Other Financial Obligations may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities of any
series, without incurring responsibility to the Holders of the Securities of
any series and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities to
the holders of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or Other Financial Obligations, or otherwise amend
or supplement in any manner Senior Indebtedness or Other Financial Obligations
or any instrument evidencing the same or any agreement under which Senior
Indebtedness or Other Financial Obligations is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness or Other Financial Obligations; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness or Other Financial Obligations; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 13.10 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities of any series. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities of a series, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee therefor or from any Entitled Persons in respect of Other
Financial Obligations; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 6.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal (and premium, if any) or interest on any Security),
then, anything herein
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contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purpose for
which such money was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) or an Entitled Person in respect of Other Financial Obligations to
establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee therefor) or an Entitled Person in respect of Other Financial
Obligations. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
or Other Financial Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 13.11 Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities of any series shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities of such series, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company and the Entitled Persons in
respect of Other Financial Obligations, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
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Section 13.12 Trustee Not Fiduciary for Holders
of Senior Indebtedness or
Entitled Persons.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness or Entitled Persons with respect to Other
Financial Obligations and shall not be liable to any such holders or creditors
if it shall in good faith mistakenly pay over or distribute to Holders of
Securities of any series or to the Company or to any other Person cash,
property or securities to which any holders of Senior Indebtedness or Entitled
Persons with respect to Other Financial Obligations shall be entitled by virtue
of this Article or otherwise.
Section 13.13 Rights of Trustee as Holder of
Senior Indebtedness or Entitled Person;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it and with respect to any Other
Financial Obligations owed to the Trustee as the Entitled Person, to the same
extent as any other holder of Senior Indebtedness or Entitled Person in respect
of Other Financial Obligations, as the case may be, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder or
Entitled Person.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
Section 13.14 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
otherwise requires) 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 Section 13.13 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 13.15 Payment of Proceeds in Certain Cases.
(a) Upon the occurrence of any of the events specified in
clauses (a), (b) and (c) of the first paragraph of Section 13.2, the provisions
of that Section shall be given effect to determine the amount of cash, property
or securities which may be payable or deliverable as between the holders of
Senior Indebtedness, on the one hand, and the Holders of Securities, on the
other hand.
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(b) If, after giving effect to the provisions of Section 13.2
and Section 13.6, any amount of cash, property or securities shall be available
for payment or distribution in respect of the Securities ("Excess Proceeds"),
and any Entitled Persons in respect of Other Financial Obligations shall not
have received payment in full of all amounts due or to become due on or in
respect of such Other Financial Obligations (and provision shall not have been
made for such payment in money or money's worth), then such Excess Proceeds
shall first be applied (ratably with any amount of cash, property or securities
available for payment or distribution in respect of any other indebtedness of
the Company that by its express terms provides for the payment over of amounts
corresponding to Excess Proceeds to Entitled Persons in respect of Other
Financial Obligations) to pay or provide for the payment of the Other Financial
Obligations remaining unpaid, to the extent necessary to pay all Other
Financial Obligations in full, after giving effect to any concurrent payment or
distribution to or for Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the payment (or provisions
for payment) in full of all Other Financial Obligations shall be available for
payment or distribution in respect of the Securities.
(c) In the event that, notwithstanding the foregoing
provisions of subsection (b) of this Section, the Trustee or Holder of any
Security shall have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
before all Other Financial Obligations are paid in full or payment thereof duly
provided for, and if such fact shall, at or prior to the time of such payment
or distribution have been made known to the Trustee or, as the case may be,
such Holder, then and in such event, subject to any obligation that the Trustee
or such Holder may have pursuant to Section 13.2, such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for payment in
accordance with subsection (b).
(d) Subject to the payment in full of all Other Financial
Obligations, the Holders of the Securities shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company that by its express
terms provides for the payment over of amounts corresponding to Excess Proceeds
to Entitled Persons in respect of Other Financial Obligations and is entitled
to like rights of subrogation) to the rights of the Entitled Persons in respect
of Other Financial Obligations to receive payments and distributions of cash,
property and securities applicable to the Other Financial Obligations until the
principal of and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to Entitled Persons
in respect of Other Financial Obligations of any cash, property or securities
to which Holders of the Securities or the Trustee would be entitled except for
the
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provisions of this Section, and no payments over pursuant to the provisions of
this Section to Entitled Persons in respect of Other Financial Obligations by
Holders of Securities or the Trustee, shall, as among the Company, its
creditors other than Entitled Persons in respect of Other Financial Obligations
and the Holders of Securities, be deemed to be a payment or distribution by the
Company to or on account of the Other Financial Obligations.
