<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY , 1997
REGISTRATION NOS. 333- AND 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
<TABLE>
<S> <C>
NATIONAL CITY CORPORATION NATIONAL CITY CAPITAL TRUST I
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation or organization)
6712 6719
(Primary Standard Industrial Classification Code Number) (Primary Standard Industrial Classification Code Number)
34-1111088 31-1547502
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1900 E. Ninth Street 1900 E. Ninth Street
Cleveland, Ohio 44114-3484 Cleveland, Ohio 44114-3484
(216) 575-2000 (216) 575-2000
(Address, including zip code, and (Address, including zip code, and
telephone number, including area code, of telephone number, including area code, of
Registrant's principal executive offices) Registrant's principal executive offices)
</TABLE>
DAVID L. ZOELLER, ESQ.
National City Corporation
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
(216) 575-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies To:
DENNIS W. LABARRE, ESQ.
CHRISTOPHER M. KELLY, ESQ.
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PRICE PER UNIT OFFERING PRICE FEE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Junior Subordinated Debt Securities of National City
Corporation (1)(2)................................ $500,000,000 100% $500,000,000 N/A
Reset Asset Capital Securities of National City
Capital Trust I (2)............................... 500,000 $1,000.00 $500,000,000 $151,516
Guarantee of National City Corporation with respect
to Reset Asset Capital Securities (2)(3).......... N/A N/A N/A N/A
Total........................................... $500,000,000(4) 100% $500,000,000(4) $151,516
</TABLE>
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(1) Junior Subordinated Debt Securities were purchased by National City Capital
Trust I with the proceeds of the sale of the Reset Asset Capital Securities.
No separate consideration will be received from purchasers of Reset Asset
Capital Securities for the Junior Subordinated Debt Securities.
(2) This Registration Statement is deemed to cover $500,000,000 aggregate
principal amount of the Junior Subordinated Debt Securities of National City
Corporation, the rights of holders of such Junior Subordinated Debt
Securities under the related Indenture, the rights of holders of Reset Asset
Capital Securities of National City Capital Trust I under the Amended and
Restated Declaration of Trust of National City Capital Trust I and the
rights of holders of the Reset Asset Capital Securities under the Guarantee
of National City Corporation, which taken together fully and unconditionally
guarantee, to the extent described herein, the obligations of National City
Capital Trust I under the Reset Asset Capital Securities.
(3) No separate consideration will be received for the National City Corporation
Guarantee.
(4) Such amounts represent the aggregate Liquidation Amount of Reset Asset
Capital Securities to be issued and exchanged hereunder and $500,000,000
aggregate principal amount of Junior Subordinated Debt Securities to be
issued and exchanged hereunder.
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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 this 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.
PROSPECTUS
Subject to Completion, dated July , 1997
$500,000,000
NATIONAL CITY CAPITAL TRUST I
OFFER TO EXCHANGE ITS RESET ASSET CAPITAL SECURITIES (RACS), WHICH HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL OF THE OUTSTANDING
RESET ASSET
CAPITAL SECURITIES OF NATIONAL CITY CAPITAL TRUST I
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT DESCRIBED HEREIN, BY
NATIONAL CITY CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997, UNLESS EXTENDED.
National City Capital Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), and National City Corporation, a
Delaware corporation, as Depositor ("National City" or the "Corporation"),
hereby offer, upon the terms and subject to the conditions set forth in this
Prospectus (as the same may be amended or supplemented from time to time, the
"Prospectus") and in the accompanying Letter of Transmittal (which together
constitute the "Exchange Offer"), to exchange up to $500,000,000 aggregate
Liquidation Amount (as defined herein) of the Reset Asset Capital Securities
(Liquidation Amount $1,000 per Reset Asset Capital Security) (the "Exchange
Capital Securities") of the Trust, which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement (as defined herein) of which this Prospectus constitutes
a part, for a like Liquidation Amount of its outstanding Reset Asset Capital
Securities (Liquidation Amount $1,000 per outstanding Reset Asset Capital
Security) (the "Old Capital Securities"), of the Trust, of which $500,000,000
aggregate Liquidation Amount is outstanding. The Exchange Capital Securities
will have the benefit of the Exchange Guarantee (as defined herein) of the
Corporation, which will be identical in all material respects (except as
described herein) to the Old Guarantee (as defined herein) relating to the Old
Capital Securities. The Trust will hold Junior Subordinated Debt Securities of
the Corporation (the "Exchange Junior Subordinated Debt Securities") in an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Exchange Capital Securities issued pursuant to the Exchange Offer and the Common
Securities (as defined herein) currently outstanding, which will have terms
identical in all material respects (except as described herein) to the
Corporation's outstanding Junior Subordinated Debt Securities (the "Old Junior
Subordinated Debt Securities"), of which $515,464,000 aggregate principal amount
is outstanding. The Exchange Guarantee relating to the Exchange Capital
Securities and $500,000,000 aggregate principal amount of the Exchange Junior
Subordinated Debt Securities also have been registered under the Securities Act.
The Old Capital Securities, the Old Guarantee and the Old Junior Subordinated
Debt Securities are collectively referred to herein as the "Old Securities," and
the Exchange Capital Securities, the Exchange Guarantee and the Exchange Junior
Subordinated Debt Securities are collectively referred to herein as the
"Exchange Securities." (continued on next page)
SEE "RISK FACTORS" BEGINNING ON PAGE 13 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE EXCHANGE CAPITAL SECURITIES.
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
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.
The date of this Prospectus is , 1997.
<PAGE> 3
(cover page continued)
Each Participating Broker-Dealer (as defined herein) that receives Exchange
Capital Securities for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Capital Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a Participating Broker-Dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a Participating Broker-Dealer during the period
referenced herein in connection with resales of Exchange Capital Securities
received in exchange for Old Capital Securities acquired by such Participating
Broker-Dealer as a result of market-making activities or other trading
activities. Subject to certain provisions set forth in the Registration
Agreement (as defined herein), the Corporation and the Trust have agreed that,
starting on the Expiration Date (as defined herein) and ending on the close of
business on the first anniversary following the Expiration Date, or, if earlier,
when all such Exchange Capital Securities have been disposed of by such
Participating Broker-Dealer, this Prospectus may be used by a Participating
Broker-Dealer in connection with resales of such Exchange Capital Securities.
See "Plan of Distribution."
The terms of the Exchange Securities are identical in all material respects
to the respective terms of the Old Securities, except that (i) the Exchange
Securities have been registered under the Securities Act and therefore will not
be subject to certain of the restrictions on transfer applicable to the Old
Securities, (ii) other than any possible increase in the Applicable Rate (as
defined herein) pursuant to the Rate Reset Auction (as defined herein), the
Exchange Capital Securities will not provide for any increase in the rate at
which Distributions (as defined herein) accumulate thereon and (iii) other than
any possible increase in the Applicable Rate pursuant to the Rate Reset Auction,
the Exchange Junior Subordinated Debt Securities will not provide for any
increase in the interest rate thereon. See "Description of Exchange Capital
Securities," "Description of Exchange Junior Subordinated Debt Securities,"
"Description of Exchange Guarantee," "Description of Old Securities" and "Rate
Reset Auction." The Exchange Capital Securities are being offered for exchange
in order to satisfy certain obligations of the Corporation and the Trust under
the Registration Agreement, dated as of June 6, 1997 (the "Registration
Agreement"), by and among the Corporation, the Trust and UBS Securities LLC (the
"Initial Purchaser").
The Exchange Capital Securities offered hereby and the Old Capital
Securities (together, the "Capital Securities") represent beneficial ownership
interests in the Trust. The Corporation is the direct owner of all of the
beneficial ownership interests represented by common securities of the Trust
(the "Common Securities" and, collectively with the Capital Securities, the
"Trust Securities"). The Bank of New York is the property trustee of the Trust.
The Trust exists for the exclusive purposes of issuing the Trust Securities,
investing the proceeds of the Old Capital Securities and the Common Securities
in the Old Junior Subordinated Debt Securities, exchanging the Exchange Capital
Securities for the Old Capital Securities, exchanging the Exchange Junior
Subordinated Debt Securities for the Old Junior Subordinated Debt Securities,
making Distributions and certain other limited activities described herein. The
Trust has heretofore issued the Old Capital Securities and the Common
Securities, and has invested the respective proceeds of the Old Capital
Securities and the Common Securities in the Old Junior Subordinated Debt
Securities. The Junior Subordinated Debt Securities (as defined herein) will
mature on June 1, 2029 (the "Stated Maturity"). The Capital Securities have a
preference under certain circumstances over the Common Securities with respect
to cash distributions and amounts payable on liquidation, redemption or
otherwise. See "Description of Exchange Capital Securities -- Subordination of
Common Securities."
As used herein, (i) the "Indenture" means the Junior Subordinated
Indenture, dated as of June 6, 1997, as amended and supplemented from time to
time, between the Corporation and The Bank of New York, as trustee (the
"Debenture Trustee"), (ii) the "Declaration" means the Amended and Restated
Declaration of Trust, dated as of June 6, 1997, among the Corporation, as
Depositor (the "Depositor"), The Bank of New York, as Property Trustee (the
"Property Trustee"), The Bank of New York (Delaware), as Delaware Trustee (the
"Delaware Trustee"), and the individuals named as Administrative Trustees
therein (the "Administrative Trustees," and together with the Property Trustee
and the Delaware Trustee, the "Issuer Trustees"), (iii) the "Old Guarantee"
means the Guarantee Agreement, dated as of June 6, 1997, between
ii
<PAGE> 4
the Corporation and The Bank of New York, as Trustee (the "Guarantee Trustee"),
providing a guarantee, on the terms and conditions described herein, for the
benefit of holders of Old Capital Securities and the Common Securities and (iv)
the "Exchange Guarantee" means the Exchange Guarantee Agreement between the
Corporation and the Guarantee Trustee, providing a guarantee, on the terms and
conditions described herein, for the benefit of holders of the Capital
Securities and the Common Securities. In addition, as the context may require,
(i) "Junior Subordinated Debt Securities" includes the Old Junior Subordinated
Debt Securities and the Exchange Junior Subordinated Debt Securities and (ii)
"Guarantee" includes the Old Guarantee and the Exchange Guarantee.
Holders of Capital Securities are entitled to receive cumulative cash
distributions, in each case arising from the payment of interest on the Junior
Subordinated Debt Securities accruing from the date of original issuance of the
Trust Securities and payable semi-annually in arrears on the 1st day of June and
December of each year, commencing December 1, 1997, at the Applicable Rate
applied to the Liquidation Amount of $1,000 per Capital Security
("Distributions"). See "Description of Exchange Capital
Securities -- Distributions." Prior to the Rate Reset Date (as defined herein),
the Applicable Rate on the Junior Subordinated Debt Securities will be 6.75% per
annum. On and after the Rate Reset Date, the Applicable Rate on the Junior
Subordinated Debt Securities will be a rate per annum determined on the basis of
Orders (as defined herein) placed prior to the Submission Deadline (as defined
herein) in a Rate Reset Auction to be held on the Business Day (as defined
herein) three Business Days prior to the Rate Reset Date (the "Rate Reset
Pricing Date"). Pursuant to the Auction Procedures (as defined herein), each
Existing Holder (as defined herein) will indicate its desire to (i) continue to
hold Capital Securities without regard to the Applicable Rate that results from
the Rate Reset Auction, (ii) continue to hold Capital Securities if the
Applicable Rate that results from the Rate Reset Auction is equal to or greater
than the rate bid by such Existing Holder, and/or (iii) sell Capital Securities
without regard to the Applicable Rate that results from such Rate Reset Auction.
A Potential Holder (as defined herein) may also submit a Bid (as defined
herein). A Bid by an Existing Holder or a Potential Holder over the Treasury
Rate (as defined herein) on the Rate Reset Pricing Date, plus 5.0% per annum
will not be considered. Accordingly, the Auction Procedures establish the
maximum Applicable Rate per annum that can result from the Rate Reset Auction.
If Sufficient Clearing Bids (as defined herein) have been made in the Rate Reset
Auction, the Applicable Rate on the Junior Subordinated Debt Securities on and
after June 1, 1999 (or, if such date is not a Business Day, the succeeding
Business Day) (the "Rate Reset Date") will be equal to (i) the Winning Bid Rate
(as defined herein); or (ii) if all outstanding Capital Securities are subject
to Hold Orders (as defined herein), the Treasury Rate on the Rate Reset Date
plus 1.15% per annum (the "Full Participation Rate"). See "Description of the
Rate Reset Auction." In the Event of a Failed Auction (as defined herein), the
Corporation will be required to redeem the Junior Subordinated Debt Securities
at par plus any accrued and unpaid interest thereon on the Rate Reset Date. See
"Description of the Rate Reset Auction -- Determination of Sufficient Clearing
Bids, Winning Bid Rate and Applicable Rate." Upon redemption of the Junior
Subordinated Debt Securities, the proceeds of such redemption shall concurrently
be applied to redeem, at the applicable redemption price, the Capital
Securities, upon the terms and conditions described herein. See "Description of
Exchange Capital Securities -- Mandatory Redemption."
Prior to the Rate Reset Date, the Indenture provides that the failure by
the Corporation to pay interest on the Junior Subordinated Debt Securities when
due is a Debenture Event of Default (as defined herein) in which case the
Property Trustee may declare the principal of and the interest on the Junior
Subordinated Debt Securities due and payable. See "Description of Exchange
Junior Subordinated Debt Securities -- Debenture Events of Default; Notice."
After the Rate Reset Date and subject to certain exceptions, the Corporation has
the right to defer payments of interest on the Junior Subordinated Debt
Securities at any time or from time to time for a period not exceeding ten
consecutive semi-annual periods with respect to each deferral period (each, an
"Extension Period"); provided, however, that no Extension Period may extend
beyond the Stated Maturity of the Junior Subordinated Debt Securities. Upon the
termination of any Extension Period and the payment of all interest then accrued
and unpaid (together with interest thereon accumulated at the Applicable Rate,
compounded semi-annually, to the extent permitted by applicable law), the
Corporation may elect to begin a new Extension Period, subject to the
requirements set forth herein. If interest payments on the Junior Subordinated
Debt Securities are so deferred, during any Extension Period, Distributions on
the Capital
iii
<PAGE> 5
Securities and on the Common Securities will also be deferred, and the
Corporation will not be permitted, subject to certain exceptions described
herein, to declare or pay any cash distributions with respect to, or make
purchases of, the Corporation's capital stock (which includes common and
preferred stock) or to make any payment with respect to debt securities of the
Corporation that rank pari passu in all respects with or junior to the Junior
Subordinated Debt Securities. During an Extension Period, interest on the Junior
Subordinated Debt Securities will continue to accrue (and the amount of
Distributions to which holders of the Capital Securities are entitled will
accumulate) at the Applicable Rate compounded semi-annually, and holders of
Capital Securities will be required to accrue interest income for United States
federal income tax purposes. See "Description of Exchange Junior Subordinated
Debt Securities -- Option to Extend Interest Payment Date" and "Certain United
States Federal Income Tax Consequences -- Interest and Original Issue Discount."
Taken together, the Corporation's obligations under the Guarantee, the
Declaration, the Junior Subordinated Debt Securities and the Indenture,
including the Corporation's obligation to pay the costs, expenses and
liabilities of the Trust (other than the Trust's obligations to holders of the
Trust Securities under such Trust Securities), provide, in the aggregate, a full
and unconditional guarantee, to the extent described herein, of all of the
payments of Distributions and other amounts due on the Capital Securities. See
"Relationship Among the Capital Securities, the Junior Subordinated Debt
Securities and the Guarantee -- Full and Unconditional Guarantee." The
Corporation has agreed to guarantee the payment of Distributions and payments on
liquidation or redemption of the Capital Securities, but only in each case to
the extent of funds held by the Trust, as described herein. See "Description of
Exchange Guarantee." If the Corporation does not make interest payments on the
Junior Subordinated Debt Securities held by the Trust, the Trust will have
insufficient funds to pay Distributions on the Capital Securities. The Guarantee
does not cover the payment of Distributions when the Trust does not have
sufficient funds to pay such Distributions. In such event, a holder of Capital
Securities may institute a legal proceeding directly against the Corporation for
enforcement of payment to such holder of the principal of or interest on Junior
Subordinated Debt Securities having a principal amount equal to the aggregate
Liquidation Amount of the Capital Securities held by such holder (a "Direct
Action"). See "Description of Exchange Junior Subordinated Debt
Securities -- Enforcement of Certain Rights by Holders of Capital Securities."
The obligations of the Corporation under the Guarantee and the Junior
Subordinated Debt Securities are subordinate and junior in right of payment to
all Senior Debt (as defined herein) of the Corporation. See "Description of
Exchange Junior Subordinated Debt Securities." In addition, because the
Corporation is a holding company, the Junior Subordinated Debt Securities and
the Guarantee are effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries, including deposits. See "Risk
Factors -- Ranking of Obligations Under the Guarantee and the Junior
Subordinated Debt Securities" and "Status of the Corporation as a Bank Holding
Company."
Prior to the Rate Reset Date, the Corporation may not redeem the Junior
Subordinated Debt Securities for any reason. The Corporation must redeem the
Junior Subordinated Debt Securities in whole, but not in part, in the event of a
Failed Auction on the Rate Reset Date, at a redemption price equal to the
principal amount of, plus accrued and unpaid interest on, the Junior
Subordinated Debt Securities (the "Early Mandatory Redemption Price"). See
"Description of the Rate Reset Auction" and "Description of Exchange Junior
Subordinated Debt Securities -- Redemption -- Mandatory Redemption." The
Corporation may redeem the Junior Subordinated Debt Securities in whole, but not
in part, on the Rate Reset Date at a redemption price equal to the principal
amount of, plus accrued and unpaid interest on, the Junior Subordinated Debt
Securities (the "Early Optional Redemption Price"). In addition, subject to the
Corporation having received prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") to do so, if then required under
applicable capital guidelines or policies of the Federal Reserve, the
Corporation may redeem the Junior Subordinated Debt Securities (i) in whole or
in part, at any time on or after June 1, 2009, at the Optional Redemption Price
(as defined herein) or (ii) in whole, but not in part, after the Rate Reset
Date, in certain circumstances described herein upon the occurrence and
continuation of a Tax Event, '40 Act Event or Capital Treatment Event (each, a
"Special Event" and each as defined herein) within 90 days after the occurrence
of such Special Event, at a redemption price (the "Special Event Redemption
Price") equal to (A) the Make-Whole Amount (as defined herein) upon the
occurrence of a Special Event prior to June 1, 2009, or (B) the Optional
Redemption Price upon the occurrence of a
iv
<PAGE> 6
Special Event on or after June 1, 2009. See "Description of Exchange Junior
Subordinated Debt Securities -- Redemption -- Optional Redemption" and " -- Tax
Event, '40 Act Event and Capital Treatment Event Redemption." Each of the Early
Mandatory Redemption Price, the Early Optional Redemption Price, the Optional
Redemption Price and the Special Event Redemption Price is referred to herein as
the "Redemption Price." Upon repayment in full at Stated Maturity or redemption
of any Junior Subordinated Debt Securities (other than following the
distribution of the Junior Subordinated Debt Securities to the holders of the
Capital Securities), the proceeds from such repayment or redemption shall
concurrently be applied to redeem, at the applicable Redemption Price, Capital
Securities having a Liquidation Amount equal to the aggregate principal amount
of Junior Subordinated Debt Securities so redeemed, upon the terms and
conditions described herein. See "Description of Exchange Capital
Securities -- Mandatory Redemption."
The Corporation, as the holder of the outstanding Common Securities, has
the right at any time (including, without limitation, upon the occurrence of a
Tax Event, '40 Act Event or a Capital Treatment Event) to terminate the Trust
and cause a Like Amount (as defined herein) of the Junior Subordinated Debt
Securities to be distributed to the holders of the Capital Securities upon
liquidation of the Trust, subject to prior approval of the Federal Reserve to do
so, if then required under applicable capital guidelines or policies of the
Federal Reserve. In the event of such termination of the Trust, after
satisfaction of liabilities to creditors of the Trust as required by applicable
law, the holders of the Capital Securities generally will be entitled to receive
a Liquidation Amount of $1,000 per Capital Security plus accumulated and unpaid
Distributions thereon to the date of payment, which may be in the form of a
distribution of a Like Amount of Junior Subordinated Debt Securities in certain
circumstances. See "Description of Exchange Capital Securities -- Liquidation of
the Trust and Distribution of Junior Subordinated Debt Securities."
Except as provided below, the Capital Securities will be represented by
global certificates in fully registered form, deposited with a custodian for and
registered in the name of Cede & Co., as nominee for The Depository Trust
Company ("DTC" or the "Depository"). Beneficial interests in such Capital
Securities will be shown on, and transfers thereof will be effected through,
records maintained by DTC and its participants. Beneficial interests in such
Capital Securities will trade in DTC's Same-Day Funds Settlement System and
secondary market trading activity in such interests will therefore settle in
immediately available funds. The Capital Securities will be issued, and may be
transferred, only in a block having a Liquidation Amount of not less than
$100,000 (100 Capital Securities). Any transfer, sale or other disposition of
Capital Securities in a block having a liquidation amount of less than $100,000
shall be deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the holder of such Capital Securities for
any purpose, including but not limited to the receipt of distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Exchange Capital Securities.
The Corporation and the Trust are making the Exchange Offer of the Exchange
Capital Securities in reliance on the position of the staff of the Division of
Corporation Finance of the Securities and Exchange Commission (the "Commission")
as set forth in certain interpretive letters addressed to third parties in other
transactions. However, neither the Corporation nor the Trust has sought its own
interpretive letter, and there can be no assurance that the staff of the
Division of Corporation Finance of the Commission would make a similar
determination with respect to the Exchange Offer as it has in such interpretive
letters to third parties. Based on these interpretations by the staff of the
Division of Corporation Finance of the Commission, and subject to the two
immediately following sentences, the Corporation and the Trust believe that
Exchange Capital Securities issued pursuant to this Exchange Offer in exchange
for Old Capital Securities may be offered for resale, resold and otherwise
transferred by holders thereof (other than a holder who is a broker-dealer)
without further compliance with the registration and prospectus delivery
requirements of the Securities Act, provided that such Exchange Capital
Securities are acquired in the ordinary course of such holder's business and
that such holder is not participating, and has no arrangement or understanding
with any person to participate, in a distribution (within the meaning of the
Securities Act) of such Exchange Capital Securities. However, any holder of Old
Capital Securities who is an "affiliate" of the Corporation or the Trust within
the meaning of Rule 405 under the Securities Act (an "Affiliate") or who intends
to participate in the Exchange Offer for the purpose of distributing Exchange
Capital Securities, or any broker-dealer who purchased Old Capital Securities
from the Trust to resell pursuant to Rule 144A under the Securities Act
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<PAGE> 7
("Rule 144A") or any other available exemption under the Securities Act, (i)
will not be able to rely on the interpretations of the staff of the Division of
Corporation Finance of the Commission set forth in the above-mentioned
interpretive letters, (ii) will not be entitled to tender such Old Capital
Securities in the Exchange Offer and (iii) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
sale or other transfer of such Old Capital Securities unless such sale or other
transfer is made pursuant to an exemption from such requirements. In addition,
as described below, if any broker-dealer holds Old Capital Securities acquired
for its own account as a result of market-making or other trading activities and
exchanges such Old Capital Securities for Exchange Capital Securities (such
broker-dealer referred to herein as a "Participating Broker-Dealer"), then such
Participating Broker-Dealer must deliver a prospectus meeting the requirements
of the Securities Act in connection with any resales of such Exchange Capital
Securities.
Each holder of Old Capital Securities who wishes to exchange Old Capital
Securities for Exchange Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an Affiliate of the Trust or the
Corporation, (ii) any Exchange Capital Securities to be received by it are being
acquired in the ordinary course of its business, (iii) it has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such Exchange Capital Securities and (iv) if
such holder is not a broker-dealer, such holder is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act)
of such Exchange Capital Securities. The Letter of Transmittal contains the
foregoing representations. In addition, the Corporation and the Trust may
require such holder, as a condition to such holder's eligibility to participate
in the Exchange Offer, to furnish to the Corporation and the Trust (or an agent
thereof) in writing information as to the number of "beneficial owners" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) on behalf of whom such holder holds the Capital Securities
to be exchanged in the Exchange Offer. Each Participating Broker-Dealer must
acknowledge that it acquired the Old Capital Securities for its own account as
the result of market-making activities or other trading activities and must
agree that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Capital
Securities. See "Plan of Distribution." The Letter of Transmittal states that by
so acknowledging and by delivering a prospectus, a Participating Broker-Dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. Based on the position taken by the staff of the Division of
Corporation Finance of the Commission in the interpretive letters referred to
above, the Corporation and the Trust believe that Participating Broker-Dealers
who acquired Old Capital Securities for their own accounts as a result of
market-making activities or other trading activities may fulfill their
prospectus delivery requirements with respect to the Exchange Capital Securities
received upon exchange of such Old Capital Securities (other than Old Capital
Securities which represent an unsold allotment from the original sale of the Old
Capital Securities) with a prospectus meeting the requirements of the Securities
Act, which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such Exchange Capital Securities. Accordingly, this Prospectus, as it may be
amended or supplemented from time to time, may be used by a Participating
Broker-Dealer during the period referred to below in connection with resales of
Exchange Capital Securities received in exchange for Old Capital Securities
where such Old Capital Securities were acquired by such Participating
Broker-Dealer for its own account as a result of market-making or other trading
activities. Subject to certain provisions set forth in the Registration
Agreement, the Corporation and the Trust have agreed that this Prospectus, as it
may be amended or supplemented from time to time, may be used by a Participating
Broker-Dealer in connection with resales of such Exchange Capital Securities for
a period commencing on the Expiration Date (as defined herein) and ending one
year after the Expiration Date or, if earlier, when all such Exchange Capital
Securities have been disposed of by such Participating Broker-Dealer. See "Plan
of Distribution." Any Person, including a Participating Broker-Dealer who is an
Affiliate of the Trust or the Corporation may not rely on such interpretive
letters and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
See "The Exchange Offer -- Resales of Exchange Capital Securities."
Each Participating Broker-Dealer who surrenders Old Capital Securities
pursuant to the Exchange Offer will be deemed to have agreed, by execution of
the Letter of Transmittal, or delivery of an Agent's Message
vi
<PAGE> 8
(as defined herein), that, upon receipt of notice from the Corporation or the
Trust of the occurrence of any event or the discovery of any fact which makes
any statement contained or incorporated by reference in this Prospectus untrue
in any material respect or which causes this Prospectus to omit to state a
material fact necessary in order to make the statements contained or
incorporated by reference herein, in light of the circumstances under which they
were made, not misleading or of the occurrence of certain other events specified
in the Registration Agreement, such Participating Broker-Dealer will suspend the
sale of Exchange Capital Securities pursuant to this Prospectus until the
Corporation or the Trust has amended or supplemented this Prospectus to correct
such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such Participating Broker-Dealer, or the Corporation
or the Trust has given notice that the sale of the Exchange Capital Securities.