(e) The provisions of subsections (b), (c) and (d) of this
Section are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the Entitled
Persons in respect of Other Financial Obligations, on the other hand, after
giving effect to the rights of the holders of Senior Indebtedness, as provided
in this Article. Nothing contained in subsections (b), (c) and (d) of this
Section is intended to or shall affect the relative rights against the Company
of the Holders of the Securities and (1) the holders of Senior Indebtedness or
(2) other creditors of the Company other than Entitled Persons in respect of
Other Financial Obligations.
ARTICLE XIV
Defeasance and Covenant Defeasance
Section 14.1 Applicability of Article;
Company's Option to Effect
Defeasance or Covenant Defeasance.
If pursuant to Section 3.1 provision is made for either or
both of (a) defeasance of the Securities of a series under Section 14.2 or (b)
covenant defeasance of the Securities of a series under Section 14.3, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article XIV, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any
time, with respect to the Securities of such series, elect to have either
Section 14.2 (if applicable) or Section 14.3 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article XIV.
Section 14.2 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to
this Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such
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series and to have satisfied all its other obligations under such Securities
and this Indenture, including the provisions of Article XIII hereof, insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Securities of such series
to receive, solely from the trust fund described in Section 14.4 as more fully
set forth in such Section, payments of the principal of (and premium, if any)
and interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2
and 10.3 and such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in respect of the
Trustee hereunder and (D) this Article XIV. Subject to compliance with this
Article XIV, the Company may exercise its option under this Section 14.2
notwithstanding the prior exercise of its option under Section 14.3 with
respect to the Securities of such series. Following a defeasance, payment of
the Securities of such series may not be accelerated because of an Event of
Default.
Section 14.3 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to
this Section and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), the Company shall be released from its
obligations under any covenant applicable to such Securities that is determined
pursuant to Section 3.1 to be subject to this provision, and the occurrence of
an event specified in Section 5.1(4) (with respect to any Section applicable to
such Securities that are determined pursuant to Section 3.1 to be subject to
this provision) shall not be deemed to be an Event of Default with respect to
the outstanding Securities of such series. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 14.4 Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions precedent to application
of either Section 14.2 or Section 14.3 to the Outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee as trust
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funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest 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 thereof, sufficient,
without reinvestment, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, the principal of
(and premium, if any) and interest on the Outstanding Securities of
such series on the Maturity of such principal, premium, if any, or
interest and any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the due
dates thereof. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article XI,
which shall be given effect in applying the foregoing. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment
of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such
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 principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the
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date of such deposit or (B) insofar as subsections 5.1(6) and (7) are
concerned, at any time during the period ending on the 123rd day after
the date of such deposit or, if longer, ending on the day following
the expiration of the longest preference period applicable to the
Company in respect of such deposit (it being understood that the
condition in this Clause (B) shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 6.8 or for purposes of the
Trust Indenture Act with respect to any securities of the Company or
(B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(6) In the case of an election under Section 14.2, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred.
(7) In the case of an election under Section 14.3, the
Company shall have delivered to the Trustee an opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and
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will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(8) At the time of such deposit; (A) no default in the
payment of all or a portion of principal of (or premium, if any) or
interest on any Senior Indebtedness shall have occurred and be
continuing, and no event of default with respect to any Senior
Indebtedness shall have occurred and be continuing and shall have
resulted in such Senior Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable and (B) no other event of default with respect to any
Senior Indebtedness shall have occurred and be continuing permitting
(after notice or the lapse of time, or both) the holders of such
Senior Indebtedness (or a trustee on behalf of the holders thereof) to
declare such Senior Indebtedness due and payable prior to the date on
which it would otherwise have become due and payable, or, in the case
of either Clause (A) or Clause (B) above, each such default or event
of default shall have been cured or waived or shall have ceased to
exist.
(9) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 3.1.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 14.2 or the covenant defeasance under Section 14.3 (as
the case may be) have been complied with.