Prior to the Exchange Offer, there has been only a limited secondary market
and no public market for the Old Capital Securities. The Exchange Capital
Securities will be a new issue of securities for which there currently is no
market. Although the Initial Purchaser has informed the Corporation and the
Trust that it currently intends to make a market in the Exchange Capital
Securities, it is not obligated to do so, and any such market-making may be
discontinued at any time without notice. Accordingly, there can be no assurance
as to the development or liquidity of any market for the Exchange Capital
Securities.
Any Old Capital Securities not tendered and accepted in the Exchange Offer
will remain outstanding and will be entitled to all of the same rights and will
be subject to the same limitations applicable to the Old Capital Securities
under the Declaration (except for those rights relating to the Registration
Agreement, which terminate upon consummation of the Exchange Offer). Following
consummation of the Exchange Offer, the holders of Old Capital Securities will
continue to be subject to all of the existing restrictions upon transfer thereof
and neither the Corporation nor the Trust will have any further obligation to
such holders (other than under certain limited circumstances) to provide for
registration under the Securities Act of the Old Capital Securities held by
them. Even though a market might develop for the Exchange Capital Securities,
holders of Old Capital Securities will not be permitted or entitled to utilize
that market. To the extent that Old Capital Securities are tendered and accepted
in the Exchange Offer, a holder's ability to sell untendered Old Capital
Securities could be adversely affected. See "Risk Factors -- Consequences of a
Failure to Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS PROSPECTUS
AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO
TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or prior to 5:00
p.m., New York City time, on , 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is extended
by the Corporation and the Trust (in which case the term "Expiration Date" shall
mean the latest date and time to which the Exchange Offer is extended). Tenders
of Old Capital Securities may be withdrawn at any time prior to the Expiration
Date. The Exchange Offer is not conditioned upon any minimum Liquidation Amount
of Old Capital Securities being tendered for exchange. However, the Exchange
Offer is subject to certain events and conditions which may be waived by the
Corporation or the Trust and to the terms and provisions of the Registration
Agreement. Old Capital Securities may be tendered in whole or in part having a
Liquidation Amount of not less than $100,000 (100 Old Capital Securities) or any
integral multiple of $100,000 Liquidation Amount (100 Old Capital Securities) in
excess thereof. The Corporation has agreed to pay all expenses of the Exchange
Offer (other than certain transfer taxes relating to changes of ownership). See
"The Exchange Offer -- Fees and Expenses." Each Exchange Capital Security will
pay cumulative Distributions from the most recent Distribution Date (as defined
herein) on the Old Capital Securities surrendered in exchange for such Exchange
Capital Securities or, if no Distribution Date has occurred, from June 6, 1997.
Holders of the Old Capital Securities whose Old Capital Securities are accepted
for exchange will not receive accumulated Distributions on such Old Capital
Securities for any period from and after the last Distribution Date with respect
to such Old Capital Securities, prior to the original issue date of the Exchange
Capital Securities or, if no such Distributions have been paid, will not
vii
<PAGE> 9
receive any accumulated Distributions on such Old Capital Securities, and will
be deemed to have waived the right to receive any Distributions on such Old
Capital Securities accumulated from and after such Distribution Date or, if no
Distributions have been paid or duly provided for, from and after June 6, 1997.
This Prospectus, together with the Letter of Transmittal, is being sent to all
registered holders of Old Capital Securities as of , 1997.
Neither the Corporation nor the Trust will receive any cash proceeds from
the issuance of the Exchange Capital Securities offered hereby. No
dealer-manager is being used in connection with this Exchange Offer. See "Use of
Proceeds From Sale of Old Capital Securities" and "Plan of Distribution."
---------------------
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
NATIONAL CITY CORPORATION, INVESTOR INFORMATION, 1900 EAST NINTH STREET,
CLEVELAND, OHIO 44114-3484, TELEPHONE NUMBER (216) 575-9297. IN ORDER TO ENSURE
TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY ,
1997.
---------------------
THE JUNIOR SUBORDINATED DEBT SECURITIES ARE DIRECT AND UNSECURED
OBLIGATIONS OF THE CORPORATION, DO NOT EVIDENCE DEPOSITS AND ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE "FDIC") OR ANY OTHER INSURER OR
GOVERNMENTAL AGENCY. THE JUNIOR SUBORDINATED DEBT SECURITIES ARE SUBORDINATE TO
THE CLAIMS OF DEPOSITORS AND GENERAL CREDITORS OF THE CORPORATION.
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH, A "PLAN"), NO ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN
THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY
PLAN, MAY ACQUIRE OR HOLD THE CAPITAL SECURITIES OR ANY INTEREST THEREIN, UNLESS
SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23,
95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THE CAPITAL SECURITIES OR ANY INTEREST THEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT EITHER
(A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES
ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN OR (B) IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH
RESPECT TO SUCH PURCHASE OR HOLDING.
---------------------
THE EXCHANGE CAPITAL SECURITIES WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF $100,000 OR AN INTEGRAL MULTIPLE
OF $100,000 IN EXCESS THEREOF. ANY TRANSFER, SALE OR OTHER DISPOSITION OF
EXCHANGE CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN
$100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH EXCHANGE CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH EXCHANGE CAPITAL SECURITIES, AND SUCH TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH EXCHANGE CAPITAL SECURITIES.
viii
<PAGE> 10
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................................................................. 2
Incorporation of Certain Documents by Reference....................................... 3
Prospectus Summary.................................................................... 4
Risk Factors.......................................................................... 13
Use of Proceeds From Sale of Old Capital Securities................................... 20
National City Capital Trust I......................................................... 20
National City Corporation............................................................. 21
Recent Events......................................................................... 21
Ratio of Earnings to Fixed Charges.................................................... 23
Selected Historical Consolidated Financial Information................................ 24
Capitalization........................................................................ 25
Accounting Treatment.................................................................. 26
Regulatory Treatment.................................................................. 26
The Exchange Offer.................................................................... 26
Description of the Rate Reset Auction................................................. 35
Description of Exchange Capital Securities............................................ 41
Description of Exchange Junior Subordinated Debt Securities........................... 54
Description of Exchange Guarantee..................................................... 64
Description of Old Securities......................................................... 67
Relationship Among the Capital Securities, the Junior Subordinated Debt Securities and
the Guarantee....................................................................... 67
Certain United States Federal Income Tax Consequences................................. 69
Certain ERISA Considerations.......................................................... 72
Plan of Distribution.................................................................. 73
Validity of Exchange Securities....................................................... 74
Independent Accountants............................................................... 74
</TABLE>
---------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER MADE HEREBY EXCEPT AS CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, NO SUCH INFORMATION OR REPRESENTATIONS
SHOULD BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION, THE TRUST OR
ANY OF THEIR RESPECTIVE AGENTS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE INFORMATION SET FORTH HEREIN OR IN THE AFFAIRS
OF THE CORPORATION OR THE TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE CAPITAL
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
1
<PAGE> 11
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Exchange Act, and in accordance therewith, files reports, proxy statements and
other information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the regional offices of the Commission located at 7 World Trade Center, 13th
Floor, Suite 1300, New York, New York 10048 and Suite 1400, Citicorp Center,
14th Floor, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can also be obtained at prescribed rates by writing to the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. Such information may also be accessed electronically by means of the
Commission's home page on the Internet (http://www.sec.gov.).
The Corporation and the Trust have filed with the Commission a Registration
Statement on Form S-4 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act with respect to the
securities offered hereby. This Prospectus does not contain all the information
set forth in the Registration Statement, certain portions of which have been
omitted as permitted by the rules and regulations of the Commission. For further
information with respect to the Corporation, the Trust and the securities
offered hereby, reference is made to the Registration Statement and the exhibits
and the financial statements, notes and schedules filed as part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus concerning the contents of any documents
referred to herein are not necessarily complete, and in each instance are
qualified in all respects by reference to the copy of such document filed as an
exhibit to the Registration Statement.
No separate financial statements of the Trust have been included herein.
The Corporation and the Trust do not consider that such financial statements
would be material to holders of the Capital Securities because the Trust is a
newly formed special purpose entity, has no operating history or independent
operations and is not engaged in and does not propose to engage in any activity
other than holding as trust assets the Junior Subordinated Debt Securities and
issuing the Trust Securities. See "National City Capital Trust I," "Description
of Exchange Capital Securities," "Description of Exchange Junior Subordinated
Debt Securities," "Description of Exchange Guarantee," and "Description of Old
Securities." In addition, the Corporation does not expect that the Trust will
file reports under the Exchange Act with the Commission.
2
<PAGE> 12
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are
incorporated into this Prospectus by reference:
The Corporation's Annual Report on Form 10-K for the year ended December
31, 1996;
The Corporation's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1997, as amended on Form 10-Q/A on May 1, 1997;
The Corporation's Current Report on Form 8-K dated as of February 3, 1997;
The Corporation's Current Report on Form 8-K dated as of April 17, 1997;
and
The Corporation's Current Report on Form 8-K dated as of May 6, 1997.
Each document or report filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of any offering of securities made by this Prospectus shall be
deemed to be incorporated by reference into this Prospectus and to be a part of
this Prospectus from the date of filing of such document. Any statement
contained herein, or in a document all or a portion of which is 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 or 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.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus
including the documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of any
contract or other document referred to herein do not purport to be complete, and
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document. The Corporation will provide
without charge to any person to whom this Prospectus is delivered, on the
written or oral request of such person, a copy of any or all of the foregoing
documents incorporated by reference herein (other than exhibits not specifically
incorporated by reference into the texts of such documents). Requests for such
documents should be directed to:
Investor Information
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Telephone: (216) 575-9297
3
<PAGE> 13
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus and in the documents
incorporated by reference in this Prospectus.
NATIONAL CITY CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) the Declaration and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on May 29, 1997. The Trust's business and affairs
are conducted by the Issuer Trustees: The Bank of New York, as Property Trustee,
The Bank of New York (Delaware), as Delaware Trustee, and three individual
Administrative Trustees who are employees or officers of or affiliated with the
Corporation. The Trust exists for the exclusive purposes of (i) issuing and
selling the Trust Securities, (ii) using the proceeds from the sale of the Trust
Securities to acquire the Old Junior Subordinated Debt Securities issued by the
Corporation and (iii) engaging in only those other activities necessary,
advisable or incidental thereto, which includes engaging in this Exchange Offer.
The Junior Subordinated Debt Securities are the sole assets of the Trust, and
payments under the Junior Subordinated Debt Securities will be the sole revenues
of the Trust. All of the Common Securities are owned by the Corporation. The
Trust's executive offices are located at 1900 East Ninth Street, Cleveland, Ohio
44114-3484. Its mailing address is c/o National City Corporation, 1900 East
Ninth Street, Cleveland, Ohio 44114-3484 and its telephone number is (216)
575-2000.
NATIONAL CITY CORPORATION
National City is a $50 billion diversified financial services company based
in Cleveland, Ohio. At December 31, 1996, National City was the third largest
bank holding company headquartered in the State of Ohio and approximately the
19th largest in the United States on the basis of total assets. National City
owns and operates 11 commercial banks and 885 banking offices in Ohio, Kentucky,
Indiana and Pennsylvania. National City's five largest subsidiary banks (and
only significant subsidiaries) are National City Bank of Pennsylvania, National
City Bank, National City Bank of Columbus, National City Bank of Indiana and
National City Bank of Kentucky. The banks and other subsidiaries and divisions
are engaged in a variety of financial services businesses. In addition to a
general commercial banking business, National City or its subsidiaries are
engaged in trust, mortgage banking, merchant banking, leasing, item processing,
venture capital, insurance and other financial-related businesses.
National City, a Delaware corporation, is a bank holding company registered
with the Federal Reserve under the Bank Holding Company Act of 1956, as amended.
National City's executive offices are located at 1900 East Ninth Street,
Cleveland, Ohio 44114-3484, and its telephone number is (216) 575-2000.
THE EXCHANGE OFFER
The Exchange Offer.............. Up to $500,000,000 aggregate Liquidation
Amount of Exchange Capital Securities are
being offered in exchange for a like
aggregate Liquidation Amount of Old Capital
Securities. Holders may tender their Old
Capital Securities in whole or in part in a
Liquidation Amount of $100,000 (100 Capital
Securities), or any integral multiple of
$100,000 in excess thereof. The Corporation
and the Trust are making the Exchange Offer
in order to satisfy their obligations under
the Registration Agreement relating to the
Old Capital Securities. For a description of
the procedures for tendering Old Capital
Securities, see "The Exchange
Offer -- Procedures for Tendering Old Capital
Securities."
4
<PAGE> 14
Expiration Date................. 5:00 p.m., New York City time, on
, 1997 unless the Exchange
Offer is extended by the Corporation and the
Trust. See "The Exchange Offer -- Expiration
Date; Extensions; Amendments."
Conditions to the Exchange
Offer........................... The Exchange Offer is subject to certain
conditions, which may be waived by the
Corporation and the Trust in their sole
discretion. The Exchange Offer is not
conditioned upon any minimum Liquidation
Amount of Old Capital Securities being
tendered. See "The Exchange
Offer -- Conditions to the Exchange Offer."
The Corporation and the Trust reserve the
right in their sole and absolute discretion,
subject to applicable law, at any time and
from time to time, (i) to delay the
acceptance of the Old Capital Securities for
exchange, (ii) to terminate the Exchange
Offer if certain specified conditions have
not been satisfied, (iii) to extend the
Expiration Date of the Exchange Offer and
retain all Old Capital Securities tendered
pursuant to the Exchange Offer, subject,
however, to the right of holders of Old
Capital Securities to withdraw their tendered
Old Capital Securities and (iv) to waive any
condition or otherwise amend the terms of the
Exchange Offer in any respect. See "The
Exchange Offer -- Expiration Date;
Extensions; Amendments."
Withdrawal Rights............... Tenders of Old Capital Securities may be
withdrawn at any time on or prior to the
Expiration Date by delivering a written
notice of such withdrawal to the Exchange
Agent (as defined herein) in conformity with
certain procedures set forth below under "The
Exchange Offer -- Withdrawal Rights."
Procedures for Tendering
Old Capital Securities........ To participate in the Exchange Offer, holders
of Old Capital Securities must tender by (a)
book-entry transfer pursuant to the
procedures set forth under "The Exchange
Offer -- Procedures for Tendering Old Capital
Securities" or (b) forwarding certificates
representing such Old Capital Securities with
the Letter of Transmittal. Holders who are
participants in DTC tendering by book-entry
transfer must execute such tender through the
DTC's ATOP (as defined herein) procedures. A
holder using ATOP should transmit its
acceptance to DTC on or prior to the
Expiration Date. DTC will verify such
acceptance, execute a book-entry transfer of
the tendered Old Capital Securities into the
Exchange Agent's account at DTC and then send
to the Exchange Agent confirmation of such
book-entry transfer, including an Agent's
Message confirming that DTC has received an
express acknowledgment from such holder that
such holder has received and agrees to be
bound by the Letter of Transmittal and that
the Trust and the Corporation may enforce the
Letter of Transmittal against such holder.
The book-entry confirmation must be received
by the Exchange Agent in order for the tender
relating thereto to be effective.
If the tender is not made through ATOP,
certificates for such Old Capital Securities,
as well as the Letter of Transmittal (or
facsimile thereof), properly completed and
duly executed, with any required signature
guarantees, and any other documents required
by the Letter of Transmittal, must be
received by the
5
<PAGE> 15
Exchange Agent at its address set forth in
the Letter of Transmittal on or prior to the
Expiration Date in order for such tender to
be effective. See "The Exchange
Offer -- Procedures for Tendering Old Capital
Securities."
Letters of Transmittal and certificates
representing Old Capital Securities should
not be sent to the Corporation or the Trust.
Such documents should only be sent to the
Exchange Agent. Questions regarding how to
tender and requests for information should be
directed to the Exchange Agent. See "The
Exchange Offer -- Exchange Agent."
Resales of Exchange Capital
Securities...................... The Corporation and the trust are making the
Exchange Offer of the Exchange Capital
Securities in reliance on the position of the
staff of the Division of Corporation Finance
of the Commission as set forth in certain
interpretive letters addressed to third
parties in other transactions. However,
neither the Corporation nor the Trust has
sought its own interpretive letter, and there
can be no assurance that the staff of the
Division of Corporation Finance of the
Commission would make a similar determination
with respect to the Exchange Offer as it has
in such interpretive letters to third
parties. Based on these interpretations by
the staff of the Division of Corporation
Finance of the Commission, and subject to the
two immediately following sentences, the
Corporation and the Trust believe that
Exchange Capital Securities issued pursuant
to this Exchange Offer in exchange for Old
Capital Securities may be offered for resale,
resold and otherwise transferred by a holder
thereof (other than a holder who is an
Affiliate or a broker-dealer) without further
compliance with the registration and
prospectus delivery requirements of the
Securities Act, provided that such Exchange
Capital Securities are acquired in the
ordinary course of such holder's business and
that such holder is not participating, and
has no arrangement or understanding with any
person to participate, in a distribution
(within the meaning of the Securities Act) of
such Exchange Capital Securities. However,
any holder of Old Capital Securities who is
an Affiliate or who intends to participate in
the Exchange Offer for the purpose of
distributing Exchange Capital Securities, or
any broker-dealer who purchased the Old
Capital Securities from the Trust to resell
pursuant to Rule 144A or any other available
exemption under the Securities Act, (a) will
not be able to rely on the interpretations of
the staff of the Division of Corporation
Finance of the Commission set forth in the
above-mentioned interpretive letters, (b)
will not be permitted or entitled to tender
such Old Capital Securities in the Exchange
Offer and (c) must comply with the
registration and prospectus delivery
requirements or other transfer of such Old
Capital Securities unless such sale or other
transfer is made pursuant to an exemption
from such requirements. In addition, as
described below, if any Participating
Broker-Dealer holds Old Capital Securities
acquired for its own account as a result of
market-making or other trading activities and
exchanges such Old Capital Securities for
Exchange Capital Securities, then such
Participating Broker-
6
<PAGE> 16
Dealer must deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resales of such Exchange
Capital Securities.
Each holder of Old Capital Securities who
wishes to exchange Old Capital Securities for
Exchange Capital Securities in the Exchange
Offer will be required to represent that (i)
it is not an Affiliate, (ii) any Exchange
Capital Securities to be received by it are
being acquired in the ordinary course of its
business, (iii) it has no arrangement or
understanding with any person to participate
in a distribution (within the meaning of the
Securities Act) of such Exchange Capital
Securities and (iv) if such holder is not a
broker-dealer, such holder is not engaged in,
and does not intend to engage in, a
distribution (within the meaning of the
Securities Act) of such Exchange Capital
Securities. The Letter of Transmittal
contains the foregoing representations. Each
Participating Broker-Dealer must acknowledge
that it acquired the Old Capital Securities
for its own account as the result of
market-making activities or other trading
activities and must agree that it will
deliver a prospectus meeting the requirements
of the Securities Act in connection with any
resale of such Exchange Capital Securities.
See "Plan of Distribution." The Letter of
Transmittal states that by so acknowledging
and by delivering a prospectus, a
Participating Broker-Dealer will not be
deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
Based on the position taken by the staff of
the Division of Corporation Finance of the
Commission in the interpretive letters
referred to above, the Corporation and the
Trust believe that Participating
Broker-Dealers may fulfill their prospectus
delivery requirements with respect to the
Exchange Capital Securities received upon
exchange of such Old Capital Securities
(other than Old Capital Securities which
represent an unsold allotment from the
original sale of the Old Capital Securities)
with a prospectus meeting the requirements of
the Securities Act, which may be the
prospectus prepared for an exchange offer so
long as it contains a description of the plan
of distribution with respect to the resale of
such Exchange Capital Securities.
Accordingly, this Prospectus, as it may be
amended or supplemented from time to time,
may be used by a Participating Broker-Dealer
in connection with resales of Exchange
Capital Securities received in exchange for
Old Capital Securities where such Old Capital
Securities were acquired by such
Participating Broker-Dealer for its own
account as a result of market-making or other
trading activities. Subject to certain
provisions set forth in the Registration
Agreement, the Corporation and the Trust have
agreed that this Prospectus, as it may be
amended or supplemented from time to time,
may be used by a Participating Broker-Dealer
in connection with resales of such Exchange
Capital Securities for a period ending on the
close of business on the first anniversary
following the Expiration Date or, if earlier,
when all such Exchange Capital Securities
have been disposed of by such Participating
Broker-Dealer. See "Plan of Distribution."
Any person, including any Participating
7
<PAGE> 17
Broker-Dealer, who is an Affiliate may not
rely on such interpretive letters and must
comply with the registration and prospectus
delivery requirements of the Securities Act
in connection with any resale transaction.
See "The Exchange Offer -- Resales of
Exchange Capital Securities."
Exchange Agent.................. The Exchange Agent with respect to the
Exchange Offer is The Bank of New York (the
"Exchange Agent"). The addresses, and
telephone and facsimile numbers of the
Exchange Agent are set forth in "The Exchange
Offer -- Exchange Agent" and in the Letter of
Transmittal.
Federal Income Tax
Consequences.................... The exchange of an Old Capital Security for
an Exchange Capital Security should not
constitute a taxable exchange. See "Certain
United States Federal Income Tax
Consequences -- Exchange Offer."
THE EXCHANGE CAPITAL SECURITIES
Securities Offered.............. $500,000,000 aggregate Liquidation Amount of
Reset Asset Capital Securities (Liquidation
Amount $1,000 per Capital Security).
Distributions................... Holders of Exchange Capital Securities will
be entitled to receive cumulative cash
distributions arising from the payment of
interest on the Junior Subordinated Debt
Securities accruing from the date of original
issuance of the Old Capital Securities and
payable semi-annually in arrears on the 1st
day of June and December of each year,
commencing December 1, 1997, at the
Applicable Rate applied to the Liquidation
Amount of $1,000 per Capital Security. See
"Description of Exchange Capital
Securities -- Distributions." Prior to the
Rate Reset Date, the Applicable Rate on the
Junior Subordinated Debt Securities will be
6.75% per annum. On and after the Rate Reset
Date, the Applicable Rate on the Junior
Subordinated Debt Securities will be a rate
per annum determined on the basis of Orders
placed in a Rate Reset Auction to be held
three Business Days prior to the Rate Reset
Date. Pursuant to the Auction Procedures,
each Existing Holder will indicate its desire
to (i) continue to hold Capital Securities
without regard to the Applicable Rate that
results from the Rate Reset Auction, (ii)
continue to hold Capital Securities if the
Applicable Rate that results from the Rate
Reset Auction is equal to or greater than the
rate bid by such Existing Holder, and/or
(iii) sell Capital Securities without regard
to the Applicable Rate that results from such
Rate Reset Auction. A Bid by an Existing
Holder or a Potential Holder over the
Treasury Rate on the Rate Reset Pricing Date
plus 5.0% per annum will not be considered.
Accordingly, the Auction Procedures establish
the maximum applicable rate per annum that
can result from the Rate Reset Auction. If
Sufficient Clearing Bids have been made in
the Rate Reset Auction, the Applicable Rate
on the Junior Subordinated Debt Securities on
and after the Rate Reset Date will be equal
to (i) the Winning Bid Rate or (ii) if all
Capital Securities are subject to Hold
Orders, the Treasury Rate on the Rate Reset
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<PAGE> 18
Date plus 1.15% per annum. See "Description
of the Rate Reset Auction."
Extension Periods............... Prior to the Rate Reset Date, the Indenture
provides that the failure by the Corporation
to pay interest on the Junior Subordinated
Debt Securities when due is a Debenture Event
of Default in which case the Property Trustee
may declare the principal of and the interest
on the Junior Subordinated Debt Securities
due and payable. See "Description of Exchange
Junior Subordinated Debt
Securities -- Debenture Events of Default;
Notice." After the Rate Reset Date,
distributions on Capital Securities will be
deferred for the duration of any Extension
Period elected by the Corporation with
respect to the payment of interest on the
Junior Subordinated Debt Securities. No
Extension Period will exceed ten consecutive
semi-annual periods or extend beyond the
Stated Maturity of the Junior Subordinated
Debt Securities. See "Description of Exchange
Junior Subordinated Debt Securities -- Option
to Extend Interest Payment Date" and "Certain
United States Federal Income Tax
Consequences -- Interest and Original Issue
Discount."
Ranking......................... The Exchange Capital Securities will rank
pari passu, and payments thereon will be made
pro rata, with the Common Securities except
as described under "Description of Exchange
Capital Securities -- Subordination of Common
Securities." The Exchange Junior Subordinated
Debt Securities will rank pari passu with all
other junior subordinated debt securities
with substantially similar subordination
terms issued by the Corporation pursuant to
the Indenture ("Other Debentures"), and which
may be issued and sold (if at all) to other
trusts to be established by the Corporation
(if any), in each case similar to the Trust
("Other Trusts"), and will be unsecured and
subordinate and junior in right of payment to
the extent and in the manner set forth in the
Indenture to all Senior Debt of the
Corporation. See "Description of Exchange
Junior Subordinated Debt Securities." The
Exchange Guarantee will rank pari passu with
all other guarantees (if any) which may be
issued by the Corporation with respect to
capital securities (if any) which may be
issued by Other Trusts ("Other Guarantees")
and will constitute an unsecured obligation
of the Corporation and will rank subordinate
and junior in right of payment to the extent
and in the manner set forth in the Exchange
Guarantee to all Senior Debt of the
Corporation. See "Description of Exchange
Guarantee." In addition, because the
Corporation is a holding company, the
Exchange Junior Subordinated Debt Securities
and the Exchange Guarantee are effectively
subordinated to all existing and future
liabilities of the Corporation's
subsidiaries, including deposits. See "Risk
Factors -- Status of the Corporation as a
Bank Holding Company."
Mandatory Redemption............ The Corporation must redeem the Junior
Subordinated Debt Securities, in whole but
not in part, in the event of a Failed
Auction, on the Rate Reset Date at a
redemption price equal to the principal
amount of, plus accrued and unpaid interest
on, the Junior Subordinated Debt Securities.
See "Description of the
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<PAGE> 19
Rate Reset Auction" and "Description of
Exchange Junior Subordinated Debt
Securities -- Redemption -- Mandatory
Redemption." Upon the redemption of the
Junior Subordinated Debt Securities, the
proceeds of such redemption shall
concurrently be applied to redeem, at the
applicable Redemption Price, the Capital
Securities, upon the terms and conditions
described herein. See "Description of
Exchange Capital Securities -- Mandatory
Redemption."
Optional Redemption............. Prior to the Rate Reset Date, the Corporation
may not redeem the Junior Subordinated Debt
Securities for any reason. The Corporation
may redeem the Junior Subordinated Debt
Securities (i) in whole, but not in part, on
the Rate Reset Date at a redemption price
equal to the principal amount of, plus
accrued interest on, the Junior Subordinated
Debt Securities and (ii) in whole or in part
at any time on or after June 1, 2009, at the
Optional Redemption Price, subject to the
Corporation having received prior approval of
the Federal Reserve to do so, if then
required under applicable capital guidelines
or policies of the Federal Reserve. See
"Description of Exchange Junior Subordinated
Debt Securities -- Redemption -- Optional
Redemption." Upon the redemption in whole or
in part of the Junior Subordinated Debt
Securities, the proceeds of such redemption
shall concurrently be applied to redeem, at
the applicable Redemption Price, Capital
Securities having an aggregate Liquidation
Amount equal to the aggregate principal
amount of the Junior Subordinated Debt
Securities so redeemed, upon the terms and
conditions described herein. See "Description
of Exchange Capital Securities -- Mandatory
Redemption."
Tax Event, '40 Act Event and
Capital Treatment Event
Redemption.................... Prior to the Rate Reset Date, the Corporation
may not redeem the Junior Subordinated Debt
Securities for any reason, including the
occurrence of a Tax Event, '40 Act Event or
Capital Treatment Event. If at any time after
the Rate Reset Date a Tax Event, '40 Act
Event or a Capital Treatment Event should
occur and be continuing, the Corporation may,
within 90 days following the occurrence of
such Special Event, redeem the Junior
Subordinated Debt Securities, in whole but
not in part, at a redemption price equal to
(i) the Make-Whole Amount upon the occurrence
of a Special Event prior to June 1, 2009, and
(ii) the Optional Redemption Price upon the
occurrence of a Special Event on or after
June 1, 2009, subject to the Corporation
having received prior approval from the
Federal Reserve if then required under
applicable capital guidelines or policies of
the Federal Reserve. See "Description of
Exchange Junior Subordinated Debt
Securities -- Redemption -- Tax Event, '40
Act Event and Capital Treatment Event
Redemption." Upon the redemption of the
Junior Subordinated Debt Securities, the
proceeds of such redemption shall
concurrently be applied to redeem, at the
Special Event Redemption Price, the Trust
Securities, upon the terms and conditions
described herein. See "Description of
Exchange Capital Securities -- Mandatory
Redemption."
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<PAGE> 20
Ratings......................... The Exchange Capital Securities are expected
to be rated "A-" by Standard & Poor's Ratings
Services and "a1" by Moody's Investors
Service, Inc. A security rating is not a
recommendation to buy, sell or hold
securities and may be subject to revision or
withdrawal at any time by the assigning
rating organization. There can be no
assurance that the Exchange Capital
Securities will continue to be so rated in
the future or that such ratings will not be
adversely affected by certain changes in the
terms of the Exchange Junior Subordinated
Debt Securities after the Rate Reset Date.
ERISA Considerations............ Prospective Purchasers must carefully
consider the restrictions on purchase set
forth under "Certain ERISA Considerations."
Absence of Market for the
Capital Securities............ The Exchange Capital Securities will be a new
issue of securities for which there is
currently no market. Although the Initial
Purchaser informed the Trust and the
Corporation in connection with the offering
of the Old Capital Securities that it
intended to make a market in the Old Capital
Securities and, if issued, the Exchange
Capital Securities, the Initial Purchaser is
not obligated to do so, and any such market
making may be discontinued at any time
without notice. Accordingly, there can be no
assurance as to the development or liquidity
of any market for the Old Capital Securities
or the Exchange Capital Securities. See "Plan
of Distribution."
Use of Proceeds................. Neither the Corporation nor the Trust will
receive any cash proceeds from the issuance
of the Exchange Capital Securities offered
hereby. See "Use of Proceeds from Sale of Old
Capital Securities."
Other........................... For additional information regarding the
Capital Securities, see "Description of the
Rate Reset Auction," "Description of Exchange
Capital Securities," "Description of Exchange
Junior Subordinated Debt Securities,"
"Description of Exchange Guarantee,"
"Description of Old Capital Securities" and
"Certain United States Federal Income Tax
Consequences."
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<PAGE> 21
RATE RESET AUCTION
RATE RESET AUCTION PROCEDURES
Prior to the Submission Deadline for the Rate Reset Auction, each Existing
Holder of Capital Securities may submit to the Remarketing Agent (as defined
herein), one or more of the following Orders:
- Hold Order -- indicating a desire to hold a specified amount of
outstanding Capital Securities without regard to the Applicable Rate on
and after the Rate Reset Date.
- Bid -- indicating a desire to hold a specified amount of outstanding
Capital Securities if the Applicable Rate on and after the Rate Reset
Date is not less than the rate specified in such Bid.
- Sell Order -- indicating a desire to sell a specified amount of
outstanding Capital Securities without regard to the Applicable Rate on
and after the Rate Reset Date.
Potential Holders of Capital Securities may submit Bids, to the Remarketing
Agent, in which they will offer to purchase Capital Securities if the Applicable
Rate on and after the Rate Reset Date is not less than the rate specified in
such Bid. The Remarketing Agent will submit the Bids to the Auction Agent (as
defined herein) by 10:00 a.m. on the Business Day following the Submission
Deadline. The Auction Agent will determine if Sufficient Clearing Bids have been
made and, if so, the Winning Bid Rate in accordance with the procedures set
forth herein.
An Order may be submitted only in a stated Liquidation Amount of $100,000
or an integral multiple of $100,000 in excess thereof. An Existing Holder may
submit different types of Orders in the Rate Reset Auction with respect to
Capital Securities then held by such Existing Holder, provided that the total
stated Liquidation Amount of Capital Securities covered by such Orders does not
exceed the stated Liquidation Amount of Capital Securities held by such Existing
Holder. An Existing Holder that offers to purchase additional Capital Securities
is, for purposes of such offer, treated as a Potential Holder as described
below. Bids by Existing Holders with rates higher than the Treasury Rate on the
Rate Reset Pricing Date plus 5.0% per annum (the "Maximum Applicable Rate") will
be treated as Sell Orders, and Bids by a Potential Holder with a rate higher
than the Maximum Applicable Rate will not be considered. Accordingly, the
Auction Procedures establish the maximum applicable rate per annum that can
result from the Rate Reset Auction. A Sell Order will be deemed to have been
submitted on behalf of an Existing Holder if an Order is not submitted on behalf
of such Existing Holder for any reason.
If Sufficient Clearing Bids have been made (that is, the aggregate
principal amount of Capital Securities subject to Bids by Potential Holders with
rates equal to or lower than the Maximum Applicable Rate is at least equal to
the aggregate principal amount of Capital Securities subject to Sell Orders by
Existing Holders), the Applicable Rate on and after the Rate Reset Date will be
the lowest rate specified in the Submitted Bids, which, taking into account such
rate and all lower rates bid by Existing Holders and Potential Holders, would
result in Existing Holders that have placed Submitted Bids and Potential Holders
owning all of the Capital Securities available for purchase in the Rate Reset
Auction. If Sufficient Clearing Bids have not been made (a "Failed Auction"),
the Corporation will be required on the Rate Reset Date to redeem the Junior
Subordinated Debt Securities at par plus any accrued and unpaid interest
thereon. See "Description of Exchange Junior Subordinated
Debentures -- Redemption -- Mandatory Redemption." If all outstanding Capital
Securities are subject to Hold Orders, the Applicable Rate on and after the Rate
Reset Date will be the Full Participation Rate, which is the Treasury Rate on
the Rate Reset Date plus 1.15% per annum.
The Auction Procedures include a pro rata allocation of Capital Securities
for purchase, which may result in an Existing Holder or a Potential Holder
purchasing a stated Liquidation Amount of Capital Securities that is less than
the principal amount of Capital Securities specified in its Order. Existing
Holders electing to hold or sell Capital Securities will not be subject to
proration procedures.
RISK FACTORS
Holders tendering Old Capital Securities in the Exchange Offer should
carefully consider the matters set forth under "Risk Factors."
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<PAGE> 22
RISK FACTORS
Holders of the Old Capital Securities should carefully review the
information contained elsewhere in this Prospectus and should particularly
consider the following matters prior to tendering Old Capital Securities in the
Exchange Offer.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED DEBT
SECURITIES
The obligations of the Corporation under the Guarantee issued by the
Corporation for the benefit of the holders of Capital Securities and under the
Junior Subordinated Debt Securities are unsecured and rank subordinate and
junior in right of payment to all Senior Debt (which, as defined, includes
without limitation all outstanding subordinated debt of the Corporation) of the
Corporation. At March 31, 1997, the aggregate outstanding Senior Debt of the
Corporation, on an unconsolidated basis, was approximately $834 million. The
obligations of the Corporation under the Guarantee also rank subordinate and
junior in right of payment to creditors of the Corporation's subsidiaries. See
"-- Status of the Corporation as a Bank Holding Company." The Corporation will
not have any indebtedness that ranks pari passu with or junior to its
obligations under the Guarantee and the Junior Subordinated Debt Securities.
None of the Indenture, the Guarantee or the Declaration places any limitation on
the amount of secured or unsecured debt, including Senior Debt, that may be
incurred by the Corporation or any subsidiary. See "Description of Exchange
Junior Subordinated Debt Securities -- Subordination" and "Description of
Exchange Guarantee -- Status of the Guarantee."
The ability of the Trust to pay amounts due on the Capital Securities is
solely dependent upon the Corporation making payments on the Junior Subordinated
Debt Securities as and when required.
STATUS OF THE CORPORATION AS A BANK HOLDING COMPANY
The Corporation is a legal entity separate and distinct from its
subsidiaries, although the principal source of the Corporation's cash revenues
is dividends from its subsidiaries. The right of the Corporation to participate
in the distribution of assets of any subsidiary, upon the latter's liquidation,
reorganization or otherwise (and thus the ability of the holders of Capital
Securities to benefit indirectly from any such distribution) will be subject to
the prior claims of such subsidiary's creditors, which will take priority except
to the extent that the Corporation may itself be a creditor of such subsidiary
with a recognized claim. As of March 31, 1997, the Corporation's subsidiaries
had indebtedness and other liabilities of approximately $44.9 billion.
Accordingly, the Junior Subordinated Debt Securities will be effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Junior Subordinated Debt Securities should look
only to the assets of the Corporation for payments on the Junior Subordinated
Debt Securities. Because the Corporation is a holding company with limited
assets and liabilities, a substantial portion of the consolidated liabilities of
the Corporation are liabilities of its subsidiaries. The Guarantee constitutes
an unsecured obligation of the Corporation and ranks subordinate and junior in
right of payment to all Senior Debt in the same manner as the Junior
Subordinated Debt Securities.
As a holding company, the Corporation conducts its operations principally
through its subsidiaries and, therefore, its principal source of cash, other
than its investing and financing activities, is receipt of dividends from its
subsidiaries. However, there are legal limitations on the source and amount of
dividends that a national bank is permitted to pay. A national bank may pay
dividends only to the extent that retained net profits (including the portion
transferred to surplus) exceed bad debts (as defined by regulation). Moreover,
unless a national bank's surplus fund equals its common capital, dividends may
be paid only after 10 percent of its net profits (as defined by regulation) for
the specified preceding period have been transferred to the bank's surplus fund.
In addition, prior approval of the Office of Comptroller of the Currency (the
"OCC") is required if the total of all dividends declared by a national bank in
any calendar year will exceed the sum of that bank's net profits for that year
and its retained net profits for the preceding two calendar years, less any
required transfers to either surplus or any fund for retirement of any preferred
stock. At March 31, 1997 the Corporation's bank subsidiaries could have paid
$558 million in dividends to the Corporation without prior OCC approval. The
payment of dividends by the Corporation's subsidiaries will also be affected by
other factors, such as requirements for the maintenance of adequate capital. In
addition, the OCC is authorized to
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<PAGE> 23
determine, under certain circumstances relating to the financial condition of a
national bank, whether the payment of dividends would be an unsafe or unsound
banking practice and to prohibit payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
After the Rate Reset Date and so long as no Debenture Event of Default has
occurred and is continuing, the Corporation has the right under the Indenture to
defer the payment of interest on the Junior Subordinated Debt Securities at any
time or from time to time for a period not exceeding ten consecutive semi-annual
periods with respect to each Extension Period; provided, however, that no
Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. As a consequence of any such deferral, semi-annual
Distributions on the Capital Securities by the Trust will also be deferred (and
the amount of Distributions to which holders of the Capital Securities are
entitled will accumulate additional Distributions thereon at the Applicable Rate
thereof, compounded semi-annually from the relevant payment date for such
Distributions during any such Extension Period). During any Extension Period,
the Corporation may not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Corporation's capital stock (which includes common and preferred stock),
(ii) make any payment of principal, interest or premium, if any, on, or repay,
repurchase or redeem any debt securities of the Corporation (including Other
Debentures) that rank pari passu with or junior in interest to, the Junior
Subordinated Debt Securities or (iii) make any guarantee payments with respect
to any guarantee by the Corporation of the debt securities of any subsidiary of
the Corporation (including Other Guarantees) if such guarantee ranks pari passu
with or junior in interest to the Junior Subordinated Debt Securities (other
than (a) dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee, (d) purchases or acquisitions of shares of the
Corporation's common stock in connection with the satisfaction by the
Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual obligation
ranking pari passu with or junior to the Junior Subordinated Debt Securities),
(e) as a result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital stock
for another class or series of the Corporation's capital stock or (f) the
purchase of fractional interests in shares of the Corporation's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged). Prior to the termination of any
Extension Period, the Corporation may further extend such Extension Period;
provided, however, that such extension does not cause such Extension Period to
exceed ten consecutive semi-annual periods or to extend beyond the Stated
Maturity of the Junior Subordinated Debt Securities. Upon the termination of any
Extension Period and the payment of all interest then accrued and unpaid on the
Junior Subordinated Debt Securities (together with interest thereon accrued at
the Applicable Rate compounded semi-annually, to the extent permitted by
applicable law), and subject to the foregoing limitations, the Corporation may
elect to begin a new Extension Period. There is no limitation on the number of
times that the Corporation may elect to begin an Extension Period. See
"Description of Exchange Capital Securities -- Distributions" and "Description
of Exchange Junior Subordinated Debt Securities -- Option to Extend Interest
Payment Date."
The Corporation believes, and will take the position, that the Junior
Subordinated Debt Securities will be considered to be issued without "original
issue discount" ("OID") for United States federal income tax purposes based on
applicable Treasury Regulations. Based on this position, holders of Capital
Securities generally will include their allocable share of the interest on the
Junior Subordinated Debt Securities in taxable income under their own methods of
tax accounting (i.e., cash or accrual). Under applicable Treasury Regulations,
however, if the Corporation were to exercise its right to defer payments of
interest, the Junior Subordinated Debt Securities would become OID instruments
and would remain as such for as long as the Junior Subordinated Debt Securities
remained outstanding. Consequently, for United States federal income tax
purposes, holders of Capital Securities would be required to include their pro
rata share of OID in gross income as it accrues in advance of the receipt of
cash attributable to such interest income. Such holders would not receive the
cash related to such income if they dispose of the Capital Securities prior to
the record date for
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<PAGE> 24
payment of distributions thereafter. See "Certain United States Federal Income
Tax Consequences -- Interest and Original Issue Discount" and "-- Disposition of
the Capital Securities."
Should the Corporation elect to exercise its right to defer payments of
interest on the Junior Subordinated Debt Securities in the future, the market
price of the Capital Securities is likely to be affected. A holder that disposes
of its Capital Securities during an Extension Period, therefore, might not
receive the same return on its investment as a holder that continues to hold its
Capital Securities. In addition, as a result of the existence of the
Corporation's right to defer interest payments on the Junior Subordinated Debt
Securities after the Rate Reset Date, the market price of the Capital Securities
(which represent beneficial ownership interests in the Trust holding the Junior
Subordinated Debt Securities as its sole assets) may be more volatile than the
market prices of other securities that are not subject to such deferrals.
TAX EVENT, '40 ACT EVENT OR CAPITAL TREATMENT EVENT REDEMPTION
After the Rate Reset Date and upon the occurrence and continuation of a Tax
Event, '40 Act Event or a Capital Treatment Event (each a "Special Event"), the
Corporation may, at its option within 90 days following the occurrence of such
Special Event and subject to receipt of prior approval of the Federal Reserve if
such approval is then required under applicable capital guidelines or policies,
redeem the Junior Subordinated Debt Securities in whole, but not in part, at the
Special Event Redemption Price. In such event, the Trust will redeem the Capital
Securities. See "Description of Exchange Junior Subordinated Debt
Securities -- Redemption -- Tax Event, '40 Act Event and Capital Treatment Event
Redemption," "Description of Exchange Capital Securities -- Mandatory
Redemption" and "Description of Exchange Capital Securities -- Liquidation of
the Trust and Distribution of Junior Subordinated Debt Securities."
POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL SECURITIES
On February 6, 1997, the revenue portion of President Clinton's fiscal year
1998 budget proposal (the "Budget Proposal") was released. If enacted, the
Budget Proposal would generally deny interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 15 years
and that is not shown as indebtedness on the separate balance sheet of the
issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the Corporation's consolidated
balance sheet. The above described provision of the Budget Proposal is proposed
to be effective generally for instruments issued on or after the date of first
Congressional committee action. No such action has yet occurred and neither the
House of Representatives nor the Senate has included the above described
provision of the Budget Proposal in the revenue provisions of H.R. 2014 (as
approved by the House of Representatives on June 26, 1997 and by the Senate on
June 27, 1997). If the above described provision were to apply to the Junior
Subordinated Debt Securities, the Corporation would be unable to deduct interest
on the Junior Subordinated Debt Securities. Under current law, the Corporation
will be able to deduct interest on the Junior Subordinated Debt Securities.
There can be no assurance, however, that current or future legislative proposals
or final legislation will not affect the ability of the Corporation to deduct
interest on the Junior Subordinated Debt Securities. Such a change could give
rise to a Tax Event, which, after the Rate Reset Date, may permit the
Corporation to cause a redemption of the Capital Securities, as described more
fully under "Description of Exchange Capital Securities -- Mandatory Redemption"
and "Description of Exchange Junior Subordinated Debt Securities --
Redemption -- Tax Event, '40 Act Event and Capital Treatment Event Redemption."
See also "Certain United States Federal Income Tax Consequences -- Possible Tax
Law Changes."
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Corporation, as the holder of the outstanding Common Securities, has
the right at any time to terminate the Trust and cause the Junior Subordinated
Debt Securities to be distributed to the holders of the Capital Securities.
Under current United States federal income tax law and interpretations thereof
and assuming, as expected, that the Trust is treated as a grantor trust for
United States federal income tax purposes, a distribution by the Trust of the
Junior Subordinated Debt Securities pursuant to a liquidation of the Trust would
not be a taxable event to the Trust or to holders of the Capital Securities and
would result in a
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<PAGE> 25
holder of a Capital Securities receiving directly such holder's pro rata share
of the Junior Subordinated Debt Securities (previously held indirectly through
the Trust). If, however, the liquidation of the Trust were to occur because the
Trust is subject to United States federal income tax with respect to income
accrued or received on the Junior Subordinated Debt Securities as a result of
the occurrence of a Tax Event or otherwise, the distribution of Junior
Subordinated Debt Securities to holders of the Capital Securities by the Trust
would be a taxable event to the Trust and each holder of Capital Securities, and
such holders would recognize gain or loss as if they had exchanged their Capital
Securities for the Junior Subordinated Debt Securities they received upon the
liquidation of the Trust. See "Certain United States Federal Income Tax
Consequences -- Distribution of Junior Subordinated Debt Securities or Cash Upon
Liquidation of the Trust."
There can be no assurance as to the market prices for Capital Securities,
or Junior Subordinated Debt Securities that may be distributed in exchange for
Capital Securities, if a liquidation of the Trust occurs. Accordingly, the
Capital Securities or the Junior Subordinated Debt Securities may trade at a
discount to the price that the investor paid to purchase the Capital Securities
offered hereby. Because holders of Capital Securities may receive Junior
Subordinated Debt Securities on termination of the Trust, prospective purchasers
of Capital Securities are also making an investment decision with regard to the
Junior Subordinated Debt Securities and should carefully review all the
information regarding the Junior Subordinated Debt Securities contained herein.
See "Description of Exchange Capital Securities -- Liquidation of the Trust and
Distribution of the Junior Subordinated Debt Securities" and "Description of
Exchange Junior Subordinated Debt Securities -- General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Capital Securities the
following payments, to the extent not paid by the Trust: (i) any accumulated and
unpaid Distributions required to be paid on the Capital Securities, to the
extent that the Trust has funds on hand available therefor at such time,
(ii) the applicable Redemption Price with respect to any Capital Securities
called for redemption, to the extent that the Trust has funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary dissolution,
winding-up or liquidation of the Trust (unless the Junior Subordinated Debt
Securities are distributed to holders of the Capital Securities), the lesser of
(a) the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment, to the extent that the Trust has funds on
hand available therefor at such time, and (b) the amount of assets of the Trust
remaining available for distribution to holders of the Capital Securities after
the satisfaction of liabilities to creditors of the Trust as provided by
applicable law.
The holders of not less than a majority in aggregate Liquidation Amount of
the Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust power conferred
upon the Guarantee Trustee under the Guarantee. Any holder of the Capital
Securities may institute a legal proceeding directly against the Corporation to
enforce its rights under the Guarantee without first instituting a legal
proceeding against the Trust, the Guarantee Trustee or any other person or
entity. If the Corporation were to default on its obligation to pay amounts
payable under the Junior Subordinated Debt Securities, the Trust would lack
funds for the payment of Distributions or amounts payable on redemption of the
Capital Securities or otherwise, and, in such event, holders of the Capital
Securities would not be able to rely upon the Guarantee for payment of such
amounts. Instead, in the event a Debenture Event of Default shall have occurred
and be continuing and such event is attributable to the failure of the
Corporation to pay principal of or interest on the Junior Subordinated Debt
Securities on the applicable payment date, then a holder of Capital Securities
may institute a Direct Action. Notwithstanding any payments made to a holder of
Capital Securities by the Corporation in connection with a Direct Action, the
Corporation shall remain obligated to pay the principal of and interest on the
Junior Subordinated Debt Securities, and the Corporation shall be subrogated to
the rights of the holder of such Capital Securities with respect to payments on
the Capital Securities to the extent of any payments made by the Corporation to
such holder in any Direct Action. Except as described herein, holders of Capital
Securities will not be able to exercise directly any other remedy available to
the holders of the Junior Subordinated Debt Securities or assert directly any
other rights in respect of the Junior Subordinated Debt Securities. See
"Description of Exchange Junior Subordinated Debt
16
<PAGE> 26
Securities -- Enforcement of Certain Rights by Holders of Capital Securities,"
"Description of Exchange Junior Subordinated Debt Securities -- Debenture Events
of Default" and "Description of Exchange Guarantee." The Declaration provides
that each holder of Capital Securities by acceptance thereof agrees to the
provisions of the Guarantee and the Indenture. The Bank of New York will act as
Guarantee Trustee under the Guarantee and will hold the Guarantee for the
benefit of the holders of the Capital Securities. The Bank of New York will also
act as Property Trustee under the Declaration and as Debenture Trustee under the
Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities generally have limited voting rights relating
only to the modification of the Capital Securities, the dissolution, winding-up
or liquidation of the Trust, and the exercise of the Trust's rights as holder of
Junior Subordinated Debt Securities. The right to vote to appoint, remove or
replace the Property Trustee, the Delaware Trustee or the Administrative
Trustees is vested exclusively in the holder of the Common Securities except,
with respect to the Property Trustee and the Delaware Trustee, upon the
occurrence of certain events described herein. The Property Trustee, the
Administrative Trustees and the Corporation may amend the Declaration without
the consent of holders of Capital Securities to ensure that the Trust will be
classified for United States federal income tax purposes as a grantor trust,
even if such action adversely affects the interests of such holders. See
"Description of Exchange Capital Securities -- Removal of Issuer Trustees" and
" -- Voting Rights; Amendment of the Declaration."
REGULATORY CAPITAL REQUIREMENTS
The Corporation is subject to regulatory capital guidelines. At March 31,
1997, the Corporation was in compliance with applicable regulatory capital
requirements. The Corporation, at that date, had a total capital to
risk-weighted assets ratio of 14.74% and a Tier 1 Capital to risk-weighted
assets ratio of 9.70%, both above the minimum requirements of 8.0% and 4.0%,
respectively. The Corporation's leverage ratio at that date was 7.86%.
Although the minimum leverage ratio requirement is 3.00%, most bank holding
companies, including the Corporation, are expected to maintain an additional
cushion of at least 100 to 200 basis points above the minimum. However, the
Federal Reserve may assign a specific capital ratio to an individual bank
holding company, including the Corporation, based on its assessment of asset
quality, earnings performance, interest-rate risk and liquidity. As of the date
of this Prospectus, the Federal Reserve has not advised the Corporation of a
specific leverage ratio requirement.
There can be no assurance that the Corporation will continue to be able to
meet its respective minimum capital ratios. In the event that the Corporation
falls below the minimum capital requirements described above, agencies may take
regulatory action. Such actions could impair the Corporation's ability to make
principal and interest payments on the Junior Subordinated Debt Securities.
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the Securities
Act or any state securities laws and therefore may not be offered, sold or
otherwise transferred except in compliance with the registration requirements of
the Securities Act and any other applicable securities laws, or pursuant to an
exemption therefrom or in a transaction not subject thereto, and in each case in
compliance with certain other conditions and restrictions. Old Capital
Securities that remain outstanding after consummation of the Exchange Offer will
continue to bear a legend reflecting such restrictions on transfer. In addition,
upon consummation of the Exchange Offer, holders of Old Capital Securities that
remain outstanding will not be entitled to any rights to have such Old Capital
Securities registered under the Securities Act or to any similar rights under
the Registration Agreement (subject to certain limited exceptions). The
Corporation and the Trust do not intend to register under the Securities Act any
Old Capital Securities that remain outstanding after consummation of the
Exchange Offer (subject to such limited exceptions, if applicable).
17
<PAGE> 27
To the extent that Old Capital Securities are tendered and accepted in the
Exchange Offer, a holder's ability to sell untendered Old Capital Securities
could be adversely affected. In addition, to the extent that Old Capital
Securities are tendered and accepted in connection with the Exchange Offer, any
trading market for Old Capital Securities that remain outstanding after the
Exchange Offer could be adversely affected.
The Exchange Capital Securities and any Old Capital Securities that remain
outstanding after consummation of the Exchange Offer will constitute a single
series of Capital Securities under the Declaration and, accordingly, will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the Declaration. See
"Description of Exchange Capital Securities -- General."
The Registration Agreement provides that if the Exchange Offer is not
consummated by December 3, 1997, the Distribution rate borne by the holders of
Old Capital Securities will increase by 0.25% per annum commencing on December
4, 1997 until the Exchange Offer is consummated. The aggregate amount of such
additional Distributions payable pursuant to the foregoing provisions will in no
event exceed 0.50% per annum. See "Description of Old Capital Securities." Upon
consummation of the Exchange Offer, the holders of Capital Securities will not
be entitled to any such increase in the Distribution rate thereon.