Section 14.5 Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.3, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 14.4 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent
<PAGE> 86
79
required by law. Money so held in trust shall not be subject to the provisions
of Article XIII.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 14.4 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 14.4
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
Section 14.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 14.5 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XIV until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 14.5; provided,
however, that if the Company makes any payment of principal of (and premium, if
any) or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE> 87
80
IN WITNESS WHEREOF, the parties hereto have caused this
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.
<TABLE>
<S> <C>
COMERICA INCORPORATED
By
--------------------------------
Title:
Attest:
By
-----------------------
Title:
THE CHASE MANHATTAN BANK, N.A.,
As Trustee
By
-------------------------------
Attest: Title:
By
---------------------------
Title:
</TABLE>
<PAGE> 88
81
STATE OF )
------------
) ss.:
CITY AND COUNTY OF )
--------
On the __ day of _______________ before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say
that he is ____________________ of Comerica Incorporated, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
------------------------------
<PAGE> 89
82
STATE OF )
--------
) ss.:
COUNTY OF )
--------
On the _____ day of _________________, before me personally
came _______________________, to me known, who, being by me duly sworn, did
depose and say that he is __________________ of The Chase Manhattan Bank, N.A.
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
--------------------------------
<PAGE> 1
Exhibit (5)
<TABLE>
<S> <C> <C>
SIDNEY T. MILLER (1864-1940) LAW OFFICES OF ANN ARBOR, MICHIGAN
GEORGE L. CANFIELD (1866-1928) MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. BLOOMFIELD HILLS, MICHIGAN
LEWIS H. PADDOCK (1866-1935) A PROFESSIONAL LIMITED LIABILITY COMPANY DETROIT, MICHIGAN
FERRIS D. STONE (1882-1945) 150 WEST JEFFERSON, SUITE 2500 GRAND RAPIDS, MICHIGAN
DETROIT, MICHIGAN 48226 KALAMAZOO, MICHIGAN
____________________ LANSING, MICHIGAN
MONROE, MICHIGAN
TELEPHONE (313) 963-6420 WASHINGTON, D.C.
TWX 810-221-5007 MILLCNFLD DET
FAX (313) 496-7500
AFFILIATED OFFICES:
PENSACOLA, FLORIDA
ST. PETERSBURG, FLORIDA
GDANSK, POLAND
WARSAW, POLAND
</TABLE>
July 14, 1995
Comerica Incorporated
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Gentlemen:
This opinion relates to the registration statement on Form S-3 (the
"Registration Statement") filed by Comerica Incorporated, a Delaware
corporation ("Comerica"), with the Securities and Exchange Commission for the
purpose of registering under the Securities Act of 1933, as amended (the
"Act"), $200,000,000 of Unsecured Subordinated Debt Securities (the "Notes").
The Notes are to be offered from time to time in one or more series and will be
issued under an indenture (the "Indenture") to be entered into between Comerica
and The Chase Manhattan Bank, N.A., as Trustee. As your counsel, we have
examined such certificates, instruments, and documents and reviewed such
questions of law as we have considered necessary or appropriate for purposes of
this opinion, and, on the basis of such examination and review, we advise you
that, in our opinion:
1. The Notes have been validly authorized.
2. When the Registration Statement has become effective and the
Notes have been executed, authenticated, issued and delivered pursuant to the
Indenture, the Notes will constitute legal, valid and binding obligations of
Comerica entitled to the benefits of the Indenture subject to (i) the effects
of bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance
and other laws relating to or affecting creditors' rights generally; (ii)
general principles of equity (whether considered in a proceeding in equity or
at law); and (iii) an implied covenant of good faith and fair dealing.
<PAGE> 2
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
Comerica Incorporated -2- July 14, 1995
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Opinions" in the Prospectus forming a part of the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission.
Very truly yours,
Miller, Canfield, Paddock and Stone, P.L.C.