ABSENCE OF PUBLIC MARKET
The Old Capital Securities have not been registered under the Securities
Act and will be subject to significant restrictions on resale to the extent that
they are not exchanged for Exchange Capital Securities. Although the Exchange
Capital Securities will generally be permitted to be resold or otherwise
transferred by the holders (who are not Affiliates of the Corporation or the
Trust) without compliance with the registration requirements under the
Securities Act, they will constitute a new issue of securities with no
established trading market. The Capital Securities may be transferred only in
blocks having a stated Liquidation Amount of $100,000 (100 Capital Securities or
Exchange Capital Securities, as the case may be) or an integral multiple of
$100,000 in excess thereof. There is no existing market for the Exchange Capital
Securities and there can be no assurance as to the liquidity of any markets that
may develop for the Exchange Capital Securities or the ability of the holders to
sell their Exchange Capital Securities or at what price holders of the Exchange
Capital Securities will be able to sell such Exchange Capital Securities. Future
trading prices of the Exchange Capital Securities will depend on many factors
including, among other things, prevailing interest rates, the Corporation's
operating results and the market for similar securities. The Initial Purchaser
informed the Corporation and the Trust in connection with the offering of the
Old Capital Securities that the Initial Purchaser intended to make a market in
the Old Capital Securities and, if issued, the Exchange Capital Securities;
however, the Initial Purchaser is not obligated to do so and any such market
making activity may be terminated at any time without notice to the holders of
the Exchange Capital Securities.
Notwithstanding the registration of the Exchange Capital Securities
pursuant to the Exchange Offer, holders who are Affiliates of the Corporation or
the Trust may publicly offer for sale or resell the Exchange Capital Securities
only in compliance with the provisions of Rule 144 under the Securities Act.
Each Participating Broker-Dealer that receives Exchange Capital Securities
for its own account in exchange for Old Capital Securities, where such Old
Capital Securities were acquired by such Participating Broker-Dealer as a result
of market-making activities or other trading activities, must acknowledge that
it acquired the Old Capital Securities for its own account as the result of
market-making activities or other trading activities and must agree that it will
deliver a prospectus in connection with any resale of such Exchange Capital
Securities. See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Subject to certain exceptions more fully described under "The Exchange
Offer -- Acceptance for Exchange and Issuance of Exchange Capital Securities,"
issuance of the Exchange Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Exchange Agent of such Old Capital Securities (unless such holder
complies with the procedures specified for guaranteed delivery of the Old
Capital Securities), a properly completed and duly executed
18
<PAGE> 28
Letter of Transmittal or Agent's Message in lieu thereof and all other required
documents. Therefore, holders of the Old Capital Securities desiring to tender
such Old Capital Securities in exchange for Exchange Capital Securities should
allow sufficient time to ensure timely delivery. None of the Corporation, the
Trust or the Exchange Agent is under any duty to give notification of defects or
irregularities with respect to the tenders of Old Capital Securities for
exchange.
19
<PAGE> 29
USE OF PROCEEDS FROM SALE OF OLD CAPITAL SECURITIES
Neither the Trust nor the Corporation will receive cash proceeds from the
issuance of the Exchange Capital Securities offered hereby. In consideration for
issuing the Exchange Capital Securities in exchange for Old Capital Securities
as described in this Prospectus, the Trust will receive Old Capital Securities
in like Liquidation Amount. The Old Capital Securities surrendered in exchange
for the Exchange Capital Securities will be retired and canceled.
The net proceeds to the Trust from the offering of the Old Capital
Securities were $498,910,000.
All of the proceeds from the sale of the Old Capital Securities and the
Common Securities were invested by the Trust in the Old Junior Subordinated Debt
Securities. The Corporation has applied the net proceeds from the sale of the
Old Junior Subordinated Debt Securities to its general funds to be used for
general corporate purposes, including, from time to time, the repurchase of
shares of the common stock of the Corporation, in the open market or in
privately negotiated transactions, and the making of advances to its
subsidiaries. A portion of such net proceeds could be used in connection with
one or more future acquisitions. From time to time, the Corporation investigates
and holds discussions and negotiations in connection with possible transactions
with other banks. As of the date of this Prospectus, the Corporation has not
entered into any agreements or understandings with respect to any potential
acquisitions or any other material transactions of the type referred to above
and no discussions or negotiations are taking place. Pending any such
application by the Corporation, the net proceeds may be invested in short-term
interest-bearing securities, invested in equity securities, or used to reduce
short-term borrowings.
NATIONAL CITY CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) the original declaration of trust executed by the Corporation, as
Depositor, The Bank of New York (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein, which original declaration of trust was
amended and restated and executed on June 6, 1997, by the Corporation, as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Administrative Trustees named therein
(the "Declaration"), and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on May 29, 1997. The Trust exists for the exclusive
purposes of (i) issuing and selling the Trust Securities (ii) using the proceeds
from the sale of the Trust Securities to acquire the Old Junior Subordinated
Debt Securities and (iii) engaging in only those other activities necessary,
advisable or incidental thereto, which includes engaging in this Exchange Offer.
Accordingly, the Junior Subordinated Debt Securities are the sole assets of the
Trust, and payments under the Junior Subordinated Debt Securities will be the
sole revenues of the Trust. All of the Common Securities are owned by the
Corporation. The Common Securities rank pari passu, and payments will be made
thereon pro rata, with the Capital Securities, except that upon the occurrence
and continuance of an Event of Default (or an event that, with notice or the
passage of time, would become such an Event of Default) under the Declaration
resulting from a Debenture Event of Default, the rights of the Corporation as
holder of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption or otherwise are subordinated to the
rights of the holders of the Capital Securities. See "Description of Exchange
Capital Securities -- Subordination of Common Securities." The Corporation has
acquired Common Securities in an aggregate Liquidation Amount equal to 3% of the
total capital of the Trust. The Trust has a term of 40 years, but may terminate
earlier as provided in the Declaration. The Trust's business and affairs are
conducted by its trustees, each appointed by the Corporation as holder of the
Common Securities. The trustees for the Trust are The Bank of New York, as the
Property Trustee, The Bank of New York (Delaware), as the Delaware Trustee, and
three individual trustees as Administrative Trustees who are employees or
officers of or affiliated with the Corporation (collectively, the "Issuer
Trustees"). The Bank of New York, as Property Trustee, acts as sole indenture
trustee under the Declaration. The Bank of New York also acts as trustee under
the Old Guarantee and will act as trustee under the Exchange Guarantee. See
"Description of Exchange Junior Subordinated Debt Securities" and "Description
of Exchange Guarantee." The holder of the Common Securities, or the holders of a
majority in Liquidation Amount of the Capital Securities, if an Event of Default
under the Declaration resulting from a
20
<PAGE> 30
Debenture Event of Default has occurred and is continuing, will be entitled to
appoint, remove or replace the Property Trustee and/or the Delaware Trustee. In
no event will the holders of the Capital Securities have the right to vote to
appoint, remove or replace the Administrative Trustees; such voting rights are
vested exclusively in the holder of the Common Securities. The duties and
obligations of each Issuer Trustee are governed by the Declaration. Pursuant to
the expense provisions under the Indenture, the Corporation, as obligor on the
Junior Subordinated Debt Securities, will pay all fees and expenses related to
the Trust and the offering of the Capital Securities and will pay, directly or
indirectly, all ongoing costs, expenses and liabilities of the Trust. See
"Description of Exchange Capital Securities -- Expenses and Taxes." The address
and telephone number of the principal executive office of the Trust is 1900 East
Ninth Street, Cleveland, Ohio 44114-3484, and its telephone number is (216)
575-2000.
NATIONAL CITY CORPORATION
National City is a $50 billion diversified financial services company based
in Cleveland, Ohio. At December 31, 1996, National City was the third largest
bank holding company headquartered in the State of Ohio and approximately the
19th largest in the United States on the basis of total assets. National City
owns and operates 11 commercial banks and 885 banking offices in Ohio, Kentucky,
Indiana and Pennsylvania. National City's five largest subsidiary banks (and
only significant subsidiaries) are National City Bank of Pennsylvania, National
City Bank, National City Bank of Columbus, National City Bank of Indiana and
National City Bank of Kentucky. The banks and other subsidiaries and divisions
are engaged in a variety of financial services businesses. In addition to a
general commercial banking business, National City or its subsidiaries are
engaged in trust, mortgage banking, merchant banking, leasing, item processing,
venture capital, insurance and other financial-related businesses.
National City, a Delaware corporation, is a bank holding company registered
with the Federal Reserve under the Bank Holding Company Act of 1956, as amended.
National City's executive offices are located at 1900 East Ninth Street,
Cleveland, Ohio 44114-3484, and its telephone number is (216) 575-2000.
RECENT EVENTS
AUTHORIZED SHARE REPURCHASES
On April 14, 1997, the Board of Directors of the Corporation authorized the
repurchase of up to 10 million shares of common stock of the Corporation subject
to a purchase limit of $600 million. As of April 14, 1997, there were
approximately 220 million shares of common stock outstanding. The Corporation's
previous repurchase program, for five million shares, was authorized in December
1996 and was completed in early April 1997.
CONSOLIDATED RESULTS OF THREE MONTHS ENDED MARCH 31, 1997
The Corporation reported net income for the quarter ended March 31, 1997 of
$196.1 million, an increase of 11% over the $176.9 million earned in the first
quarter of 1996. Fully-diluted net income per common share was $.87 for the
first quarter of 1997, a 10% increase over $.79 earned in 1996. The growth in
net income was due to increased non-interest income, coupled with control of
operating expenses.
On a tax-equivalent basis, net interest income was $477.4 million in the
first quarter of 1997, down $3.4 million from $480.8 million in the first
quarter of 1996. The Corporation's net interest margin was 4.26%, down 0.09%
from the comparable period in 1996. Although average total loans were up 4.4%,
the lower net interest income and resulting contraction of the margin was due to
the sale of a $400 million private label credit card portfolio, overall tighter
spreads on loans, and the use of higher cost funding to support earning asset
growth.
Non-interest income increased 11.4% to $305.0 million for the quarter ended
March 31, 1997 from $273.8 million a year ago. The growth in non-interest income
was driven by gains in trust fees, card-related
21
<PAGE> 31
fees, service charges on deposits, and item processing revenue. Securities gains
also grew to $16.0 million in the first quarter of 1997 from $12.7 million in
the first quarter of 1996.
Non-interest expense was $451.3 million for the quarter ended March 31,
1997, down 1.4% from $457.8 million for the same period a year ago. The decrease
was primarily due to lower third party services and reduced general
administrative expenses.
The Corporation's efficiency ratio was 58.89% for the first quarter of
1997, an improvement from 61.71% a year ago.
The return on average equity and the return on average assets was 17.71%
and 1.61%, respectively, for the three months ended March 31, 1997. This
compares to returns of 17.39% and 1.46%, respectively, for the same period in
1996.
Total assets as of March 31, 1997 were $50.4 billion. Earning assets at
March 31, 1997 were $45.7 billion compared to earning assets of $44.1 billion at
March 31, 1996. The increase in earning assets results primarily from an
increase in loans during the period. Total loans at quarter-end were $36.4
billion, up from total loans of $34.8 billion a year ago. The most significant
growth occurred in the commercial and consumer loan portfolios. Deposits at the
end of the first quarter of 1997 totaled $35.1 billion compared to $34.7 billion
a year ago. The increase in deposits resulted from an increase in purchased
deposits used to support loan growth offset by a slight decline in core
deposits. At March 31, 1997, stockholders' equity was $4.3 billion, up from $4.1
billion at March 31, 1996. In connection with National City's authorized five
million share repurchase program, the Corporation repurchased 3.6 million shares
of its common stock in the first quarter. The remaining shares under this
authorization were repurchased in early April.
The allowance for loan losses was $704.3 million at March 31, 1997, or
1.94% of loans outstanding, compared to $707.4 million or 2.03% at March 31,
1996. The provision for loan losses was $35.9 million for the first quarter of
1997, up from $32.0 million for the same period a year ago. The provision for
loan losses exceeded loan net charge-offs for the period. Loan net charge-offs
as a percentage of average loans were 0.36% for the first quarter of 1997,
unchanged from the same period a year ago. Non-performing assets were $172.8
million at March 31, 1997, down $42.5 million from last year.
The following unaudited consolidated summary sets forth selected financial
data for the Corporation and its subsidiaries for the three month periods ended
March 31, 1997 and 1996. The summary should be read in conjunction with the
financial information incorporated by reference to other documents. See
"Incorporation of Certain Documents by Reference."
22
<PAGE> 32
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
---------------------
1997 1996
------- -------
(IN MILLIONS, EXCEPT
RATIOS
AND PER SHARE
AMOUNTS)
<S> <C> <C>
Summary of Operations:
Net interest income (tax-equivalent basis)......................... $ 477 $ 481
Provision for loan losses.......................................... 36 32
Noninterest income................................................. 305 274
Noninterest expense................................................ 451 458
Net income......................................................... 196 177
Net income applicable to common stock.............................. 196 173
Per Share Data:
Net income
Primary......................................................... $ .87 $ .80
Fully diluted................................................... .87 .79
Book value......................................................... 19.69 18.43
Period-End Balance Sheet Data:
Assets............................................................. $50,381 $48,776
Loans.............................................................. 36,383 34,775
Securities......................................................... 8,831 9,129
Earning assets..................................................... 45,650 44,138
Deposits........................................................... 35,066 34,708
Long-term debt..................................................... 3,334 3,375
Total equity....................................................... 4,344 4,094
Common shares...................................................... 221 213
Key Performance Ratios:
Return on average assets........................................... 1.61% 1.46%
Return on average total equity..................................... 17.71 17.39
Net interest margin................................................ 4.26 4.35
Efficiency......................................................... 58.89 61.71
Allowance for loan losses as a percentage of loans................. 1.94 2.03
Average equity to average assets................................... 9.06 8.38
Capital Ratios:
Tier 1 capital to risk-weighted assets............................. 9.70% 9.80%
Total risk based capital to risk-weighted assets................... 14.74 14.70
Leverage ratio..................................................... 7.86 7.48
</TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
THREE MONTHS ENDED ------------------------------------
MARCH 31, 1997 1996 1995 1994 1993 1992
------------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits.......... 3.19 3.05 2.55 3.50 4.08 3.26
Including interest on deposits.......... 1.67 1.61 1.47 1.69 1.69 1.41
</TABLE>
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<PAGE> 33
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION
The following unaudited consolidated summary sets forth selected financial
information for National City and its subsidiaries for each of the years in the
five-year period ending December 31, 1996. The following summary should be read
in conjunction with the financial information incorporated herein by reference
to other documents. See "Incorporation of Certain Documents by Reference."
NATIONAL CITY CORPORATION
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------
1996 1995 1994 1993 1992
------- ------- ------- ------- -------
(IN MILLIONS, EXCEPT RATIOS AND PER SHARE
AMOUNTS)
<S> <C> <C> <C> <C> <C>
Summary of Operations:
Interest income........................................ $ 3,655 $ 3,604 $ 3,003 $ 2,868 $ 3,041
Interest expense....................................... 1,713 1,776 1,237 1,125 1,381
------- ------- ------- ------- -------
Net interest income.................................... 1,942 1,828 1,766 1,743 1,660
Provision for loan losses.............................. 146 113 110 143 226
------- ------- ------- ------- -------
Net interest income after provision for loan losses.... 1,796 1,715 1,656 1,600 1,434
Noninterest income..................................... 1,273 1,069 1,006 953 925
Noninterest expense.................................... 2,011 1,939 1,803 1,761 1,787
------- ------- ------- ------- -------
Income before income taxes and cumulative effect of
accounting changes................................. 1,058 845 859 792 572
Income taxes........................................... 321 254 261 235 164
------- ------- ------- ------- -------
Net income before cumulative effect of accounting
changes.............................................. 737 591 598 557 408
Cumulative effect of accounting changes, net........... -- -- -- 60 --
------- ------- ------- ------- -------
Net income............................................. $ 737 $ 591 $ 598 $ 617 $ 408
======= ======= ======= ======= =======
Per Share Data:
Net income
Primary.............................................. $ 3.29 $ 2.68 $ 2.64 $ 2.62 $ 1.76
Fully diluted........................................ 3.27 2.64 2.60 2.59 1.76
Dividends paid per common share........................ 1.47 1.30 1.18 1.06 .94
Book value............................................. 19.86 18.33 15.35 15.94 13.42
Average shares outstanding
Primary.............................................. 222.67 215.10 220.82 228.79 221.28
Fully diluted........................................ 225.50 224.00 229.84 238.31 232.12
Period-End Balance Sheet Data:
Total assets........................................... $50,856 $50,542 $45,869 $45,165 $42,322
Loans.................................................. 35,830 34,466 30,701 28,602 25,952
Allowance for loan losses.............................. 706 706 707 685 623
Securities............................................. 8,997 10,345 9,637 11,323 10,898
Deposits............................................... 36,000 35,581 34,555 33,144 33,192
Long-term debt......................................... 2,994 3,025 2,012 1,261 1,010
Common equity.......................................... 4,432 3,878 3,272 3,597 3,008
Total equity........................................... 4,432 4,064 3,460 3,795 3,245
Performance Ratios:
Return on average assets............................... 1.51% 1.23% 1.35% 1.46% .99%
Return on average total equity......................... 17.55 15.78 16.81 17.95 13.18
Net interest margin.................................... 4.44 4.22 4.50 4.63 4.54%
Efficiency (excl. merger charges)...................... 61.88 66.57 64.70 65.19 69.96
Dividend payout........................................ 44.68 48.51 44.70 40.46 53.41
Asset Quality Ratios:
Nonperforming assets to loans and foreclosed
properties........................................... .47% .61% .74% 1.34% 2.27%
Net charge-offs to average loans....................... .42 .38 .34 .49 .75
Allowance to loans..................................... 1.97 2.05 2.30 2.40 2.40
Allowance to nonperforming loans....................... 493x 377x 398x 254x 167x
Liquidity and Capital Ratios:
Average loans to average deposits...................... 100.21% 94.40% 88.80% 83.77% 79.16%
Average equity to average assets....................... 8.61 7.80 8.05 8.11 7.47
Tangible equity to tangible assets..................... 7.81 7.09 6.66 7.54 6.87
Tier 1 capital to risk-weighted assets................. 9.84 9.14 9.12 9.36 9.69
Total risk-based capital to risk-weighted assets....... 14.79 13.47 12.45 12.27 12.13
Leverage............................................... 8.16 7.26 7.57 7.56 7.31
</TABLE>
24
<PAGE> 34
CAPITALIZATION
The following table sets forth (i) the consolidated capitalization of
National City at March 31, 1997 and (ii) as adjusted for the offering of the Old
Capital Securities and the issuance of the Old Subordinated Debt Securities.
This table is based on, and is qualified in its entirety by, the historical
consolidated financial statements of National City, including the related notes
thereto, which are included in documents incorporated by reference herein, and
should be read in conjunction therewith. For purposes of preparing the table
below, it was assumed that the net proceeds from the sale of the Old Junior
Subordinated Debt Securities were initially invested in short-term
interest-bearing securities.
<TABLE>
<CAPTION>
AS
ACTUAL ADJUSTED
---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-Term Debt...................................................... $3,334,163 $3,334,163
Corporation-Obligated Mandatorily Redeemable Capital Trust
Pass-through Securities of Subsidiary Trust....................... -- 499,890
Stockholders' Equity
Preferred stock, none issued...................................... -- --
Common stock, par value $4 per share, authorized 350,000,000
shares, outstanding 220,595,443 shares......................... 882,382 882,382
Capital surplus................................................... 633,025 633,025
Retained earnings................................................. 2,718,968 2,718,968
Unrealized gains on securities available for sale, net of income
taxes.......................................................... 110,031 110,031
---------- ----------
Total Stockholders' Equity........................................ 4,344,406 4,344,406
---------- ----------
Total Capitalization........................................... $7,678,569 $8,178,459
========== ==========
Consolidated Capital Ratios
Equity to assets.................................................. 8.62% 8.54%
Tier 1 capital to risk-weighted assets............................ 9.70 9.68
Total capital to risk-weighted assets............................. 14.74 14.71
</TABLE>
25
<PAGE> 35
ACCOUNTING TREATMENT
For financial reporting purposes, the financial statements of the Trust are
consolidated into the Corporation's consolidated financial statements. The
Capital Securities are considered long-term debt for financial reporting
purposes and Distributions payable on the Capital Securities will be recorded as
interest expense in the consolidated statements of income.
REGULATORY TREATMENT
As a registered bank holding company, the Corporation is required by the
Federal Reserve to maintain certain levels of capital for bank regulatory
purposes. The Corporation expects that, after the Rate Reset Date, the Capital
Securities will be treated as "Tier 1 Capital" of the Corporation for such
purposes.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the Corporation
and the Trust entered into the Registration Agreement with the Initial
Purchaser, pursuant to which the Corporation and the Trust agreed to file and to
use their best efforts to cause to be declared effective by the Commission a
Registration Statement with respect to the exchange of the Old Capital
Securities for capital securities with terms identical in all material respects
to the terms of the Old Capital Securities. A copy of the Registration Agreement
has been filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations of
the Corporation and the Trust under the Registration Agreement. The form and
terms of the Exchange Capital Securities are the same as the form and terms of
the Old Capital Securities, except that the Exchange Capital Securities (i) will
have been issued in a transaction registered under the Securities Act and
therefore will not be subject to certain restrictions on transfer applicable to
the Old Capital Securities and (ii) other than any possible increase in the
Applicable Rate pursuant to the Rate Reset Auction, will not provide for any
increase in the Distribution rate thereon. In that regard, the Registration
Agreement provides, among other things, that, if the Exchange Offer is not
consummated by December 3, 1997, except in limited circumstances, the
Distribution rate borne by the Old Capital Securities will increase by 0.25% per
annum commencing on December 4, 1997 until the Exchange Offer is consummated.
The aggregate amount of such additional Distributions payable pursuant to the
foregoing provisions will in no event exceed 0.50% per annum. Upon consummation
of the Exchange Offer, holders of Old Capital Securities will not be entitled to
any such increase in the Distribution rate thereon or any further registration
rights under the Registration Agreement, except under limited circumstances. See
"Risk Factors -- Consequences of a Failure to Exchange Old Capital Securities"
and "Description of Old Securities."
The Exchange Offer is not being made to, nor will the Trust or the
Corporation accept tenders for exchange from, holders of Old Capital Securities
in any jurisdiction in which the Exchange Offer or the acceptance thereof would
not be in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the Exchange Offer means any person in whose name the Old Capital Securities are
registered on the books of the Trust or any other person who has obtained a
properly completed bond power from the registered holder, or any person whose
Old Capital Securities are held of record by DTC who desires to deliver such Old
Capital Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Corporation will exchange as soon as
practicable after the date hereof the Old Guarantee for the Exchange Guarantee
and $500,000,000 aggregate principal amount of the Old Junior Subordinated Debt
Securities for a like aggregate principal amount of the Exchange Junior
Subordinated Debt Securities. The Exchange Guarantee and the Exchange Junior
Subordinated Debt Securities have been registered under the Securities Act.
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TERMS OF EXCHANGE
The Trust and the Corporation hereby offer, upon the terms and subject to
the conditions set forth in this Prospectus and in the accompanying Letter of
Transmittal, to exchange up to $500,000,000 aggregate Liquidation Amount of
Exchange Capital Securities for a like aggregate Liquidation Amount of Old
Capital Securities properly tendered on or prior to the Expiration Date and not
properly withdrawn in accordance with the procedures described below. The Trust
will issue, promptly after the Expiration Date, an aggregate Liquidation Amount
of up to $500,000,000 of Exchange Capital Securities in exchange for a like
Liquidation Amount of outstanding Old Capital Securities tendered and accepted
in connection with the Exchange Offer. Holders may tender their Old Capital
Securities in whole or in part in a Liquidation Amount of not less than $100,000
or any integral multiple of $100,000 in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation Amount
of Old Capital Securities being tendered. As of the date of this Prospectus,
$500,000,000 aggregate Liquidation Amount of Old Capital Securities is
outstanding.
Holders of Old Capital Securities do not have any appraisal or dissenters'
rights in connection with the Exchange Offer. Old Capital Securities that are
not tendered for or are tendered but not accepted in connection with the
Exchange Offer will remain outstanding and will be entitled to the benefits of
the Declaration, but will not be entitled to any further registration rights
under the Registration Agreement, except under limited circumstances. See "Risk
Factors -- Consequences of a Failure to Exchange Old Capital Securities" and
"Description of Old Securities."
If any tendered Old Capital Securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Old Capital Securities
will be returned, without expense, to the tendering holder thereof promptly
after the Expiration Date.
Holders who tender Old Capital Securities in connection with the Exchange
Offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the Letter of Transmittal, transfer taxes with respect to
the exchange of Old Capital Securities in connection with the Exchange Offer.
The Corporation will pay all charges and expenses, other than certain applicable
taxes described below, in connection with the Exchange Offer. See "-- Fees and
Expenses."
NEITHER THE BOARD OF DIRECTORS OF THE CORPORATION NOR ANY TRUSTEE OF THE
TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO
WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN
AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES
MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE AMOUNT OF OLD CAPITAL SECURITIES TO TENDER AFTER
READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH THEIR
ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on
, 1997, unless the Exchange Offer is extended by the Corporation and
the Trust (in which case the term "Expiration Date" shall mean the latest date
and time to which the Exchange Offer is extended).
The Corporation and the Trust expressly reserve the right in their sole
discretion, subject to applicable law, at any time and from time to time, (i) to
delay the acceptance of the Old Capital Securities for exchange, (ii) to
terminate the Exchange Offer (whether or not any Old Capital Securities have
theretofore been accepted for exchange) if the Corporation and the Trust
determine, in their sole discretion, that any of the events or conditions
referred to under "-- Conditions to the Exchange Offer" have occurred or exist,
(iii) to extend the Expiration Date of the Exchange Offer and retain all Old
Capital Securities tendered pursuant to
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<PAGE> 37
the Exchange Offer, subject, however, to the right of holders of Old Capital
Securities to withdraw their tendered Old Capital Securities as described under
" -- Withdrawal Rights," and (iv) to waive any condition or otherwise amend the
terms of the Exchange Offer in any respect. If the Exchange Offer is amended in
a manner determined by the Corporation and the Trust to constitute a material
change, or if the Corporation and the Trust waive a material condition of the
Exchange Offer, the Corporation and the Trust will promptly disclose such
amendment by means of an amended or supplemented Prospectus that will be
distributed to the registered holders of the Old Capital Securities, and the
Corporation and the Trust will extend the Exchange Offer to the extent required
by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent and by
making a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the next
Business Day after the previously scheduled Expiration Date. Without limiting
the manner in which the Corporation and the Trust may choose to make any public
announcement and subject to applicable law, the Corporation and the Trust shall
have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to an appropriate news
agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Trust will exchange, and will issue to the Exchange Agent, Exchange Capital
Securities for Old Capital Securities validly tendered and not withdrawn
(pursuant to the withdrawal rights described under "-- Withdrawal Rights")
promptly after the Expiration Date.
In all cases, delivery of Exchange Capital Securities in exchange for Old
Capital Securities tendered and accepted for exchange pursuant to the Exchange
Offer will be made only after timely receipt by the Exchange Agent of (i) Old
Capital Securities or a book-entry confirmation of a book-entry transfer of Old
Capital Securities into the Exchange Agent's account at DTC, including an
Agent's Message if the tendering holder has not delivered a Letter of
Transmittal, (ii) the Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees or, in the
case of a book-entry transfer, an Agent's Message in lieu of the Letter of
Transmittal and (iii) any other documents required by the Letter of Transmittal.
The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
participant, which acknowledgment states that such participant has received and
agrees to be bound by the Letter of Transmittal and that the Trust and the
Corporation may enforce such Letter of Transmittal against such participant.
Subject to the terms and conditions of the Exchange Offer, the Corporation
and the Trust will be deemed to have accepted for exchange, and thereby
exchanged, Old Capital Securities validly tendered and not withdrawn as, if and
when the Trust gives oral or written notice to the Exchange Agent of the
Corporation's and the Trust's acceptance of such Old Capital Securities for
exchange pursuant to the Exchange Offer. The Exchange Agent will act as agent
for the Corporation and the Trust for the purpose of receiving tenders of Old
Capital Securities, Letters of Transmittal and related documents, and as agent
for tendering holders for the purpose of receiving Old Capital Securities,
Letters of Transmittal and related documents and transmitting Exchange Capital
Securities to validly tendering holders. Such exchange will be made promptly
after the Expiration Date. If for any reason whatsoever, acceptance for exchange
or the exchange of any Old Capital Securities tendered pursuant to the Exchange
Offer is delayed (whether before or after the Corporation's and the Trust's
acceptance for exchange of Old Capital Securities) or the Corporation and the
Trust extend the Exchange Offer or are unable to accept for exchange or exchange
Old Capital Securities tendered pursuant to the Exchange Offer, then, without
prejudice to the Corporation's and the Trust's rights set forth herein, the
Exchange Agent may, nevertheless, on behalf of the Corporation and the Trust and
subject to Rule 14e-1(c) under the Exchange Act, retain tendered Old Capital
Securities and such Old Capital Securities may not be
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<PAGE> 38
withdrawn except to the extent tendering holders are entitled to withdrawal
rights as described under "-- Withdrawal Rights."
Pursuant to the Letter of Transmittal or Agent's Message in lieu thereof, a
holder of Old Capital Securities will warrant and agree in the Letter of
Transmittal or Agent's Message, as the case may be, that it has full power and
authority to tender, exchange, sell, assign and transfer Old Capital Securities,
that the Trust will acquire good, marketable and unencumbered title to the
tendered Old Capital Securities, free and clear of all liens, restrictions,
charges and encumbrances, and that the Old Capital Securities tendered for
exchange are not subject to any adverse claims or proxies. The holder also will
warrant and agree that it will, upon request, execute and deliver any additional
documents deemed by the Corporation, the Trust or the Exchange Agent to be
necessary or desirable to complete the exchange, sale, assignment and transfer
of the Old Capital Securities tendered pursuant to the Exchange Offer.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for Old Capital
Securities to be validly tendered pursuant to the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees, or, in the case of a book-entry tender, an
Agent's Message in lieu of the Letter of Transmittal, and any other required
documents, must be received by the Exchange Agent at its address set forth under
" -- Exchange Agent," and either (i) tendered Old Capital Securities must be
received by the Exchange Agent, (ii) such Old Capital Securities must be
tendered pursuant to the procedures for book-entry transfer set forth below and
a book-entry confirmation, including an Agent's Message if the tendering holder
has not delivered a Letter of Transmittal, must be received by the Exchange
Agent, in each case on or prior to the Expiration Date, or (iii) the guaranteed
delivery procedures set forth below must be complied with.
If a tendering holder is tendering less than all of its Old Capital
Securities, the tendering holder should fill in the amount of Old Capital
Securities being tendered in the appropriate box on the Letter of Transmittal.
If fewer than all of the Old Capital Securities of a holder are tendered for
exchange, the untendered Liquidation Amount of the holder's remaining Old
Capital Securities must be $100,000 or any integral multiple of $100,000 in
excess thereof. The entire amount of Old Capital Securities delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER,
AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE
AGENT. DELIVERY IS RECOMMENDED BY OVERNIGHT DELIVERY OR, IF DELIVERY IS BY MAIL,
REGISTERED MAIL, RETURN RECEIPT REQUESTED, PROPERLY INSURED IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book Entry Transfer. The Exchange Agent will establish an account with
respect to the Old Capital Securities at DTC for purposes of the Exchange Offer
within two Business Days after the date of this Prospectus. Any financial
institution that is a participant in DTC's book-entry transfer facility system
may make a book-entry delivery of the Old Capital Securities by causing DTC to
transfer such Old Capital Securities into the Exchange Agent's account at DTC in
accordance with DTC's Authorized Tender Offer Program ("ATOP") procedures for
transfers. Such holder of Old Capital Securities using ATOP should transmit its
acceptance to DTC on or prior to the Expiration Date (or comply with the
guaranteed delivery procedures set forth below). DTC will verify such
acceptance, execute a book-entry transfer of the tendered Old Capital Securities
into the Exchange Agent's account at DTC and then send to the Exchange Agent
confirmation of such book-entry transfer, including an Agent's Message
confirming that DTC has received an express acknowledgment from such holder that
such holder has received and agrees to be bound by the Letter of Transmittal and
that the Corporation and the Trust may enforce the Letter of Transmittal against
such holder.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
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Signature Guarantees. Certificates for the Old Capital Securities need not
be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (i) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the certificate
or (ii) such registered holder completes the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the Letter of Transmittal.
In the case of (i) or (ii) above, such certificates for Old Capital Securities
must be duly endorsed or accompanied by a properly executed bond power, with the
endorsement or signature on the bond power and on the Letter of Transmittal
guaranteed by a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as an "eligible guarantor institution," including (as such terms
are defined therein): (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association (an "Eligible Institution"), unless surrendered
on behalf of such Eligible Institution. See Instruction 1 to the Letter of
Transmittal.
Guaranteed Delivery. If a holder desires to tender Old Capital Securities
pursuant to the Exchange Offer and the certificates for such Old Capital
Securities are not immediately available or time will not permit all required
documents to reach the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
Old Capital Securities may nevertheless be tendered, provided that all of the
following guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form accompanying the Letter of
Transmittal, is received by the Exchange Agent, as provided
below, on or prior to the Expiration Date; and
(iii) the certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer,
together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof or Agent's Message in lieu
thereof), with any required signature guarantees and any other
documents required by the Letter of Transmittal, are received by
the Exchange Agent within three New York Stock Exchange trading
days after the date of execution of such Notice of Guaranteed
Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of Exchange
Capital Securities in exchange for Old Capital Securities tendered and accepted
for exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of Old Capital Securities, or of a
book-entry confirmation with respect to such Old Capital Securities, and a
properly completed and duly executed Letter of Transmittal (or facsimile thereof
or Agent's Message in lieu thereof), together with any required signature
guarantees and any other documents required by the Letter of Transmittal.
Accordingly, the delivery of Exchange Capital Securities might be made to all
tendering holders at the same time, and will depend upon when Old Capital
Securities, book-entry confirmations with respect to Old Capital Securities and
other required documents are received by the Exchange Agent.
The Corporation's and the Trust's acceptance for exchange of Old Capital
Securities tendered pursuant to any of the procedures described above will
constitute a binding agreement among the tendering holder, the Corporation and
the Trust upon the terms and subject to the conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Old Capital Securities will be determined by the Corporation and
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. The Corporation and the Trust reserve the absolute
right, in their sole discretion, to reject any and all tenders determined by
them not to be in proper form or the acceptance of which, or exchange for, may,
in the view of counsel to the Corporation or the Trust, be unlawful. The
Corporation and the Trust also reserve the absolute right, subject to applicable
law, to waive any of the conditions of the Exchange Offer as set forth
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under "-- Conditions to the Exchange Offer" or any condition or irregularity in
any tender of Old Capital Securities of any particular holder whether or not
similar conditions or irregularities are waived in the case of other holders.
The Corporation's and the Trust's interpretation of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding. No tender of Old Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. Neither the Corporation,
the Trust, any affiliates or assigns of the Corporation or the Trust, the
Exchange Agent nor any other person shall be under any duty to give any
notification of any irregularities in tenders or incur any liability for failure
to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney or
any other document required by the Letter of Transmittal is signed by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, such person
should so indicate when signing, and unless waived by the Trust or the
Corporation, proper evidence satisfactory to the Corporation and the Trust, in
their sole discretion, of such person's authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or registered
in the name of a broker, dealer, commercial bank, trust company or other nominee
or custodian is urged to contact such entity promptly if such beneficial holder
wishes to participate in the Exchange Offer.
RESALES OF EXCHANGE CAPITAL SECURITIES
The Corporation and the Trust are making the Exchange Offer of the Exchange
Capital Securities in reliance on the position of the staff of the Division of
Corporation Finance of the Commission as set forth in certain interpretive
letters addressed to third parties in other transactions. However, neither the
Corporation nor the Trust has sought its own interpretive letter, and there can
be no assurance that the staff of the Division of Corporation Finance of the
Commission would make a similar determination with respect to the Exchange Offer
as it has in such interpretive letters to third parties. Based on these
interpretations by the staff of the Division of Corporation Finance of the
Commission, and subject to the two immediately following sentences, the
Corporation and the Trust believe that Exchange Capital Securities issued
pursuant to this Exchange Offer in exchange for Old Capital Securities may be
offered for resale, resold and otherwise transferred by a holder thereof (other
than a holder who is an Affiliate or a broker-dealer) without further compliance
with the registration and prospectus delivery requirements of the Securities
Act, provided that such Exchange Capital Securities are acquired in the ordinary
course of such holder's business and that such holder is not participating, and
has no arrangement or understanding with any person to participate, in a
distribution (within the meaning of the Securities Act) of such Exchange Capital
Securities. However, any holder of Old Capital Securities who is an Affiliate or
who intends to participate in the Exchange Offer for the purpose of distributing
Exchange Capital Securities, or any broker-dealer who purchased Old Capital
Securities from the Trust to resell pursuant to Rule 144A or any other available
exemption under the Securities Act, (i) will not be able to rely on the
interpretations of the staff of the Division of Corporation Finance of the
Commission set forth in the above- mentioned interpretive letters, (ii) will not
be entitled to tender such Old Capital Securities in the Exchange Offer and
(iii) must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any sale or other transfer of such Old
Capital Securities unless such sale or transfer is made pursuant to an exemption
from such requirements. In addition, as described below, Participating
Broker-Dealers must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of Exchange Capital Securities.
Each holder of Old Capital Securities who wishes to exchange Old Capital
Securities for Exchange Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an Affiliate, (ii) any Exchange Capital
Securities to be received by it are being acquired in the ordinary course of its
business, (iii) it has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of such
Exchange Capital Securities and (iv) if such holder is not a broker-dealer, such
holder is not engaged in, and does not intend to engage in, a distribution
(within the meaning of the Securities Act) of such Exchange Capital Securities.
The Letter of Transmittal contains the foregoing
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representations. In addition, the Corporation and the Trust may require such
holder, as a condition to such holder's eligibility to participate in the
Exchange Offer, to furnish to the Corporation and the Trust (or an agent
thereof) in writing information as to the number of "beneficial owners" (within
the meaning of Rule 13d-3 under the Exchange Act) on behalf of whom such holder
holds the Old Capital Securities to be exchanged in the Exchange Offer. Each
Participating Broker-Dealer must acknowledge that it acquired the Old Capital
Securities for its own account as the result of market-making activities or
other trading activities and must agree that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Capital Securities. See "Plan of Distribution." The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Participating Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. Based on the position
taken by the staff of the Division of Corporation Finance of the Commission in
the interpretive letters referred to above, the Corporation and the Trust
believe that Participating Broker-Dealers may fulfill their prospectus delivery
requirements with respect to the Exchange Capital Securities received upon
exchange of such Old Capital Securities (other than Old Capital Securities which
represent an unsold allotment from the original sale of the Old Capital
Securities) with a prospectus meeting the requirements of the Securities Act,
which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such Exchange Capital Securities. Accordingly, this Prospectus, as it may be
amended or supplemented from time to time, may be used by a Participating
Broker-Dealer during the period referred to below in connection with resales of
Exchange Capital Securities received in exchange for Old Capital Securities
where such Old Capital Securities were acquired by such Participating
Broker-Dealer for its own account as a result of market-making or other trading
activities. Subject to certain provisions set forth in the Registration
Agreement, the Corporation and the Trust have agreed that this Prospectus, as it
may be amended or supplemented from time to time, may be used by a Participating
Broker-Dealer in connection with resales of such Exchange Capital Securities for
a period ending on the close of business on the first anniversary following the
Expiration Date or, if earlier, when all such Exchange Capital Securities have
been disposed of by such Participating Broker-Dealer. See "Plan of
Distribution." Any person, including any Participating Broker-Dealer, who is an
Affiliate may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders Old Capital
Securities pursuant to the Exchange Offer will be deemed to have agreed, by
execution of the Letter of Transmittal or delivery of an Agent's Message in lieu
thereof, that, upon receipt of notice from the Corporation or the Trust of the
occurrence of any event or the discovery of any fact which makes any statement
contained or incorporated by reference in this Prospectus untrue in any material
respect or which causes this Prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
herein, in the light of the circumstances under which they were made, not
misleading, or of the occurrence of certain other events specified in the
Registration Agreement, such Participating Broker-Dealer will suspend the sale
of Exchange Capital Securities pursuant to this Prospectus until the Corporation
or the Trust has amended or supplemented this Prospectus to correct such
misstatement or omission and has furnished copies of the amended or supplemented
Prospectus to such Participating Broker-Dealer, or the Corporation or the Trust
has given notice that the sale of the Exchange Capital Securities may be
resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at its address set forth under "-- Exchange Agent" on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Old Capital Securities to be withdrawn, the
aggregate principal amount of Old Capital Securities to be withdrawn, and (if
certificates for such Old Capital Securities have been tendered) the name of the
registered holder of the Old Capital Securities as set forth on the Old Capital
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Securities, if different from that of the person who tendered such Old Capital
Securities. If Old Capital Securities have been delivered or otherwise
identified to the Exchange Agent, then prior to the physical release of such Old
Capital Securities, the tendering holder must submit the certificate numbers
shown on the particular Old Capital Securities to be withdrawn and the signature
on the notice of withdrawal must be guaranteed by an Eligible Institution,
except in the case of Old Capital Securities tendered for the account of an
Eligible Institution. If Old Capital Securities have been tendered pursuant to
the procedures for book-entry transfer set forth in "-- Procedures for Tendering
Old Capital Securities," the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal of Old Capital
Securities, in which case a notice of withdrawal will be effective if delivered
to the Exchange Agent by written, telegraphic, telex or facsimile transmission
on or prior to the Expiration Date. Withdrawals of tenders of Old Capital
Securities may not be rescinded. Old Capital Securities properly withdrawn will
not be deemed validly tendered for purposes of the Exchange Offer, but may be
retendered at any subsequent time on or prior to the Expiration Date by
following any of the procedures described above under "-- Procedures for
Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Corporation and
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Neither the Corporation, the Trust, any Affiliates or
assigns of the Corporation or the Trust, the Exchange Agent nor any other person
shall be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Capital Securities that have been tendered but which are
withdrawn will be returned to the holder thereof without cost to such holder
promptly after withdrawal.
DISTRIBUTIONS ON THE EXCHANGE CAPITAL SECURITIES
Each Exchange Capital Security will pay cumulative Distributions from the
most recent Distribution Date on the Old Capital Securities, or if no
Distributions have been paid on such Old Capital Securities, from June 6, 1997.
Holders of Old Capital Securities whose Old Capital Securities are accepted for
exchange will not receive accumulated Distributions on such Old Capital
Securities for any period from and after the last Distribution Date with respect
to such Old Capital Securities prior to the original issue date of the Exchange
Capital Securities or, if no such Distributions have been paid, will not receive
any accumulated Distributions on such Old Capital Securities, and will be deemed
to have waived the right to receive any Distributions on such Old Capital
Securities accumulated from and after such Distribution Date or, if no such
Distributions have been paid, from and after June 6, 1997.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Corporation and the Trust will not be
required to accept for exchange, or to exchange, any Old Capital Securities for
any Exchange Capital Securities, and, as described below, may terminate the
Exchange Offer (whether or not any Old Capital Securities have theretofore been
accepted for exchange) or may waive any conditions to or amend the Exchange
Offer, if any of the following conditions has occurred or exists:
(i) there shall occur a change in the current interpretation by the
staff of the Division of Corporation Finance of the Commission
(including oral interpretations) which permits the Exchange
Capital Securities issued pursuant to the Exchange Offer in
exchange for Old Capital Securities to be offered for resale,
resold and otherwise transferred by holders thereof (other than
broker-dealers and any such holder which is an Affiliate)
without compliance with the registration and prospectus delivery
provisions in the ordinary course of such holders' business and
such holders have no arrangement or understanding with any
person to participate in the distribution of such Exchange
Capital Securities;
(ii) any action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency
or body with respect to the Exchange Offer which, in the
Corporation's and the Trust's judgment, would reasonably be
expected to impair the ability of the Trust or the Corporation
to proceed with the Exchange Offer;
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(iii) any law, statute, rule or regulation shall have been adopted or
enacted which, in the Corporation's and the Trust's judgment,
would reasonably be expected to impair the ability of the Trust
or the Corporation to proceed with the Exchange Offer;
(iv) a banking moratorium shall have been declared by United States
federal or New York state authorities which, in the
Corporation's and the Trust's judgment, would reasonably be
expected to impair the ability of the Trust or the Corporation
to proceed with the Exchange Offer;
(v) trading on the New York Stock Exchange or generally in the
United States over-the-counter market shall have been suspended
by order of the Commission or any other governmental authority
which, in the Corporation's or the Trust's judgment, would
reasonably be expected to impair the ability of the Trust or the
Corporation to proceed with the Exchange Offer;
(vi) a stop order shall have been issued by the Commission or any
state securities authority suspending the effectiveness of the
Registration Statement or proceedings shall have been initiated
or, to the knowledge the Corporation or the Trust, threatened
for that purpose or any governmental approval has not been
obtained, which approval the Corporation and the Trust shall, in
their sole discretion, deem necessary for the consummation of
the Exchange Offer as contemplated hereby;
(vii) any change, or any development involving a prospective change,
in the business or financial affairs of the Trust or the
Corporation or any of its subsidiaries has occurred which, in
the judgment of the Corporation and the Trust, might materially
impair the ability of the Corporation or the Trust to proceed
with the Exchange Offer;
(viii) there shall occur any change in law or in currently prevailing
interpretations thereof by the staff of the Division of
Corporation Finance of the Commission (including oral
interpretations) which causes the Corporation and the Trust to
determine upon advice of their outside counsel that they are
not permitted to effect the Exchange Offer as contemplated by
this Prospectus; or
(ix) the Corporation shall have received an opinion of a nationally
recognized independent tax counsel to the Corporation
experienced in such matters to the effect that as a result of
the consummation of the Exchange Offer, there is more than an
insubstantial risk that (A) if the Junior Subordinated Debt
Securities are held by or on behalf of the Trust, (x) the Trust
is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to
interest accrued or received on the Junior Subordinated Debt
Securities or subject to more than a de minimis amount of other
taxes, duties or other governmental charges as determined by
such counsel or (y) any portion of interest payable by the
Corporation to the Trust on the Junior Subordinated Debt
Securities is not, or within 90 days of the date of such opinion
will not be, deductible by the Corporation in whole or in part
for United States federal income tax purposes or (B) with
respect to Junior Subordinated Debt Securities which are no
longer held by or on behalf of the Trust, any portion of
interest payable by the Corporation on the Junior Subordinated
Debt Securities is not, or within 90 days of the date of such
opinion will not be, deductible by the Corporation in whole or
in part for United States federal income tax purposes.
If the Corporation and the Trust determine in their sole discretion that
any of the foregoing events or conditions has occurred or exists, the
Corporation and the Trust may, subject to applicable law, terminate the Exchange
Offer (whether or not any Old Capital Securities have theretofore been accepted
for exchange) or may waive any such condition or otherwise amend the terms of
the Exchange Offer in any respect. If such waiver or amendment constitutes a
material change to the Exchange Offer, the Corporation and the Trust will
promptly disclose such waiver by means of an amended or supplemented Prospectus
that will be distributed to the registered holders of the Old Capital
Securities, and the Corporation and the Trust will extend the Exchange Offer to
the extent required by Rule 14e-1 under the Exchange Act.
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EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the Exchange
Offer. Delivery of the Letters of Transmittal and any other required documents,
questions, requests for assistance, and requests for additional copies of this
Prospectus or of the Letter of Transmittal, all whether by registered or
certified mail, by hand or by overnight courier, should be directed to the
Exchange Agent as follows:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Reorganization Section
Telephone: (212) 815-2742
Facsimile: (212) 815-6339
Delivery to other than the above address or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
The Corporation has agreed to pay the Exchange Agent reasonable and
customary fees for the Exchange Agent's services and will reimburse it for its
reasonable out-of-pocket expenses in connection therewith. The Corporation will
also pay brokerage houses and other custodians, nominees and fiduciaries the
reasonable out-of-pocket expenses incurred by them in forwarding copies of this
Prospectus and related documents to the beneficial owners of Old Capital
Securities, and in handling or tendering for their customers.
Holders who tender their Old Capital Securities for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however,
Exchange Capital Securities are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the Old Capital
Securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of Old Capital Securities in connection with the Exchange Offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Neither the Corporation nor the Trust will make any payment to brokers,
dealers or others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF THE RATE RESET AUCTION
RATE RESET AUCTION PROCEDURES
Holders of Capital Securities are entitled to receive Distributions, in
each case arising from the payment of interest on the Junior Subordinated Debt
Securities accruing from the date of original issuance of the Capital Securities
and payable semi-annually in arrears on the 1st day of June and December of each
year, commencing December 1, 1997, at the Applicable Rate applied to the
Liquidation Amount of $1,000 per Capital Security. Prior to the Rate Reset Date,
the Applicable Rate will be equal to 6.75% per annum. The Indenture described
under "Description of Exchange Junior Subordinated Debt Securities" provides
that the Applicable Rate on and after the Rate Reset Date will be equal to the
rate per annum that the Auction Agent advises has resulted on the Rate Reset
Pricing Date from the implementation of auction procedures (the "Auction
Procedures") pursuant to which persons determine to hold or offer to sell or,
based on interest rates offered to them, offer to purchase Capital Securities.
The implementation of the Auction Procedures is hereinafter referred to as the
"Rate Reset Auction." The Corporation has entered into an agreement (the
"Remarketing Agreement") with the Initial Purchaser (the "Remarketing Agent")
pursuant to which the Remarketing Agent has agreed to use its best efforts to
solicit Hold Orders from Existing Holders and Bids from Existing Holders and
Potential Holders so that there are Sufficient Clearing Bids in the Rate Reset
Auction. See "-- Remarketing Agreement." The Corporation has also entered into
an agreement (the "Auction Agency Agreement") with The Bank of New York
(together with any successor, the "Auction
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<PAGE> 45
Agent") which provides, among other things, that the Auction Agent will follow
the Auction Procedures for the purposes of determining the Applicable Rate for
the Capital Securities. See "-- Auction Agency Agreement."
The Rate Reset Auction will be held on the third Business Day preceding the
Rate Reset Date (the "Rate Reset Pricing Date"). The Applicable Rate resulting
from the Rate Reset Auction will become effective on the Rate Reset Date.
Orders by Existing Holders and Potential Holders
Prior to 1:00 p.m. (New York City time) on the Business Day five Business
Days prior to the Rate Reset Date (the "Submission Deadline") each Existing
Holder of Capital Securities may submit to the Remarketing Agent and in
accordance with the procedures set forth under "-- Submission of Orders to
Auction Agent," one or more of the following Orders:
(i) Hold Order -- indicating the stated Liquidation Amount of
outstanding Capital Securities, if any, that such Existing Holder desires
to continue to hold without regard to the Applicable Rate on and after the
Rate Reset Date;
(ii) Bid -- indicating the stated Liquidation Amount of outstanding
Capital Securities, if any, that such Existing Holder desires to continue
to hold if the Applicable Rate on and after the Rate Reset Date is not less
than the rate per annum then specified by such Existing Holder; and/or
(iii) Sell Order -- indicating the stated Liquidation Amount of
Capital Securities, if any, that such Existing Holder offers to sell
without regard to the Applicable Rate on and after the Rate Reset Date.
Potential Holders of Capital Securities may submit Bids to the Remarketing
Agent, in which they will offer to purchase Capital Securities if the Applicable
Rate on and after the Rate Reset Date is not less than the rate per annum
specified in such Bid.
The communication of the foregoing information is hereinafter referred to
as an "Order" and collectively as "Orders." An Existing Holder or a Potential
Holder placing an Order is hereinafter referred to as a "Bidder" and
collectively as "Bidders." If an Order or Orders covering the entire outstanding
stated Liquidation Amount of Capital Securities held by any Existing Holder is
not submitted to the Remarketing Agent prior to the Submission Deadline, the
Remarketing Agent shall deem a Sell Order to have been submitted on behalf of
such Existing Holder covering the stated Liquidation Amount of Capital
Securities held by such Existing Holder and not subject to Orders submitted to
the Remarketing Agent.
An Order may be submitted only in a stated Liquidation Amount of $100,000
or an integral multiple of $100,000 in excess thereof.
An Existing Holder may submit different types of Orders to the Remarketing
Agent with respect to Capital Securities then held by such Existing Holder. (An
Existing Holder that offers to purchase additional Capital Securities is, for
purposes of such offer, treated as a Potential Holder as described below.) For
information concerning the priority given to different types of Orders placed by
Existing Holders, see "-- Submission of Orders to Auction Agent."
Any Bid specifying a rate higher than the Treasury Rate on the Rate Reset
Pricing Date plus 5.0% per annum (the "Maximum Applicable Rate") will (i) be
treated as a Sell Order if submitted by an Existing Holder and (ii) not be
accepted if submitted on behalf of a Potential Holder. Accordingly, the Auction
Procedures establish the Maximum Applicable Rate as the maximum rate per annum
that can result from the Rate Reset Auction. See "-- Determination of Sufficient
Clearing Bids, Winning Bid Rate and Applicable Rate" and "-- Acceptance and
Rejection of Submitted Bids and Submitted Sell Orders and Allocation of Capital
Securities."