<PAGE> 1
Exhibit 12 Statement re computation of ratios
Comerica Incorporated and Subsidiaries
<TABLE>
<CAPTION>
Three Months Year ended
Ended March 31, December 31,
--------------- ------------
(dollars in thousands) 1995 1994 1994 1993
---- ---- ---- ----
<S> <C> <C> <C> <C>
Interest expense $307,342 $179,590 $890,605 $681,554
Portion of net rental expense estimated to be
representative of the interest factor 3,671 3,428 14,638 14,098
---------- ---------- ------------ ------------
Fixed charges 311,013 183,018 905,243 695,652
Income before income taxes 151,609 135,530 582,095 488,575
---------- ---------- ------------ ------------
Income before income taxes and fixed charges $462,622 $318,548 $1,487,338 $1,184,227
Consolidated ratio of earnings to fixed charges
(including interest on deposits) 1.49 x 1.74 x 1.64 x 1.70 x
========== ========== ============ ============
Interest expense $307,342 $179,590 $890,605 $681,554
Less: Interest on deposits (171,825) (118,699) (542,727) (529,802)
Portion of net rental expense estimated to be
representative of the interest factor 3,671 3,428 14,638 14,098
---------- ---------- ------------ ------------
Fixed charges excluding interest on deposits 139,188 64,319 362,516 165,850
Income before income taxes 151,609 135,530 582,095 488,575
---------- ---------- ------------ ------------
Income before income taxes and fixed charges $290,797 $199,849 $944,611 $654,425
Consolidated ratio of earnings to fixed charges
(excluding interest on deposits) 2.09 x 3.11 x 2.61 x 3.95 x
========== ========== ============ ============
</TABLE>
<TABLE>
<CAPTION>
Year ended December 31,
------------------------
(dollars in thousands) 1992 1991 1990
---- ---- ----
<S> <C> <C> <C>
Interest expense $836,035 $1,233,258 $1,358,922
Portion of net rental expense estimated to be
representative of the interest factor 13,530 12,389 11,643
---------- ---------- ------------
Fixed charges 849,565 1,245,647 1,370,565
Income before income taxes 329,035 385,035 327,056
---------- ---------- ------------
Income before income taxes and fixed charges $1,178,600 $1,630,682 $1,697,621
Consolidated ratio of earnings to fixed charges 1.39 x 1.31 x 1.24 x
(including interest on deposits) ========== ========== ============
Interest expense $836,035 $1,233,258 $1,358,922
Less: Interest on deposits (706,873) (1,033,145) (1,119,150)
Portion of net rental expense estimated to be
representative of the interest factor 13,530 12,389 11,643
---------- ---------- ------------
Fixed charges excluding interest on deposits 142,692 212,502 251,415
Income before income taxes 329,035 385,035 327,056
---------- ---------- ------------
Income before income taxes and fixed charges $471,727 $597,537 $578,471
Consolidated ratio of earnings to fixed charges
(excluding interest on deposits) 3.31 x 2.81 x 2.30 x
========== ========== ============
</TABLE>
<PAGE> 1
[ERNST & YOUNG LLP LETTERHEAD]
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement on Form S-3 and related prospectus of Comerica
Incorporated for the registration of $200,000,000 of subordinated debt
securities and the incorporation by reference therein of our report dated
January 17, 1995 with respect to the consolidated financial statements of
Comerica Incorporated included in the Company's Annual Report on Form 10-K,
for the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
July 13, 1995
<PAGE> 1
EXHIBIT 24
COMERICA INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN by these presents that the undersigned hereby makes, constitutes
and appoints Eugene A. Miller, Arthur W. Hermann, Judith C. Dart and Robert C.
Shrosbree, and each of them, the true and lawful attorney(s)-in-fact of the
undersigned, with full power of substitution and revocation, for and in the
name, place and stead of the undersigned, to execute and deliver the
Registration Statement on Form S-3, to be filed with the Securities and
Exchange Commission in connection with the issuance of up to $200 million in
Subordinated Notes on behalf of Comerica Incorporated, and any and all
amendments thereto, including, without limitation, pre-effective and
post-effective terms and provisions as said attorney(s) or substitute(s) shall
deem necessary or desirable; giving and granting unto said attorney(s), or to
such person(s) as in any case may be appointed pursuant to the power of
substitution herein given, full power and authority to do and perform any and
every act and thing whatsoever requisite, necessary or, in the opinion of said
attorney(s) or substitute(s), able to be done in as the undersigned might or
could do if personally present, the undersigned hereby ratifying and confirming
all that said attorney(s) or such substitute(s) shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have duly executed this Power of
Attorney.
/s/ E. Paul Casey
- ------------------
E. Paul Casey
/s/ James F. Cordes
- -------------------
James F. Cordes
/s/ J. Phillip DiNapoli
- -----------------------
J. Philip DiNapoli
/s/ Max M. Fisher
- -----------------
Max M. Fisher
/s/ John D. Lewis
- -----------------
John D. Lewis
/s/ Patricia Shontz Longe, Ph.D.