Each Existing Holder and each Potential Holder, will be required to submit
any Orders to the Remarketing Agent in writing on a form provided by the
Corporation in which the holder will agree that (i) a Sell Order submitted by an
Existing Holder constitutes an irrevocable offer to sell the stated Liquidation
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Amount of Capital Securities subject thereto, (ii) a Bid submitted by an
Existing Holder constitutes an irrevocable offer to sell the stated Liquidation
Amount of Capital Securities subject thereto if the rate specified in such Bid
is greater than the Applicable Rate after the Rate Reset Date and (iii) a Bid
submitted by a Potential Holder constitutes an irrevocable offer to purchase the
stated Liquidation Amount of Capital Securities specified in such Bid if the
rate specified in the Bid is less than the Applicable Rate after the Rate Reset
Date. The stated Liquidation Amount of Capital Securities purchased by a Bidder
may be subject to proration procedures. See "-- Acceptance and Rejection of
Submitted Bids and Submitted Sell Orders and Allocation of Capital Securities."
Each purchase or sale of Capital Securities shall be made for settlement on the
Rate Reset Date at a price equal to 100% of the principal amount thereof. See
"-- Notification of Results; Settlement."
Neither the Corporation nor any affiliate thereof may submit an Order in
the Rate Reset Auction.
Submission of Orders to Auction Agent
Prior to the Submission Deadline each Existing Holder and Potential Holder
will submit to the Remarketing Agent in writing all Orders for the Rate Reset
Auction. The Remarketing Agent will provide these Orders to the Auction Agent on
the Business Day following the Submission Deadline prior to 10:00 a.m. (New York
City time).
If one or more Orders covering, in the aggregate, more than the stated
Liquidation Amount of outstanding Capital Securities held by any Existing Holder
are submitted to the Auction Agent on behalf of such Existing Holder, such
Orders will be considered valid in the following order of priority:
(i) All Hold Orders shall be considered valid, but only up to and
including the stated Liquidation Amount of outstanding Capital Securities
held by such Existing Holder;
(ii) (A) any Bid shall be considered valid up to and including the
excess of the stated Liquidation Amount of outstanding Capital Securities
held by such Existing Holder over the aggregate stated Liquidation Amount
of Capital Securities subject to any Hold Orders referred to in clause (i)
above;
(B) subject to subclause (A), if more than one Bid with the same
rate is submitted on behalf of such Existing Holder and the
aggregate stated Liquidation Amount of outstanding Capital
Securities subject to such Bids is greater than such excess, such
Bids shall be considered valid up to and including the amount of
such excess;
(C) subject to subclause (A), if more than one Bid with different
rates is submitted on behalf of such Existing Holder, such Bids
shall be considered valid in the ascending order of their respective
rates up to the amount of such excess; and
(D) in any such event, the aggregate stated Liquidation Amount of
outstanding Capital Securities, if any, subject to Bids not valid
under this clause (ii) shall be treated as the subject of a Bid by a
Potential Holder; and
(iii) All Sell Orders shall be considered valid but only up to and
including the excess of the stated Liquidation Amount of outstanding
Capital Securities held by such Existing Holder over the aggregate stated
Liquidation Amount of Capital Securities subject to Hold Orders referred to
in clause (i) above and valid Bids referred to in clause (ii) above.
If more than one Bid is submitted by any Potential Holder, each Bid
submitted shall be a separate Bid with the rate and stated Liquidation Amount of
Capital Securities specified.
If any rate specified in any Bid contains more than three figures to the
right of the decimal point, the Auction Agent will round such rate up to the
next highest one-thousandth (.001 ) of 1%. Any Order covering an aggregate
stated Liquidation Amount of Capital Securities not equal to $100,000 or an
integral multiple of $100,000 in excess thereof will be rejected.
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Determination of Sufficient Clearing Bids, Winning Bid Rate and Applicable
Rate
Upon receipt of the Orders from the Remarketing Agent, the Auction Agent
will assemble all Orders submitted or deemed submitted to it on behalf of
Existing Holders and Potential Holders (each such Hold Order, Bid or Sell Order
as submitted or deemed submitted being hereinafter referred to as a "Submitted
Hold Order," a "Submitted Bid" or a "Submitted Sell Order," as the case may be,
or as a "Submitted Order" and collectively as "Submitted Hold Orders,"
"Submitted Bids" or "Submitted Sell Orders," as the case may be, or as
"Submitted Orders") and will determine the excess of the stated Liquidation
Amount of outstanding Capital Securities over the stated Liquidation Amount of
outstanding Capital Securities subject to Submitted Hold Orders (such excess,
the "Available Capital Securities") and whether Sufficient Clearing Bids have
been made in the Rate Reset Auction. Sufficient Clearing Bids will have been
made if the stated Liquidation Amount of outstanding Capital Securities that is
the subject of Submitted Bids by Potential Holders with rates not higher than
the Maximum Applicable Rate equals or exceeds the stated Liquidation Amount of
outstanding Capital Securities that is the subject of Submitted Sell Orders
(including the stated Liquidation Amount of Capital Securities as to which Sell
Orders are deemed to have been submitted and the stated Liquidation Amount of
Capital Securities subject to Bids by Existing Holders specifying rates higher
than the Maximum Applicable Rate).
If Sufficient Clearing Bids have been made, the Auction Agent will
determine the lowest rate per annum specified in the Submitted Bids (the
"Winning Bid Rate") which, taking into account the rates in the Submitted Bids
of Existing Holders, would result in Existing Holders that placed Submitted Bids
continuing to hold an aggregate stated Liquidation Amount of outstanding Capital
Securities which, when added to the stated Liquidation Amount of outstanding
Capital Securities to be purchased by Potential Holders, based on the rates in
their Submitted Bids, would equal not less than the Available Capital
Securities. If Sufficient Clearing Bids have been made (other than because all
of the outstanding Capital Securities are subject to Submitted Hold Orders), the
Winning Bid Rate will be the Applicable Rate on or after the Rate Reset Date. If
the Winning Bid Rate is expressed as a spread over the yield on a United States
Treasury security (the "Winning Yield Spread"), the Winning Bid Rate shall be
equal to the sum of (i) the yield to maturity for the Comparable Treasury Issue
(as defined herein) based on the bid price for the Comparable Treasury Issue at
12:00 p.m. on the Rate Reset Pricing Date, plus (ii) the Winning Yield Spread.
If all of the outstanding Capital Securities are subject to Submitted Hold
Orders, the Applicable Rate after the Rate Reset Date will be equal to the Full
Participation Rate.
If Sufficient Clearing Bids have not been made (a "Failed Auction"), the
Corporation will be required to redeem on the Rate Reset Date the Junior
Subordinated Debt Securities at par plus any accrued and unpaid interest thereon
at the date of redemption. See "Description of Exchange Junior Subordinated Debt
Securities -- Redemption -- Mandatory Redemption." Upon redemption of the Junior
Subordinated Debt Securities, the proceeds of such redemption shall concurrently
be applied to redeem, at the applicable Redemption Price, the Trust Securities.
See "Description of Exchange Capital Securities -- Mandatory Redemption."
Acceptance and Rejection of Submitted Bids and Submitted Sell Orders and
Allocation of Capital Securities
Based on the determinations made under "-- Determination of Sufficient
Clearing Bids, Winning Bid Rate and Applicable Rate" above, and subject to the
discretion of the Auction Agent to round as described below, Submitted Bids
shall be accepted or rejected in the order of priority set forth in the Auction
Procedures with the result that Existing Holders and Potential Holders of
Capital Securities shall sell, continue to hold and/or purchase Capital
Securities as set forth below. Existing Holders that submitted Hold Orders shall
continue to hold the Capital Securities subject to such Hold Orders.
If Sufficient Clearing Bids have been made (unless this results because all
outstanding Capital Securities are subject to Submitted Hold Orders):
(a) Each Existing Holder that placed a Submitted Sell Order or a
Submitted Bid specifying a rate higher than the Winning Bid Rate shall sell
the stated Liquidation Amount of outstanding Capital Securities subject to
such Submitted Sell Order or Submitted Bid;
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(b) Each Existing Holder that placed a Submitted Bid specifying a rate
lower than the Winning Bid Rate shall continue to hold the stated
Liquidation Amount of outstanding Capital Securities subject to such
Submitted Bid;
(c) Each Potential Holder that placed a Submitted Bid specifying a
rate lower than the Winning Bid Rate shall purchase the stated Liquidation
Amount of outstanding Capital Securities subject to such Submitted Bid;
(d) Each Existing Holder that placed a Submitted Bid specifying a rate
equal to the Winning Bid Rate shall continue to hold the stated Liquidation
Amount of outstanding Capital Securities subject to such Submitted Bid,
unless the stated Liquidation Amount of outstanding Capital Securities
subject to all such Submitted Bids is greater than the excess of the
Available Capital Securities over the stated Liquidation Amount of
outstanding Capital Securities accounted for in clauses (b) and (c) above,
in which event each Existing Holder with such a Submitted Bid shall sell a
stated Liquidation Amount of outstanding Capital Securities subject to such
Submitted Bid determined on a pro rata basis based on the aggregate stated
Liquidation Amount of outstanding Capital Securities subject to all such
Submitted Bids by such Existing Holders; and
(e) Each Potential Holder that placed a Submitted Bid specifying a
rate equal to the Winning Bid Rate shall purchase any Available Capital
Securities not accounted for in clauses (b), (c) or (d) above on a pro rata
basis based on the stated Liquidation Amount of outstanding Capital
Securities subject to all such Submitted Bids.
If Sufficient Clearing Bids have not been made, the Corporation will be
required to redeem on the Rate Reset Date the Junior Subordinated Debt
Securities at par plus any accrued and unpaid interest thereon at the date of
redemption. See "Description of Exchange Junior Subordinated Debt
Securities -- Redemption -- Mandatory Redemption." Upon redemption of the Junior
Subordinated Debt Securities, the proceeds of such redemption shall concurrently
be applied to redeem, at the applicable Redemption Price, the Capital Securities
upon the terms and conditions described herein. See "Description of Exchange
Capital Securities -- Mandatory Redemption."
If, as a result of the Auction Procedures, (i) any Existing Holder would be
entitled or required to sell, or any Potential Holder would be entitled or
required to purchase, a stated Liquidation Amount of Capital Securities that is
not equal to $100,000 or an integral multiple of $100,000 in excess thereof, the
Auction Agent shall, in such manner as, in its sole discretion, it shall
determine, round up or down the stated Liquidation Amount of Capital Securities
being sold or purchased in the Rate Reset Auction so that the stated Liquidation
Amount of Capital Securities sold or purchased by each Existing Holder or
Potential Holder shall be equal to $100,000 or an integral multiple of $100,000
in excess thereof or (ii) any Potential Holder would be entitled or required to
purchase less than $100,000 stated Liquidation Amount of Capital Securities, the
Auction Agent shall, in such manner as, in its sole discretion, it shall
determine, allocate stated Liquidation Amounts of Capital Securities for
purchase among Potential Holders so that only stated Liquidation Amounts of
Capital Securities equal to $100,000 or an integral multiple of $100,000 in
excess thereof are purchased by any such Potential Holder, even if such
allocation results in one or more of such Potential Holders not purchasing
Capital Securities.
REMARKETING AGREEMENT
The Remarketing Agent has agreed to use its best efforts, on behalf of the
holders thereof, to solicit Hold Orders from Existing Holders and Bids from
Existing Holders and Potential Holders so that there are Sufficient Clearing
Bids in the Rate Reset Auction. The Initial Purchaser (or its successor) will be
the Remarketing Agent.
Pursuant to the Remarketing Agreement, the Remarketing Agent will act as
agent for the Corporation in the remarketing of the Capital Securities in the
Rate Reset Auction. If Sufficient Clearing Bids have been made in the Rate Reset
Auction, the Remarketing Agreement provides that the Remarketing Agent will
receive fees from the Corporation equal to .50% of the aggregate stated
Liquidation Amount of outstanding
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Capital Securities on the Rate Reset Date. In the event of a Failed Auction, the
remarketing fees will not be paid to the Remarketing Agent. The Corporation will
reimburse the Remarketing Agent for all out-of-pocket expenses reasonably
incurred in connection with the performance of its duties whether or not
Sufficient Clearing Bids have been made.
The Remarketing Agreement provides that the Remarketing Agent will not be
obligated to use its best efforts to solicit Hold Orders from Existing Holders
and Bids from Existing Holders and Potential Holders in the Rate Reset Auction
(i) if in the opinion of counsel to the Remarketing Agent, an effective
registration statement is required in connection with the offering of the
Capital Securities in the Rate Reset Auction and has not been provided by the
Corporation and the Trust; (ii) or there is a material misstatement or omission
in any disclosure document provided by the Corporation or the Trust in
connection with the Rate Reset Auction. In each case described above, a Failed
Auction will have been deemed to have occurred, and the Corporation will be
required to redeem the Junior Subordinated Debt Securities in whole, but not in
part, on the Rate Reset Date at par plus accrued and unpaid interest thereon to
the date of redemption. See "Description of Exchange Junior Subordinated Debt
Securities -- Redemption -- Mandatory Redemption." Upon the redemption of the
Junior Subordinated Debt Securities, the proceeds of such redemption shall
concurrently be applied to redeem, at the applicable Redemption Price, Capital
Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of the Junior Subordinated Debt Securities so redeemed. See
"Description of Exchange Capital Securities -- Mandatory Redemption."
If for any reason Sufficient Clearing Bids have been made and the
Remarketing Agent is unable to consummate the sale of one or more Capital
Securities because of a default in performance by the Potential Holder
purchasing such Capital Securities, the Remarketing Agent will purchase such
Capital Securities on the Rate Reset Date for their aggregated stated
Liquidation Amount.
AUCTION AGENCY AGREEMENT
The Bank of New York, as the Auction Agent, has entered into an Auction
Agency Agreement with the Corporation. Prior to 10:00 a.m. (New York City time)
on the Business Day following the Submission Deadline, the Remarketing Agent
will provide the Auction Agent with all orders (including Sell Orders which are
deemed to have been submitted by Existing Holders that did not place an Order
prior to the Submission Deadline) received by it prior to the Submission
Deadline. The Auction Agent will be entitled to rely upon the terms of any Order
submitted to it by the Remarketing Agent. The Auction Agency Agreement provides
that the Auction Agent is acting as agent for the Corporation in connection with
the Rate Reset Auction. In the absence of bad faith or negligence on its part,
the Auction Agent shall not be liable for any action taken, suffered, or omitted
or for any error of judgment made by it in the performance of its duties under
the Auction Agency Agreement and shall not be liable for any error of judgment
made in good faith unless the Auction Agent shall have been negligent in
ascertaining the pertinent facts.
NOTIFICATION OF RESULTS; SETTLEMENT
The Auction Agent will advise the Remarketing Agent, the Corporation, the
Issuer Trustees and the Debenture Trustee of the Winning Bid Rate by 9:00 a.m.
(New York City time) on the third Business Day prior to the Rate Reset Date (the
"Rate Reset Pricing Date"). On the Rate Reset Pricing Date, the Remarketing
Agent will (i) advise each Existing Holder or Potential Holder that submitted an
Order of the Applicable Rate and if such Order was a Bid, whether such Bid was
accepted or rejected, in whole or in part, and (ii) confirm purchases and sales
with each Bidder purchasing or selling Capital Securities as a result of the
Rate Reset Auction.
On the Rate Reset Pricing Date, the Remarketing Agent will advise DTC of
the purchase and sales resulting from the Rate Reset Auction, and such purchases
and sales will be executed through DTC and will settle on the Rate Reset Date in
immediately available funds, subject to the rules and procedures of DTC and its
Participants then in effect. For a more complete description of DTC and its
settlement procedures, see "Description of Exchange Capital Securities -- Form,
Denomination, Book-Entry Procedures and Transfer." In the case of a holder
(other than DTC) which has taken physical delivery of a certificate representing
its
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Capital Securities, payment will be made only upon surrender of the certificate
representing such Capital Securities properly endorsed for transfer in
accordance with procedures set forth by the Remarketing Agent.
Payments to Existing Holders selling Capital Securities will be made solely
from the proceeds from the sale of Capital Securities in the Rate Reset Auction.
None of the Trust, the Issuer Trustees, the Debenture Trustee, the Corporation
and the Remarketing Agent (except to the extent expressly provided under the
Remarketing Agreement) are obligated to provide or advance funds to make payment
to the holders selling Capital Securities for remarketing.
AUCTION PROCEDURES AFTER LIQUIDATION OF THE TRUST AND DISTRIBUTION OF THE JUNIOR
SUBORDINATED DEBT SECURITIES
The Corporation, as the holder of the outstanding Common Securities, has
the right at any time to terminate the Trust and cause the Junior Subordinated
Debt Securities to be distributed to holders of the Capital Securities. See
"Distribution of Capital Securities -- Liquidation of the Trust and Distribution
of Junior Debt Securities." If the Trust is liquidated and the Junior
Subordinated Debt Securities are distributed to the holders of Capital
Securities, Existing Holders and Potential Holders will submit Orders relating
to a Like Amount of outstanding Junior Subordinated Debt Securities, and the
Auction Procedures will be implemented in the same manner.
DESCRIPTION OF EXCHANGE CAPITAL SECURITIES
Pursuant to the terms of the Declaration, the Issuer Trustees on behalf of
the Trust have issued the Old Capital Securities and the Common Securities and
will issue the Exchange Capital Securities. The Exchange Capital Securities will
represent beneficial ownership interests in the Trust and the holders thereof
will be entitled to a preference in certain circumstances with respect to
Distributions and amounts payable on redemption of the Capital Securities or
liquidation of the Trust over the Common Securities, as well as other benefits
as described in the Declaration. See "-- Subordination of Common Securities."
The Declaration has been qualified under the Trust Indenture Act of 1939 (the
"Trust Indenture Act"). This summary of certain provisions of the Capital
Securities, the Common Securities and the Declaration does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Declaration, including the definitions therein of
certain terms. The Declaration is attached as an exhibit to the Registration
Statement.
GENERAL
The Capital Securities (including the Old Capital Securities and the
Exchange Capital Securities) are limited to $500 million aggregate Liquidation
Amount at any one time outstanding. The Capital Securities rank pari passu, and
payments will be made thereon pro rata, with the Common Securities except as
described under "-- Subordination of Common Securities." Legal title to the
Junior Subordinated Debt Securities is held by the Property Trustee on behalf of
the Trust in trust for the benefit of the holders of the Capital Securities and
Common Securities. The Guarantee provides for the guarantee on a subordinated
basis with respect to the Capital Securities but will not guarantee payment of
Distributions or amounts payable on redemption of the Capital Securities or on
liquidation of the Trust when the Trust does not have funds on hand available to
make such payments. See "Description of Exchange Guarantee."
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DISTRIBUTIONS
The Capital Securities represent beneficial ownership interests in the
Trust, and Distributions on each Capital Security will be payable at the
Applicable Rate applied to the stated Liquidation Amount of $1,000, and will be
payable semi-annually in arrears on the 1st day of June and December of each
year to the holders of the Capital Securities at the close of business on the
Business Day immediately preceding such Distribution Date (each, a "record
date"). Distributions on the Capital Securities are cumulative. Distributions
accumulate from the original issue date of the Old Capital Securities. The first
Distribution Date for the Capital Securities will be December 1, 1997. The
amount of Distributions payable for any period will be computed on the actual
number of days elapsed in a year of twelve 30-day months. In the event that any
date on which Distributions are payable on the Capital Securities is not a
Business Day, payment of the Distributions payable on such date will be made on
the next succeeding day that is a Business Day (and without any additional
Distributions or other payments in respect to any such delay) with the same
force and effect as if made on the date such payment was originally payable
(each date on which Distributions are payable in accordance with the foregoing,
a "Distribution Date"). A "Business Day" shall mean any day other than a
Saturday or a Sunday, or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to remain closed, or a
day on which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
Prior to the Rate Reset Date, the Indenture provides that the failure by
the Corporation to pay interest on the Junior Subordinated Debt Securities when
due is a Debenture Event of Default in which case the Property Trustee may
declare the principal of and the interest on the Junior Subordinated Debt
Securities due and payable. See "Description of Exchange Junior Subordinated
Debt Securities -- Debenture Events of Default; Notice." After the Rate Reset
Date and so long as no Debenture Event of Default has occurred and is
continuing, the Corporation has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debt Securities at any time or
from time to time for a period not exceeding ten consecutive semi-annual periods
with respect to each Extension Period, provided that no Extension Period may
extend beyond the Stated Maturity of the Junior Subordinated Debt Securities. As
a consequence of any such election, semi-annual Distributions on the Capital
Securities by the Trust will be deferred during any such Extension Period.
Distributions to which holders of the Capital Securities are entitled will
accumulate additional Distributions thereon at the Applicable Rate, compounded
semi-annually from the relevant payment date for such Distributions during any
such Extension Period, to the extent permitted by applicable law. The term
"Distributions" as used herein shall include any such additional Distributions.
During any such Extension Period, the Corporation may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation (including Other Debentures) that rank pari passu
with or junior in interest to the Junior Subordinated Debt Securities, or (iii)
make any guarantee payments with respect to any guarantee by the Corporation of
the debt securities of any subsidiary of the Corporation (including Other
Guarantees) if such guarantee ranks pari passu with or junior in interest to the
Junior Subordinated Debt Securities (other than (a) dividends or distributions
in common stock of the Corporation, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Guarantee, (d) purchases or acquisitions of shares of the Corporation's common
stock in connection with the satisfaction by the Corporation of its obligations
under any employee benefit plan or any other contractual obligation of the
Corporation (other than a contractual obligation ranking pari passu with or
junior to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for another
class or series of the Corporation's capital stock or (f) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged). Prior to the termination of any such Extension
Period, the Corporation may further extend such Extension Period, provided that
such extension does not cause such Extension Period to exceed ten consecutive
semi-annual periods or to extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. Upon the termination of any such
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Extension Period and the payment of all amounts then accrued and unpaid on the
Junior Subordinated Debt Securities (together with interest thereon accrued at
the Applicable Rate compounded semi-annually, to the extent permitted by
applicable law), and subject to the foregoing limitations, the Corporation may
elect to begin a new Extension Period. No interest or other amounts shall be due
and payable during an Extension Period, except at the end thereof. The
Corporation must give the Property Trustee, the Administrative Trustees and the
Debenture Trustee notice of its election of any such Extension Period at least
three Business Days prior to the earlier of (i) the date the Distributions on
the Capital Securities would have been payable except for the election to begin
such Extension Period or (ii) the date the Administrative Trustees are required
to give notice to any automated quotation system or to holders of such Capital
Securities of the record date or the date such Distributions are payable, but in
any event not less than three Business Days prior to such record date. The
Debenture Trustee shall give notice of the Corporation's election to begin or
extend an Extension Period to the holders of the Capital Securities. There is no
limitation on the number of times that the Corporation may elect to begin an
Extension Period. See "Description of Exchange Junior Subordinated Debt
Securities -- Option to Extend Interest Payment Date" and "Certain United States
Federal Income Tax Consequences -- Interest and Original Issue Discount."
The Corporation has no current intention of exercising its right to defer
payments of interest on the Junior Subordinated Debt Securities.
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debt Securities in which the Trust has invested the proceeds from the issuance
and sale of the Trust Securities. See "Description of Exchange Junior
Subordinated Debt Securities -- General." If the Corporation does not make
interest payments on the Junior Subordinated Debt Securities, the Property
Trustee will not have funds available to pay Distributions on the Capital
Securities. The payment of Distributions (if and to the extent the Trust has
funds legally available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed by the Corporation on a limited
basis to the extent set forth herein under "Description of Exchange Guarantee."
MANDATORY REDEMPTION
Upon the repayment in full at the Stated Maturity or a redemption at any
time of the Junior Subordinated Debt Securities (other than following the
distribution of the Junior Subordinated Debt Securities to the holders of the
Capital Securities), the proceeds from such repayment or redemption shall be
applied by the Property Trustee to redeem a Like Amount of Capital Securities,
on the Redemption Date, at the applicable Redemption Price, which shall be equal
to (i) par plus any accrued but unpaid interest on the Junior Subordinated Debt
Securities on the applicable Redemption Date in the case of (A) the repayment of
the Junior Subordinated Debt Securities at Stated Maturity, (B) an Early
Optional Redemption of the Junior Subordinated Debt Securities on the Rate Reset
Date or (C) an Early Mandatary Redemption of the Junior Subordinated Debt
Securities on the Rate Reset Date, (ii) in the case of the redemption of the
Junior Subordinated Debt Securities in connection with the occurrence of a Tax
Event, '40 Act Event or Capital Treatment Event after the Rate Reset Date and
prior to June 1, 2009, the Make-Whole Amount (as defined under "Description of
Exchange Junior Subordinated Debt Securities -- Tax Event, '40 Act Event or
Capital Treatment Event Redemption") or (iii) in the case of the optional
redemption of the Junior Subordinated Debt Securities on or after June 1, 2009
(including an optional redemption upon the occurrence of a Tax Event, '40 Act
Event or Capital Treatment Event), the Optional Redemption Price (as defined
under "Description of Exchange Junior Subordinated Debt Securities -- Redemption
- -- Optional Redemption").
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Corporation will pay as
additional amounts on the Junior Subordinated Debt Securities the Additional
Sums (as defined below).
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by the Trust on the
outstanding Capital Securities and Common Securities shall not be reduced as a
result of any additional taxes, duties and other governmental charges (other
than United States withholding taxes) to which the Trust has become subject as a
result of a Tax Event.
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REDEMPTION PROCEDURES
Capital Securities shall be redeemed, if at all, at the applicable
Redemption Price with the proceeds from the contemporaneous repayment or
redemption of the Junior Subordinated Debt Securities. Redemptions of the
Capital Securities shall be made and the applicable Redemption Price shall be
payable on each Redemption Date only to the extent that the Trust has funds on
hand available for the payment of such Redemption Price. See also
"-- Subordination of Common Securities."
If the Trust gives a notice of redemption in respect of the Capital
Securities, then, by 12:00 noon, New York City time, on the date fixed for
redemption (the "Redemption Date"), to the extent funds are available, with
respect to the Capital Securities held in global form, the Property Trustee will
deposit irrevocably with DTC funds sufficient to pay the applicable Redemption
Price and will give DTC irrevocable instructions and authority to pay the
applicable Redemption Price to the holders of the Capital Securities. See
"-- Form, Denomination, Book-Entry Procedures and Transfer." With respect to the
Capital Securities held in certificated form, the Property Trustee, to the
extent funds are available, will irrevocably deposit with the paying agent for
the Capital Securities funds sufficient to pay the applicable Redemption Price
and will give such paying agent irrevocable instructions and authority to pay
the Redemption Price to the holders thereof upon surrender of their certificates
evidencing the Capital Securities. See "-- Payment and Paying Agency."
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date shall be payable to the holders of the Capital Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of the holders of the Capital Securities will
cease, except the right of the holders of the Capital Securities to receive the
applicable Redemption Price, but without interest on such Redemption Price, and
the Capital Securities will cease to be outstanding. In the event that any
Redemption Date is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the applicable Redemption Price is improperly withheld or
refused and not paid either by the Trust or by the Corporation pursuant to the
Guarantee as described under "Description of Exchange Guarantee," Distributions
on Capital Securities will continue to accrue at the then Applicable Rate, from
the Redemption Date originally established by the Trust to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), the Corporation or its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender in the open
market or by private agreement.
Notice of any Early Optional Redemption (except in the limited
circumstances described in the following sentence), Optional Redemption or a
Special Event Redemption will be mailed to each holder of Trust Securities at
its registered address at least 30 but not more than 60 days before the
Redemption Date. Notice of an Early Optional Redemption may also be given at
least five days before the Redemption Date when a Tax Event, '40 Act Event or
Capital Treatment Event has occurred not more than 30 days prior to the
Submission Deadline. A Mandatory Redemption or repayment at Stated Maturity will
occur, if at all, in the circumstances set forth in this Prospectus, and,
accordingly, notice of any such redemption or repayment is given hereby and will
not be mailed to the holders of Trust Securities.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Corporation, as the holder of the outstanding Common Securities, will
have the right at any time (including, without limitation, upon the occurrence
of a Tax Event, '40 Act Event or Capital Treatment Event) to terminate the Trust
and cause a Like Amount of the Junior Subordinated Debt Securities to be
distributed to the holders of the Trust Securities upon liquidation of the
Trust; provided, however, that following such distribution of the Junior
Subordinated Debt Securities, the Corporation agrees to use its best efforts to
maintain any ratings of such Junior Subordinated Debt Securities by any
nationally recognized rating
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agency for so long as any such Junior Subordinated Debt Securities are
outstanding. Such right to terminate is subject to prior approval of the Federal
Reserve, if then required under applicable capital guidelines or policies of the
Federal Reserve.
Upon liquidation of the Trust and certain other events, the Junior
Subordinated Debt Securities may be distributed to holders of the Capital
Securities. Under current United States federal income tax law, a distribution
of Junior Subordinated Debt Securities upon the dissolution of the Trust would
not be a taxable event to holders of the Capital Securities. If, however, the
Trust is characterized for United States federal income tax purposes as an
association taxable as a corporation at the time of dissolution of the Trust,
the distribution of the Junior Subordinated Debt Securities may constitute a
taxable event to holders of Capital Securities. Moreover, upon the occurrence of
a Tax Event, '40 Act or a Capital Treatment Event, a dissolution of the Trust in
which holders of the Capital Securities receive cash would be a taxable event to
such holders. See "Certain United States Federal Income Tax
Consequences -- Distribution of Junior Subordinated Debt Securities to Holders
of Capital Securities."
The Trust shall automatically terminate upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Corporation;
(ii) the distribution of a Like Amount of the Junior Subordinated Debt
Securities to the holders of the Trust Securities if the Corporation, as
Depositor, has given written direction to the Property Trustee to terminate the
Trust (which direction is optional and, except as described above, wholly within
the discretion of the Corporation, as Depositor); (iii) redemption of all of the
Trust Securities as described under "-- Mandatory Redemption" above; (iv)
expiration of the term of the Trust; and (v) the entry of an order for the
dissolution of the Trust by a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii), (iv) or
(v) above, the Trust shall be liquidated by the Issuer Trustees as expeditiously
as the Issuer Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to the holders of such Trust Securities a Like Amount of the Junior
Subordinated Debt Securities, unless such distribution would not be practical,
in which event such holders will be entitled to receive out of the assets of the
Trust available for distribution to holders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an amount equal to, in
the case of holders of Capital Securities, the aggregate of the Liquidation
Amount plus accumulated and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Capital Securities shall be paid on
a pro rata basis. The holder(s) of the Common Securities will be entitled to
receive distributions upon any such liquidation pro rata with the holders of the
Capital Securities, except that if a Debenture Event of Default (or an event
that, with notice or passage of time, would become such a Debenture Event of
Default) has occurred and is continuing, the Capital Securities shall have a
priority over the Common Securities with respect to any such distributions. See
"-- Subordination of Common Securities." If an early termination occurs as
described in clause (v) above, the Junior Subordinated Debt Securities will be
subject to optional redemption in whole (but not in part).
"Like Amount" means (i) with respect to a redemption of Capital Securities,
Capital Securities having a Liquidation Amount equal to that portion of the
principal amount of Junior Subordinated Debt Securities to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Common Securities
and to the Capital Securities based upon the relative Liquidation Amounts of
such classes and the proceeds of which will be used to pay the Redemption Price
of the Capital Securities and (ii) with respect to a distribution of Junior
Subordinated Debt Securities to holders of Capital Securities in connection with
a dissolution or liquidation of the Trust, Junior Subordinated Debt Securities
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the holder to whom such Junior Subordinated Debt Securities are
distributed.
If the Corporation does not redeem the Junior Subordinated Debt Securities
prior to maturity and the Trust is not liquidated and the Junior Subordinated
Debt Securities are not distributed to holders of the Trust
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Securities, the Capital Securities will remain outstanding until the repayment
of the Junior Subordinated Debt Securities at the Stated Maturity.
On and after the liquidation date fixed for any distribution of Junior
Subordinated Debt Securities to holders of the Trust Securities, (i) the Capital
Securities will no longer be deemed to be outstanding, (ii) DTC or its nominee,
as the record holder of the Capital Securities, will receive a registered global
certificate or certificates representing the Junior Subordinated Debt Securities
to be delivered upon such distribution with respect to Capital Securities held
by DTC or its nominee and (iii) any certificates representing Capital Securities
not held by DTC or its nominee will be deemed to represent Junior Subordinated
Debt Securities having a principal amount equal to the Liquidation Amount of
such Capital Securities and bearing accrued and unpaid interest in an amount
equal to the accumulated and unpaid Distributions on such Capital Securities
until such certificates are presented to the Administrative Trustees or their
agent for cancellation, whereupon the Corporation will issue to such holder, and
the Debenture Trustee will authenticate, a certificate representing such Junior
Subordinated Debt Securities.
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debt Securities that may be distributed in
exchange for the Trust Securities if a dissolution and liquidation of the Trust
were to occur. Accordingly, the Capital Securities that an investor may
purchase, or the Junior Subordinated Debt Securities that the investor may
receive on dissolution and liquidation of the Trust, may trade at a discount to
the price that the investor paid to purchase the Capital Securities offered
hereby.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and Common Securities, as applicable, shall be made pro rata to the
holders of Capital Securities and Common Securities based on the Liquidation
Amount of the Trust Securities, provided that, if on any Distribution Date or
Redemption Date any Debenture Event of Default (or an event that, with notice or
passage of time, would become such an Event of Default) or an Event of Default
under the Declaration shall have occurred and be continuing, no payment of any
Distribution on, or applicable Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of such Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions on all of the
outstanding Capital Securities for all Distribution periods terminating on or
prior thereto, or, in the case of payment of the applicable Redemption Price,
the full amount of such Redemption Price on all of the outstanding Capital
Securities, shall have been made or provided for, and all funds available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the applicable Redemption Price of, the Capital Securities
then due and payable.
In the case of any Event of Default under the Declaration resulting from a
Debenture Event of Default, the Corporation as holder of the Common Securities
will be deemed to have waived any right to act with respect to any such Event of
Default under the Declaration until the effect of all such Events of Default
have been cured, waived or otherwise eliminated. Until all such Events of
Default under the Declaration have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the holders of
such Capital Securities and not on behalf of the Corporation as holder of the
Common Securities, and only the holders of the Capital Securities will have the
right to direct the Property Trustee to act on their behalf.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under the
Declaration (an "Event of Default") (whatever the reason for such Event of
Default 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):
(i) the occurrence of a Debenture Event of Default (see "Description
of Exchange Junior Subordinated Debt Securities -- Debenture Events of
Default"); or
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(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(iii) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in the Declaration
(other than a covenant or warranty, a default in the performance of which
or the breach of which is addressed in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Issuer Trustees by the holders of at least 25% in aggregate
Liquidation Amount of the outstanding Capital Securities, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" under the Declaration; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Corporation to
appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital Securities, the
Administrative Trustees and the Corporation, as Depositor, unless such Event of
Default shall have been cured or waived. The Corporation, as Depositor, and the
Administrative Trustees are required to file annually with the Property Trustee
a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Declaration.
If a Debenture Event of Default (or an event that with notice or the
passage of time, would become such an Event of Default) or an Event of Default
under the Declaration has occurred and is continuing, the Capital Securities
shall have a preference over the Common Securities as described above. See
"-- Liquidation of the Trust and Distribution of Junior Subordinated Debt
Securities" and "-- Subordination of Common Securities."
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by the holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed at such time by the
holders of a majority in Liquidation Amount of the outstanding Capital
Securities. In no event will the holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Corporation as the holder of the
Common Securities. No resignation or removal of an Issuer Trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
Declaration.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust's property
may at the time be located, the Corporation, as the holder of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of such Trust's property, or to act as separate trustee of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the Declaration. In case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any person resulting
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from any merger, conversion or consolidation to which such Issuer Trustee shall
be a party, or any person succeeding to all or substantially all the corporate
trust business of such Issuer Trustee, shall be the successor of such Issuer
Trustee under the Declaration, provided such person shall be otherwise qualified
and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other person, except as
described below or as otherwise set forth in the Declaration. The Trust may, at
the request of the Corporation, as Depositor, with the consent of the
Administrative Trustees but without the consent of the holders of the Capital
Securities, the Property Trustee or the Delaware Trustee, merge with or into,
consolidate, amalgamate or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to, a trust organized as such
under the laws of any State; provided, however, that (i) such successor entity
either (a) expressly assumes all of the obligations of the Trust with respect to
the Capital Securities or (b) substitutes for the Capital Securities other
securities having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Capital Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Corporation expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of the Junior Subordinated Debt
Securities, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed or traded upon notification of issuance, on
any national securities exchange or other organization on which the Capital
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Capital Securities (including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose identical and limited to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Corporation has received an opinion from
independent counsel to the Trust experienced in such matters to the effect that
(a) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act of 1940 (the "Investment Company Act") and (viii) the
Corporation or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, the Trust shall not, except
with the consent of holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it, if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as an association taxable as a corporation (or
to substantially increase the likelihood that the Trust or the successor entity
would be classified as other than a grantor trust) for United States federal
income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION
Except as provided below and under "Description of Exchange
Guarantee -- Amendments and Assignment" and as otherwise required by law and the
Declaration, the holders of the Capital Securities will have no voting rights.
The Declaration may be amended from time to time by the Corporation, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Securities, (i) to cure any ambiguity, correct or
supplement any provision in the Declaration that may be inconsistent with any
other provision, or to
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make any other provisions with respect to matters or questions arising under the
Declaration, which shall not be inconsistent with the other provisions of the
Declaration, or (ii) to modify, eliminate or add to any provisions of the
Declaration to such extent as shall be necessary to ensure that the Trust will
be classified for United States federal income tax purposes as a grantor trust
at all times that any Trust Securities are outstanding or to ensure that the
Trust will not be required to register as an "investment company" under the
Investment Company Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the interests of any
holder of Trust Securities, and any amendments of the Declaration shall become
effective when notice thereof is given to the holders of the Trust Securities.
The Declaration may be amended by the Issuer Trustees and the Corporation with
(i) the consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Capital Securities, and (ii) receipt by
the Issuer Trustees of an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Issuer Trustees in accordance with
such amendment will not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status as an
"investment company" under the Investment Company Act. In addition, without the
consent of each holder of Trust Securities, the Declaration may not be amended
to (i) change the amount or timing of any Distribution on the Trust Securities
or otherwise adversely affect the amount of any Distribution required to be made
in respect of the Trust Securities as of a specified date or (ii) restrict the
right of a holder of Trust Securities to institute suit for the enforcement of
any such payment on or after such date.
So long as any Junior Subordinated Debt Securities are held by the Trust,
the Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Property Trustee with respect to
the Junior Subordinated Debt Securities, (ii) waive any past default that is
waivable under Section 5.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Debt Securities shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Junior Subordinated Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Capital Securities; provided, however,
that where a consent under the Indenture would require the consent of each
holder of Junior Subordinated Debt Securities affected thereby, no such consent
shall be given by the Property Trustee without the prior consent of each holder
of the Capital Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Capital
Securities except by subsequent vote of such holders. The Property Trustee shall
notify each holder of Capital Securities of any notice of default with respect
to the Junior Subordinated Debt Securities. In addition to obtaining the
foregoing approvals of such holders of the Capital Securities, prior to taking
any of the foregoing actions, the Issuer Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that such action will not
affect the Trust's status as a grantor trust for United States federal income
tax purposes on account of such action.
Any required approval of holders of Capital Securities may be given at a
meeting of such holders convened for such purpose or pursuant to written
consent. The Property Trustee will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be given to each
holder of record of Capital Securities in the manner set forth in the
Declaration.
No vote or consent of the holders of Capital Securities will be required
for the Trust to redeem and cancel the Capital Securities in accordance with the
Declaration.
Notwithstanding that holders of the Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Corporation, the Issuer Trustees or any
affiliate of the Corporation or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
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EXPENSES AND TAXES
In the Indenture, the Corporation, as borrower, has agreed to pay all debts
and other obligations (other than with respect to payments of Distributions,
amounts payable upon redemption and the Liquidation Amount of the Trust
Securities) and all costs and expenses of the Trust (including costs and
expenses relating to the organization of the Trust, the fees and expenses of the
Issuer Trustees and the costs and expenses relating to the operation of the
Trust) and the offering of the Capital Securities, and to pay any and all taxes
and all costs and expenses with respect to the foregoing (other than United
States withholding taxes) to which the Trust might become subject. The foregoing
obligations of the Corporation under the Indenture are for the benefit of, and
shall be enforceable by, any person to whom any such debts, obligations, costs,
expenses and taxes are owed (a "Creditor") whether or not such Creditor has
received notice thereof. Any such Creditor may enforce such obligations of the
Corporation directly against the Corporation, and the Corporation has
irrevocably waived any right or remedy to require that any such Creditor take
any action against the Trust or any other person before proceeding against the
Corporation. The Corporation has also agreed in the Indenture to execute such
additional agreement(s) as may be necessary or desirable to give full effect to
the foregoing.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
Exchange Capital Securities will be represented by one or more Exchange
Capital Securities in registered, global form (collectively, the "Global Capital
Securities"). The Global Capital Securities will be deposited upon issuance with
the Property Trustee as custodian for DTC, in New York, New York, and registered
in the name of DTC or its nominee, in each case for credit to an account of a
direct or indirect participant in DTC as described below.
Except as set forth below, the Global Capital Securities may be
transferred, in whole but not in part, only to another nominee of DTC or to a
successor of DTC or its nominee and only in amounts that would not cause a
holder to own less than 100 Exchange Capital Securities. Beneficial interests in
the Global Capital Securities may not be exchanged for Exchange Capital
Securities in certificated form except in the limited circumstances described
below. In addition, transfer of beneficial interests in the Global Capital
Securities will be subject to the applicable rules and procedures of DTC and its
direct or indirect participants which may change from time to time. See "--
Exchange of Book-Entry Capital Securities for Certificated Capital Securities."
In the event that Exchange Capital Securities are issued in certificated
form, such Exchange Capital Securities will be in blocks having a Liquidation
Amount of $100,000 (100 Capital Securities) and integral multiples of $100,000
in excess thereof and may be transferred or exchanged only in the manner and at
the offices described below.
Depositary Procedures
DTC has advised the Trust and the Corporation as follows: DTC is a limited
purpose trust company organized under the laws of the State of New York, a
member of the Federal Reserve, a "clearing corporation" within the meaning of
the Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participating organizations (collectively, the
"Participants") and to facilitate the clearance and settlement of transactions
in those securities between Participants through electronic book-entry changes
to accounts of its Participants, thereby eliminating the need for physical
movement of certificates. Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
Indirect access to DTC's system is also available to other entities such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly
(collectively, the "Indirect Participants"). Persons who are not Participants
may beneficially own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interest and transfer
of ownership interest of each actual purchaser of each security held by or on
behalf of DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised the Corporation and the Trust that, pursuant to
procedures established by it, ownership of such interests in the Global Capital
Securities will be shown on, and the transfer of ownership
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thereof will be effected only through, records maintained by DTC (with respect
to the Participants) or by the Participants and the Indirect Participants (with
respect to other owners of beneficial interests in the Global Capital
Securities).
Investors in the Global Capital Securities may hold their interests therein
directly through DTC, if they are Participants in DTC, or indirectly through
organizations that are Participants in such system. All interests in a Global
Capital Security will be subject to the procedures and requirements of DTC. The
laws of some states require that certain persons take physical delivery in
certificated form of certain securities, such as the Capital Securities, that
they own. Consequently, the ability to transfer beneficial interests in a Global
Capital Security to such persons will be limited to that extent. Because DTC can
act only on behalf of Participants, which in turn act on behalf of Indirect
Participants and certain banks, the ability of a person having beneficial
interests in a Global Capital Security to pledge such interests to persons or
entities that do not participate in the DTC system, or otherwise take actions in
respect of such interests, may be affected by the lack of a physical certificate
evidencing such interests. For certain other restrictions on the transferability
of the Capital Securities, see "-- Exchange of Book-Entry Capital Securities
for Certificated Capital Securities."
EXCEPT AS DESCRIBED BELOW, OWNERS OF BENEFICIAL INTERESTS IN THE GLOBAL
CAPITAL SECURITIES WILL NOT BE ENTITLED TO HAVE CAPITAL SECURITIES REGISTERED IN
THEIR NAMES, WILL NOT RECEIVE OR BE ENTITLED TO RECEIVE PHYSICAL DELIVERY OF
CAPITAL SECURITIES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE
REGISTERED OWNERS OR HOLDERS THEREOF UNDER THE DECLARATION FOR ANY PURPOSE.
Payments in respect of the Global Capital Securities registered in the name
of DTC or its nominee will be payable by the Property Trustee to DTC or its
nominee as the registered holder under the Declaration by wire transfer in
immediately available funds on each Distribution Date. Under the terms of the
Declaration, the Property Trustee will treat the persons in whose names the
Capital Securities, including the Global Capital Securities, are registered as
the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, neither the Property Trustee nor
any agent thereof has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect Participant's records
relating to, or payments made on account of, beneficial ownership interests in
the Global Capital Securities, or for maintaining, supervising or reviewing any
of DTC's records or any Participant's or Indirect Participant's records relating
to the beneficial ownership interests in the Global Capital Securities, or (ii)
any other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants. DTC has advised the Corporation and the
Trust that its current practice, upon receipt of any payment in respect of
securities such as the Capital Securities, is to credit the accounts of the
relevant Participants with the payment on the payment date, in amounts
proportionate to their respective holdings in Liquidation Amount of beneficial
interests in the Global Capital Securities, as shown on the records of DTC,
unless DTC has reason to believe it will not receive payment on such payment
date. Payments by the Participants and the Indirect Participants to the
beneficial owners of Capital Securities represented by Global Capital Securities
held through such Participants will be governed by standing instructions and
customary practices and will be the responsibility of the Participants or the
Indirect Participants and will not be the responsibility of DTC, the Property
Trustee or the Trust. Neither the Trust nor the Property Trustee will be liable
for any delay by DTC or any of its Participants in identifying the beneficial
owners of the Capital Securities, and the Trust and the Property Trustee may
conclusively rely on and will be protected in relying on instructions from DTC
or its nominee for all purposes.
Interests in the Global Capital Securities will trade in DTC's Same-Day
Funds Settlement System and secondary market trading activity in such interests
will therefore settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its Participants. Transfers between
Participants in DTC will be effected in accordance with DTC's procedures, and
will be settled in same-day funds.
DTC has advised the Trust and the Corporation that it will take any action
permitted to be taken by a holder of Capital Securities (including, without
limitation, the presentation of Capital Securities for exchange as described
below) only at the direction of one or more Participants to whose account with
DTC interests in the Global Capital Securities are credited and only in respect
of such portion of the aggregate Liquidation
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Amount of the Capital Securities represented by the Global Capital Securities as
to which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Declaration, DTC reserves the
right to exchange the Global Capital Securities for legended Capital Securities
in certificated form and to distribute such Capital Securities to its
Participants.
So long as DTC or its nominee is the registered owner of the Global Capital
Securities, DTC or such nominee, as the case may be, will be considered the sole
owner or holder of the Capital Securities represented by the Global Capital
Securities for all purposes under the Declaration.
Neither DTC nor its nominee will consent or vote with respect to the
Capital Securities. Under its usual procedures, DTC would mail an omnibus proxy
to the Trust as soon as possible after the record date. The omnibus proxy
assigns the consenting or voting rights of DTC or its nominee to those
Participants to whose accounts the Capital Securities are credited on the record
date (identified in a listing attached to the omnibus proxy).
The information in this section concerning DTC and its book-entry system
has been obtained from sources that the Corporation and the Trust believe to be
reliable, but neither the Corporation nor the Trust takes responsibility for the
accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the Global Capital Securities among Participants in DTC, it is
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Trust nor the
Property Trustee will have any responsibility for the performance by DTC or its
Participants or Indirect Participants of their respective obligations under the
rules and procedures governing their operations.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities
A Global Capital Security is exchangeable for Capital Securities in
registered certificated form if (i) DTC (x) notifies the Trust that it is no
longer willing or able to properly discharge its responsibilities with respect
to the Capital Securities and the Corporation is unable to locate a qualified
successor, or (y) has ceased to be a "clearing agency" registered under the
Exchange Act; (ii) the Trust at its sole option elects to terminate the
book-entry system through DTC; or (iii) there shall have occurred and be
continuing a Debenture Event of Default. In addition, beneficial interests in a
Global Capital Security may be exchanged by or on behalf of DTC for certificated
Capital Securities upon request by DTC, but only upon at least 20 days prior
written notice given to the Property Trustee in accordance with DTC's customary
procedures. In all cases, certificated Capital Securities delivered in exchange
for any Global Capital Security or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of DTC (in accordance with its customary procedures).
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities held in global form shall be
made to DTC, which shall credit the relevant accounts at DTC on the applicable
Distribution Dates or in respect of the Capital Securities that are not held by
DTC, such payments shall be made by check mailed to the address of the holder
entitled thereto as such address shall appear on the register. The paying agent
(the "Paying Agent") shall initially be the Property Trustee and any co-paying
agent chosen by the Property Trustee and acceptable to the Administrative
Trustees and the Corporation. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee, the
Administrative Trustees and the Corporation. In the event that the Property
Trustee shall no longer be the Paying Agent, the Administrative Trustees shall
appoint a successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Corporation) to act as Paying Agent.
The Property Trustee has informed the Trust that so long as it serves as
paying agent for the Capital Securities, it anticipates that information
regarding Distributions on the Capital Securities, including payment date,
record date and redemption information, will be made available through The Bank
of New York at 101 Barclay Street, New York, New York, 10286, Attn: Corporate
Trust Department.
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RESTRICTIONS ON TRANSFER
The Exchange Capital Securities will be issued, and may be transferred
only, in blocks having a liquidation amount (the "Liquidation Amount") of
$100,000 (100 Capital Securities) and integral multiples of $100,000 in excess
thereof. Any attempted transfer, sale or other disposition of Exchange Capital
Securities in a block having a Liquidation Amount of other than an integral
multiple of $100,000 shall be deemed to be void and of no legal effect
whatsoever. Any such transferee shall be deemed not to be the holder of such
Exchange Capital Securities for any purpose, including but not limited to the
receipt of Distributions on such Exchange Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Exchange
Capital Securities.
REGISTRAR AND TRANSFER AGENT
The Property Trustee is acting as the registrar and transfer agent for the
Capital Securities.
Registration of transfers of the Capital Securities will be effected
without charge by or on behalf of the Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The Trust will not be required to register or cause to be
registered the transfer or exchange of the Capital Securities after they have
been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of
an Event of Default, undertakes to perform only such duties as are specifically
set forth in the Declaration and, during the existence of an Event of Default,
must exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the Declaration at the request of any holder of Trust
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby. If no Event of Default has
occurred and is continuing and the Property Trustee is required to decide
between alternative causes of action, construe ambiguous provisions in the
Declaration or is unsure of the application of any provision of the Declaration,
and the matter is not one on which holders of the Capital Securities or the
Common Securities are entitled under the Declaration to vote, then the Property
Trustee shall take such action as is directed by the Corporation and, if not so
directed, shall take such action as it deems advisable and in the best interests
of the holders of the Trust Securities and will have no liability except for its
own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Trust in such a way that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a corporation
for United States federal income tax purposes (or in a way that would
substantially increase the risk that the Trust would be classified as other than
a grantor trust for United States federal income tax purposes), and so that the
Junior Subordinated Debt Securities will be treated as indebtedness of the
Corporation for United States federal income tax purposes. In this connection,
the Corporation and the Administrative Trustees are authorized to take any
action, not inconsistent with applicable law, the certificate of trust of the
Trust or the Declaration, that the Corporation and the Administrative Trustees
determine in their discretion to be necessary or desirable for such purposes, as
long as such action does not materially adversely affect the interests of the
holders of the Trust Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money or issue debt or mortgage or pledge any of
its assets.
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DESCRIPTION OF EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES
The Old Junior Subordinated Debt Securities were issued, and the Exchange
Junior Subordinated Debt Securities will be issued, as a separate series under
the Indenture. The Indenture has been qualified under the Trust Indenture Act.
This summary of certain terms and provisions of the Junior Subordinated Debt
Securities and the Indenture does not purport to be complete, and where
reference is made to particular provisions of the Indenture, such provisions,
including the definitions of certain terms, some of which are not otherwise
defined herein, are qualified in their entirety by reference to all of the
provisions of the Indenture and those terms made a part of the Indenture by the
Trust Indenture Act. The Indenture is attached as an exhibit to the Registration
Statement.
GENERAL
Concurrently with the issuance of the Old Capital Securities and the Common
Securities, the Trust invested the proceeds thereof in Old Junior Subordinated
Debt Securities issued by the Corporation. The Junior Subordinated Debt
Securities bear interest at the Applicable Rate payable semi-annually in arrears
on the 1st day of June and December of each year (each, an "Interest Payment
Date"), commencing December 1, 1997, to the person in whose name each Junior
Subordinated Debt Security is registered, subject to certain exceptions, at the
close of business on the Business Day next preceding such Interest Payment Date.
It is anticipated that, until the liquidation of the Trust, each Junior
Subordinated Debt Security will be registered in the name of the Trust and held
by the Property Trustee for the benefit of the holders of the Trust Securities.