- --------------------------------
Patricia Shontz Longe, Ph.D.
/s/ Wayne B. Lyon
- -----------------
Wayne B. Lyon
/s/ Gerald V. MacDonald
- -----------------------
Gerald V. MacDonald
/s/ Eugene A. Miller
- --------------------
Eugene A. Miller
/s/ Michael T. Monahan
- ----------------------
Michael T. Monahan
/s/ Alfred A. Piergallini
- -------------------------
Alfred A. Piergallini
/s/ Alan E. Schwartz
- --------------------
Alan E. Schwartz
<PAGE> 1
EXHIBIT 25
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
COMERICA INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
38-1998421
(I.R.S. Employer Identification No.)
500 WOODWARD AVENUE, 33RD FLOOR
DETROIT, MICHIGAN
(Address of principal executive offices)
48226
(Zip Code)
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect. (See Exhibit T-1 (Item 12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan Bank
(National Association) and The Chase Bank of New York (National
Association) to commence business and a copy of approval of merger
of said corporations, all of which documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-60809.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is in
default. (Not applicable).
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
*The Exhibits thus designated are incorporated herein by reference. Following
the description of such Exhibits is a reference to the copy of the Exhibit
heretofore filed with the Securities and Exchange Commission, to which there
have been no amendments or changes.
1.
<PAGE> 3
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 13th day of July, 1995.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: /s/ LUCY A. SOLTIS
----------------------
Lucy A. Soltis
Second Vice President
2
<PAGE> 4
EXHIBIT 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of business on March 31,
1995, published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
CHARTER NUMBER 2370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................................ $ 4,264,000
Interest-bearing balances ......................................................... 6,755,000
Held to maturity securities .......................................................... 1,571,000
Available-for-sale securities ........................................................ 4,687,000
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold ................................................................ 2,502,000
Securities purchased under agreements to resell ................................... 35,000
Loans and lease financing receivable:
Loans and leases, net of unearned income ........................ $ 52,831,000
LESS: Allowance for loan and lease losses ...................... 1,078,000
LESS: Allocated transfer risk reserve .......................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve .................. 51,753,000
Assets held in trading accounts ...................................................... 17,278,000
Premises and fixed assets (including capitalized leases) ............................. 1,785,000
Other real estate owned .............................................................. 441,000
Investments in unconsolidated subsidiaries and associated companies .................. 46,000
Customers' liability to this bank on acceptances outstanding ......................... 1,077,000
Intangible assets .................................................................... 809,000
Other assets ......................................................................... 6,346,000
------------
TOTAL ASSETS ......................................................................... $ 99,349,000
============
LIABILITIES
Deposits:
In domestic offices ............................................................... $ 28,080,000
Noninterest-bearing ........................................... $ 10,224,000
Interest-bearing .............................................. 17,856,000
------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs ..................... 35,906,000
Noninterest-bearing ........................................... $ 2,695,000
Interest-bearing .............................................. 33,211,000
------------
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in
IBFs:
Federal funds purchased ........................................................... 2,086,000
Securities sold under agreements to repurchase .................................... 158,000
Demand notes issued to the U.S. Treasury ............................................. 194,000
Trading liabilities .................................................................. 13,545,000
Other borrowed money:
With original maturity of one year or less ........................................ 2,122,000
With original maturity of more than one year ...................................... 429,000
Mortgage indebtedness and obligations under capitalized leases ....................... 40,000
Bank's liability on acceptances executed and outstanding ............................. 1,081,000
Subordinated notes and debentures .................................................... 2,360,000
Other liabilities .................................................................... 6,300,000
------------
TOTAL LIABILITIES .................................................................... 92,301,000
------------
Limited-life preferred stock and related surplus ..................................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ........................................ 0
Common stock ......................................................................... 917,000
Surplus .............................................................................. 4,666,000
Undivided profits and capital reserves ............................................... 1,552,000
Net unrealized holding gains (losses) on available-for-sale securities ............... (98,000)
Cumulative foreign currency translation adjustments .................................. 11,000
------------
TOTAL EQUITY CAPITAL ................................................................. 7,048,000
------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL .............................................................. $ 99,349,000
============
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