The amount of interest payable for any period will be computed on the basis of
the actual number of days elapsed in a year of twelve 30-day months. In the
event that any date on which interest is payable on the Junior Subordinated Debt
Securities is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), with the same force
and effect as if made on the date such payment was originally payable. Accrued
interest that is not paid on the applicable Interest Payment Date will bear
additional interest on the amount thereof (to the extent permitted by law) at
the Applicable Rate, compounded semi-annually from the relevant Interest Payment
Date. The term "interest" as used herein shall include semi-annual payments,
interest on semi-annual interest payments not paid on the applicable Interest
Payment Date and Additional Sums, as applicable. Unless previously redeemed or
repurchased, the Junior Subordinated Debt Securities will mature on June 1,
2029. See " -- Mandatory Redemption", " -- Optional Redemption" and " -- Tax
Event, '40 Act Event and Capital Treatment Event Redemption."
Prior to the Rate Reset Date, the Applicable Rate on the Junior
Subordinated Debt Securities will be 6.75% per annum. On and after the Rate
Reset Date, the Applicable Rate on the Junior Subordinated Debt Securities will
be determined on the basis of Orders placed prior to the Submission Deadline in
a Rate Reset Auction to be held on the Rate Reset Pricing Date. Pursuant to the
Auction Procedures, each Existing Holder will indicate its desire to (i)
continue to hold Capital Securities without regard to the Applicable Rate that
results from the Rate Reset Auction, (ii) continue to hold Capital Securities if
the Applicable Rate that results from the Rate Reset Auction is equal to or
greater than the rate bid by such Existing Holder, and/or (iii) sell Capital
Securities without regard to the Applicable Rate that results from such Rate
Reset Auction. A Bid by a Potential Holder over the Maximum Applicable Rate will
not be considered, and a Bid by an Existing Holder over the Maximum Applicable
Rate will be deemed to be a Sell Order. The Applicable Rate on the Junior
Subordinated Debt Securities on and after the Rate Reset Date will be equal to
(i) the Winning Bid Rate if Sufficient Clearing Bids have been made; or (ii) if
all outstanding Capital Securities are subject to Hold Orders, to the Full
Participation Rate. See "Description of the Rate Reset Auction."
In connection with the Exchange Offer, the Corporation will exchange the
Old Junior Subordinated Debt Securities for the Exchange Junior Subordinated
Debt Securities as soon as practicable after the date hereof. No Old Junior
Subordinated Debt Securities will remain outstanding after such exchange. The
Junior Subordinated Debt Securities are unsecured and rank junior and
subordinate in right of payment to all Senior Debt. Because the Corporation is a
bank holding company, the right of the Corporation to participate in any
distribution of assets of any subsidiary upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of holders of the Capital
Securities to benefit indirectly from such distribution), is subject to
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the prior claims of creditors of such subsidiary, except to the extent that the
Corporation may itself be recognized as a creditor of such subsidiary.
Accordingly, the Junior Subordinated Debt Securities will be subordinated to all
Senior Debt and effectively subordinated to all existing and future liabilities
of the Corporation's subsidiaries, and holders of Junior Subordinated Debt
Securities should look only to the assets of the Corporation for payments on the
Junior Subordinated Debt Securities. The Indenture does not limit the incurrence
or issuance of other secured or unsecured debt of the Corporation, including
Senior Debt, whether under the Indenture or any existing or other indenture that
the Corporation may enter into in the future or otherwise. See
" -- Subordination."
The Junior Subordinated Debt Securities rank pari passu with all Other
Debentures issued under the Indenture and are unsecured and subordinate and
junior in right of payment to the extent and in the manner set forth in the
Indenture to all Senior Debt of the Corporation. See " -- Subordination." The
Corporation is a non-operating holding company and almost all of the operating
assets of the Corporation and its consolidated subsidiaries are owned by such
subsidiaries. The Corporation relies primarily on dividends from such
subsidiaries to meet its obligations. The Corporation is a legal entity separate
and distinct from its present and future banking and non-banking affiliates. See
"Risk Factors -- Ranking of Obligations Under the Guarantee and the Junior
Subordinated Debt Securities" and " -- Status of the Corporation as a Bank
Holding Company." The Corporation's bank subsidiaries are subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other transactions with, the Corporation and certain other affiliates, and on
investments in stock or other securities thereof. Such restrictions prevent the
Corporation and such other affiliates from borrowing from such banks unless the
loans are secured by various types of collateral. In addition, payment of
dividends to the Corporation by a bank subsidiary is subject to ongoing review
by banking regulators and is subject to various statutory limitations and in
certain circumstances requires approval by banking regulatory authorities. The
Other Debentures will be issuable in one or more series pursuant to an indenture
supplemental to the Indenture or a resolution of the Corporation's Board of
Directors or a committee thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER
The Junior Subordinated Debt Securities will be represented by one or more
global certificates registered in the name of Cede & Co. as the nominee of DTC
if, and only if, distributed to the holders of the Trust Securities. Until such
time, the Junior Subordinated Debt Securities will be registered in the name of
the Trust and held by the Property Trustee in trust for the benefit of the
holders of the Trust Securities. Should the Junior Subordinated Debt Securities
be distributed to holders of the Trust Securities, beneficial interests in the
Junior Subordinated Debt Securities will be shown on, and transfers thereof will
be effected only through, records maintained by Participants in DTC. Except as
described below, Junior Subordinated Debt Securities in certificated form will
not be issued in exchange for the global certificates.
A global security shall be exchangeable for Junior Subordinated Debt
Securities registered in the names of persons other than Cede & Co. only if (i)
DTC notifies the Corporation that it is unwilling or unable to continue as a
depositary for such global security and no successor depositary shall have been
appointed, or if at any time DTC ceases to be a "clearing agency" registered
under the Exchange Act, at a time when DTC is required to be so registered to
act as such depositary, (ii) the Corporation in its sole discretion determines
that such global security shall be so exchangeable, or (iii) there shall have
occurred and be continuing a Debenture Event of Default. Any global security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for certificates registered in such names as DTC shall direct. It is expected
that such instructions will be based upon directions received by DTC from its
Participants with respect to ownership of beneficial interests in such global
security. In the event that Junior Subordinated Debt Securities are issued in
certificated form, such Junior Subordinated Debt Securities will be in minimum
blocks of $100,000 and integral multiples of $100,000 in excess thereof and may
be transferred or exchanged only in such minimum denominations and in the manner
and at the offices described below.
Payments on Junior Subordinated Debt Securities represented by a global
security will be made to DTC, as the depositary for the Junior Subordinated Debt
Securities. In the event Junior Subordinated Debt
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Securities are issued in certificated form, principal and interest will be
payable, the transfer of the Junior Subordinated Debt Securities will be
registrable, and Junior Subordinated Debt Securities will be exchangeable for
Junior Subordinated Debt Securities of other denominations of a like aggregate
principal amount, at the corporate office of the Debenture Trustee in New York,
New York, or at the offices of any paying agent or transfer agent appointed by
the Corporation, provided that payment of interest may be made at the option of
the Corporation by check mailed to the address of the persons entitled thereto
or by wire transfer.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemptions and other notices
and other matters, see "Description of Capital Securities -- Form, Denomination,
Book-Entry Procedures and Transfer." If the Junior Subordinated Debt Securities
are distributed to the holders of the Trust Securities upon the termination of
the Trust, the form, denomination, book-entry and transfer procedures with
respect to the Capital Securities as described under "Description of Exchange
Capital Securities -- Form, Denomination, Book-Entry Procedures and Transfer,"
shall apply to the Junior Subordinated Debt Securities mutatis mutandis.
PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on Junior Subordinated Debt
Securities will be made at the office of the Debenture Trustee in the City of
New York or at the office of such Paying Agent or Paying Agents as the
Corporation may designate from time to time, except that at the option of the
Corporation payment of any interest may be made (except in the case of Junior
Subordinated Debt Securities in global form), (i) by check mailed to the address
of the person entitled thereto as such address shall appear in the register for
Junior Subordinated Debt Securities or (ii) by transfer to an account maintained
by the person entitled thereto as specified in such register, provided that
proper transfer instructions have been received by the relevant record date.
Payment of any interest on any Junior Subordinated Debt Security will be made to
the person in whose name such Junior Subordinated Debt Security is registered at
the close of business on the record date for such interest, except in the case
of defaulted interest. The Corporation may at any time designate additional
Paying Agents or rescind the designation of any Paying Agent; however the
Corporation will at all times be required to maintain a Paying Agent in each
place of payment for the Junior Subordinated Debt Securities.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Corporation in trust, for the payment of the principal of or
interest on any Junior Subordinated Debt Security and remaining unclaimed for
two years after such principal or interest has become due and payable shall, at
the request of the Corporation, be repaid to the Corporation and the holder of
such Junior Subordinated Debt Security shall thereafter look, as a general
unsecured creditor, only to the Corporation for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
After the Rate Reset Date and so long as no Debenture Event of Default has
occurred and is continuing, the Corporation has the right under the Indenture to
defer the payment of interest on the Junior Subordinated Debt Securities at any
time or from time to time for a period not exceeding ten consecutive semi-annual
periods with respect to each Extension Period, provided, that no Extension
Period may extend beyond the Stated Maturity of the Junior Subordinated Debt
Securities. At the end of an Extension Period, the Corporation must pay all
interest then accrued and unpaid on the Junior Subordinated Debt Securities
(together with interest thereon accrued at a variable annual rate equal the
Applicable Rate compounded semi-annually from the relevant Interest Payment
Date, to the extent permitted by applicable law). During an Extension Period and
for so long as the Junior Subordinated Debt Securities remain outstanding,
interest will continue to accrue and holders of Junior Subordinated Debt
Securities (and holders of the Capital Securities while Capital Securities are
outstanding) will be required to accrue interest income (in the form of OID) for
United States federal income tax purposes. See "Certain United States Federal
Income Tax Consequences -- Interest and Original Issue Discount."
During any Extension Period, the Corporation may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's
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capital stock (which includes common and preferred stock), (ii) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Corporation (including any Other Debentures) that rank
pari passu with or junior in interest to the Junior Subordinated Debt Securities
or (iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation
(including any Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of capital stock under any such plan
in the future, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the Guarantee, (d) purchases or acquisitions of
shares of the Corporation's common stock in connection with the satisfaction by
the Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual obligation
ranking pari passu with or junior to the Junior Subordinated Debt Securities),
(e) as a result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital stock
for another class or series of the Corporation's capital stock or (f) the
purchase of fractional interests in shares of the Corporation's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged). Prior to the termination of any
Extension Period the Corporation may further extend such Extension Period;
provided, however, that such extension does not cause such Extension Period to
exceed ten consecutive semi-annual periods or to extend beyond the Stated
Maturity of the Junior Subordinated Debt Securities. Upon the termination of any
Extension Period and the payment of all interest then accrued and unpaid on the
Junior Subordinated Debt Securities (together with interest thereon accrued at
the Applicable Rate, compounded semi-annually, to the extent permitted by
applicable law), and subject to the foregoing limitations, the Corporation may
elect to begin a new Extension Period. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Corporation must give
the Property Trustee, the Administrative Trustees and the Debenture Trustee
notice of its election of any Extension Period (or an extension thereof) at
least three Business Days prior to the earlier of (i) the date the Distributions
on the Capital Securities would have been payable except for the election to
begin or extend such Extension Period or (ii) the date the Administrative
Trustees are required to give notice to any automated quotation system or to
holders of Capital Securities of the record date or the date such Distributions
are payable, but in any event not less than three Business Days prior to such
record date. The Debenture Trustee shall give notice of the Corporation's
election to begin or extend a new Extension Period to the holders of the Capital
Securities. There is no limitation on the number of times that the Corporation
may elect to begin an Extension Period.
REDEMPTION
The Junior Subordinated Debt Securities will mature on June 1, 2029 (the
"Stated Maturity") unless earlier redeemed. Prior to the Rate Reset Date, the
Corporation may not redeem the Junior Subordinated Debt Securities for any
reason. The circumstances in which the Corporation may, or is required to,
redeem the Junior Subordinated Debt Securities are described below. Upon the
repayment in full at maturity or redemption, in whole or in part, of the Junior
Subordinated Debt Securities (other than following the distribution of the
Junior Subordinated Debt Securities to the holders of the Trust Securities), the
proceeds from such repayment or redemption shall concurrently be applied to
redeem, at the applicable Redemption Price, Trust Securities having an aggregate
Liquidation Amount equal to the aggregate principal amount of the Junior
Subordinated Debt Securities so redeemed, upon the terms and conditions
described herein. See "Description of Exchange Capital Securities -- Mandatory
Redemption."
Notice of any Early Optional Redemption (except in the limited
circumstances described in the following sentence), Optional Redemption or a
Special Event Redemption will be mailed to each holder of Trust Securities at
its registered address at least 30 but not more than 60 days before the
Redemption Date. Notice of an Early Optional Redemption may also be given at
least five days before the Redemption Date when a Tax Event, '40 Act Event or
Capital Treatment Event has occurred not more than 30 days prior to the
Submission Deadline. A Mandatory Redemption or repayment at Stated Maturity will
occur, if at all, in the circumstances set forth in this Prospectus, and,
accordingly, notice of any such redemption or repayment is given hereby and will
not be mailed to the holders of Trust Securities.
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Mandatory Redemption
In the event of a Failed Auction, the Corporation must redeem the Junior
Subordinated Debt Securities on the Rate Reset Date (an "Early Mandatory
Redemption"), in whole but not in part, at par plus accrued and unpaid interest
thereon to the date of redemption.
Optional Redemption
The Corporation may redeem the Junior Subordinated Debt Securities in
whole, but not in part, on the Rate Reset Date (an "Early Optional Redemption"),
at par plus accrued and unpaid interest thereon to the date of redemption. In
addition the Corporation may redeem the Junior Subordinated Debt Securities in
whole or in part at any time on or after June 1, 2009 (an "Optional
Redemption"), at the Optional Redemption Price subject to the Corporation having
received prior approval from the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve.
"Optional Redemption Price" is equal to the sum of the aggregate principal
amount of Junior Subordinated Debt Securities being redeemed, any accrued and
unpaid interest on the Junior Subordinated Debt Securities to the date of
redemption and the Optional Redemption Premium.
"Optional Redemption Premium" is equal to 50% of the Stated Coupon (as
defined below) on June 1, 2009, declining ratably on each June 1 thereafter to
zero on or after June 1, 2019.
"Stated Coupon" is the product of the aggregate principal amount of Junior
Subordinated Debt Securities being redeemed and the Applicable Rate.
Tax Event, '40 Act Event or Capital Event Redemption
After the Rate Reset Date and upon the occurrence of an Tax Event, '40 Act
Event or Capital Treatment Event (each a "Special Event"), the Corporation may
within 90 days following the occurrence of such Special Event redeem the Junior
Subordinated Debt Securities in whole, but not in part, for cash, at (i) the
Make-Whole Amount, in the case of a redemption upon the occurrence of a Special
Event prior to June 1, 2009, or (ii) the Optional Redemption Price, in the case
of a redemption upon the occurrence of a Special Event on or after June 1, 2009.
Upon the redemption of the Junior Subordinated Debt Securities, the proceeds of
such redemption shall concurrently be applied to redeem, at the applicable
Redemption Price, the Trust Securities upon the terms and conditions described
herein. See "Description of Exchange Capital Securities -- Mandatory
Redemption."
"Tax Event" means the receipt by the Property Trustee of an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced proposed change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein (b) any judicial decision or official administrative pronouncement,
ruling, regulatory procedure, notice or announcement, including any notice or
announcement of intent to adopt such procedures or regulations (an
"Administrative Action") or (c) any amendment to or change in the administrative
position or interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in each case, by
any legislative body, court, governmental agency or regulatory body,
irrespective of the manner in which such amendment or change is made known,
which amendment or change is effective or such Administrative Action or decision
is announced, in each case, on or after the thirtieth day prior to the
Submission Deadline, there is more than an insubstantial risk that (x) if the
Junior Subordinated Debt Securities are held by or on behalf of the Trust, (i)
the Trust is, or will be within 90 days of the date of such opinion, subject to
the United States federal income tax with respect to interest accrued or
received on the Junior Subordinated Debt Securities or subject to more than a de
minimis amount of other taxes, duties or other governmental charges as
determined by such counsel, or (ii) any portion of interest payable by the
Corporation to the Trust on the Junior Subordinated Debt Securities is not, or
within 90 days of the date of such opinion will not be, deductible by the
Corporation in whole or in part for United States federal income tax purposes or
(y) with respect to Junior Subordinated Debt Securities which are no longer held
by or on behalf of the Trust, any portion of interest payable by the
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Corporation on the Junior Subordinated Debt Securities is not, or within 90 days
of the date of such opinion will not be, deductible by the Corporation in whole
or in part for United States federal income tax purposes.
" '40 Act Event" means the receipt by the Property Trustee of an opinion of
independent counsel rendered by a law firm having a recognized national
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority ("Change in Investment Company Law"), there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" which is required to be registered under the Investment Company Act,
which Change in Investment Company Law becomes effective or is announced,
enacted or promulgated on or after the thirtieth day prior to the Submission
Deadline.
"Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any rules or
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action, or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the thirtieth day prior to the
Submission Deadline Date, there is more than an insubstantial risk that the
Corporation will not be entitled to treat an amount equal to Liquidation Amount
of the Capital Securities as "Tier 1 Capital" (or the then equivalent thereof)
after the Rate Reset Date for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Corporation.
"Make-Whole Amount" will be equal to the greater of (i) 100% of the
principal amount of such Junior Subordinated Debt Securities or (ii) as
determined by the Quotation Agent (as defined herein), (a) the sum of the
present values of the principal amount and premium, if any, payable as part of
the Optional Redemption Price on such Junior Subordinated Debt Securities on
June 1, 2009, together with the present values of scheduled payments of interest
on such Junior Subordinated Debt Securities from the redemption date to June 1,
2009, in each case discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 100 basis points less (b) accrued and unpaid interest on such Junior
Subordinated Debt Securities to the date of redemption.
"Remaining Life" means (i) for purposes of determining the Maximum
Applicable Rate and the Full Participation Rate, the period beginning on the
Rate Reset Date and ending on the Stated Maturity date, and (ii) with respect to
an Optional Redemption or Special Event Redemption, the period beginning on the
applicable Redemption Date and ending on June 1, 2009.
"Treasury Rate" means (i) the yield, under the heading which represents the
average for the week immediately prior to the calculation date, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(as defined below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price (as defined below) for such redemption date, the Rate Reset
Pricing Date or the Rate Reset Date. The Treasury Rate shall be calculated on
the third Business Day preceding the redemption date, the Rate Reset Pricing
Date or the Rate Reset Date, as the case may be.
"Comparable Treasury Issue" means, with respect to any redemption date, the
Rate Reset Pricing Date, or the Rate Reset Date, as the case may be, the United
States Treasury security selected by the Quotation Agent as having a maturity
comparable to the Remaining Life that would be utilized, at the time of
selection
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and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the Remaining Life. If no
United States Treasury security has a maturity which is within a period from
three months before to three months after June 1, 2009 or the Stated Maturity,
as the case may be, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.
"Quotation Agent" means Initial Purchaser and its successors; provided,
however, that if the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the
Corporation shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Corporation.
"Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations (as defined below) for such Redemption Date, the Rate
Reset Pricing Date or the Rate Reset Date, as the case may be, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Debenture Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the Rate Reset Pricing Date
or the Rate Reset Date, as the case may be, the average, as determined by the
Debenture Trustee, of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such redemption date,
the Rate Reset Pricing Date or the Rate Reset Date, as the case may be.
ADDITIONAL SUMS
If the Trust is required to pay any additional taxes, duties or other
governmental charges (other than United States withholding taxes) as a result of
a Tax Event, the Corporation will pay as additional amounts on the Junior
Subordinated Debt Securities such amounts as shall be required so that the
Distributions payable by the Trust shall not be reduced as a result of any such
additional taxes, duties or other governmental charges. The Corporation has
covenanted in the Indenture that, if and so long as (i) the Trust is the holder
of all Junior Subordinated Debt Securities and (ii) a Tax Event in respect of
the Trust has occurred and is continuing, it will pay Additional Sums (as
defined under "Description of Exchange Capital Securities -- Mandatory
Redemption") in respect of such Trust Securities to the Trust.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation has also covenanted that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Corporation (including Other Debentures) that rank pari passu
with or junior in interest to the Junior Subordinated Debt Securities or (iii)
make any guarantee payments with respect to any guarantee by the Corporation of
the debt securities of any subsidiary of the Corporation (including under Other
Guarantees) if such guarantee ranks pari passu with or junior in interest to the
Junior Subordinated Debt Securities (other than (a) dividends or distributions
in common stock of the Corporation, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of capital stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto, (c) payments under the
Guarantee, (d) purchases or acquisitions of shares of the Corporation's common
stock in connection with the satisfaction by the Corporation of its obligations
under any employee benefit plan or any other contractual obligation of the
Corporation (other than a contractual obligation ranking pari passu with or
junior in interest to the Junior Subordinated Debt Securities), (e) as a result
of a reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for another
class or series of the
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Corporation's capital stock or (f) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged),
if at such time (i) there shall have occurred a Debenture Event of Default, (ii)
the Corporation shall be in default with respect to its payment of any
obligations under the Guarantee or (iii) the Corporation shall have given notice
of its election of an Extension Period as provided in the Indenture and shall
not have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
MODIFICATION OF INDENTURE
From time to time the Corporation and the Debenture Trustee may, without
the consent of the holders of Junior Subordinated Debt Securities, amend, waive
or supplement the Indenture for specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies (provided that any such
action does not materially adversely affect the interest of the holders of
Junior Subordinated Debt Securities or the holders of the Capital Securities so
long as they remain outstanding) and qualifying, or maintaining the
qualification of, the Indenture under the Trust Indenture Act. The Indenture
contains provisions permitting the Corporation and the Debenture Trustee, with
the consent of the holders of not less than a majority in principal amount of
Junior Subordinated Debt Securities, to modify the Indenture in a manner
affecting the rights of the holders of Junior Subordinated Debt Securities;
provided, however, that no such modification may, without the consent of the
holder of each outstanding Junior Subordinated Debt Security so affected, change
the Stated Maturity, or reduce the principal amount of the Junior Subordinated
Debt Securities, or reduce the rate or extend the time of payment of interest
thereon or reduce the percentage of principal amount of Junior Subordinated Debt
Securities, or have certain other effects as set forth in the Indenture.
In addition, the Corporation and the Debenture Trustee may execute, without
the consent of any holder of Junior Subordinated Debt Securities, any
supplemental Indenture for the purpose of creating any Other Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debt Securities that has occurred
and is continuing constitutes a "Debenture Event of Default":
(i) failure for 30 days to pay any interest on the Junior Subordinated
Debt Securities when due (subject to the deferral of any due date in the
case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the Junior
Subordinated Debt Securities when due, whether at maturity, upon
redemption, by declaration of acceleration or otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Corporation from the Debenture Trustee or the holders of at least
25% in aggregate outstanding principal amount of the Junior Subordinated
Debt Securities; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation; or
(v) the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of the
Junior Subordinated Debt Securities to the holders of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities of
the Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Debenture
Trustee. The Debenture Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of the Junior Subordinated Debt Securities may
declare the principal due and payable immediately upon a Debenture Event of
Default and, should the Debenture Trustee or such holders of Junior Subordinated
Debt Securities fail to make such declaration, the holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities may annul such declaration and
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waive the default if the default (other than the non-payment of the principal of
the Junior Subordinated Debt Securities which has become due solely by such
acceleration) has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee. Should the holders of Junior
Subordinated Debt Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities affected thereby may, on behalf of the
holders of all the Junior Subordinated Debt Securities, waive any past default,
except a default in the payment of principal of (or premium, if any) or interest
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee) or a default in respect of a covenant
or provision which under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Junior Subordinated Debt Security.
Should the holders of such Junior Subordinated Debt Securities fail to annul
such declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Capital Securities shall have such right. The
Corporation is required to file annually with the Debenture Trustee a
certificate as to whether or not the Corporation is in compliance with all the
conditions and covenants applicable to it under the Indenture.
In case a Debenture Event of Default shall occur and be continuing, the
Property Trustee will have the right to declare the principal of and the
interest on the Junior Subordinated Debt Securities, and any other amounts
payable under the Indenture, to be forthwith due and payable and to enforce its
other rights as a creditor with respect to the Junior Subordinated Debt
Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Corporation to pay interest or
principal on the Junior Subordinated Debt Securities on the date such interest
or principal is otherwise payable, a holder of Capital Securities may institute
a Direct Action. The Corporation may not amend the Indenture to remove the
foregoing right to bring a Direct Action without the prior written consent of
the holders of all of the Capital Securities. If the right to bring a Direct
Action is removed following the Exchange Offer, the Trust may become subject to
the reporting obligations under the Exchange Act. Notwithstanding any payments
made to a holder of Capital Securities by the Corporation in connection with a
Direct Action, the Corporation shall remain obligated to pay the principal of
and interest on the Junior Subordinated Debt Securities, and the Corporation
shall be subrogated to the rights of the holder of such Capital Securities with
respect to payments on the Capital Securities to the extent of any payments made
by the Corporation to such holder in any Direct Action.
The holders of the Capital Securities will not be able to exercise directly
any remedies, other than those set forth in the preceding paragraph, available
to the holders of the Junior Subordinated Debt Securities unless there shall
have been an Event of Default under the Declaration. See "Description of
Exchange Capital Securities -- Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Corporation shall not consolidate with or
merge with or into any other person or convey, transfer or lease its properties
and assets substantially as an entirety to any person, and no person shall
consolidate with or merge with or into the Corporation or convey, transfer or
lease its properties and assets substantially as an entirety to the Corporation,
unless (i) in case the Corporation consolidates with or merges with or into
another person or conveys or transfers its properties and assets substantially
as an entirety to any person, the successor person is organized under the laws
of the United States or any state or the District of Columbia, and such
successor person expressly assumes the Corporation's obligations on the Junior
Subordinated Debt Securities issued under the Indenture; (ii) immediately after
giving effect thereto, no Debenture Event of Default, and no event which, after
notice or lapse of time or both, would become a Debenture Event of Default,
shall have occurred and be continuing; (iii) if at the time any Capital
Securities
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are outstanding, such transaction is permitted under the Declaration and the
Guarantee and does not give rise to any breach or violation of the Declaration
or the Guarantee; and (iv) certain other conditions as prescribed in the
Indenture are met.
The general provisions of the Indenture do not afford holders of the Junior
Subordinated Debt Securities protection in the event of a highly leveraged or
other transaction involving the Corporation that may adversely affect holders of
the Junior Subordinated Debt Securities.
SUBORDINATION
In the Indenture, the Corporation has covenanted and agreed that any Junior
Subordinated Debt Securities issued thereunder shall be subordinate and junior
in right of payment to all Senior Debt to the extent provided in the Indenture.
Upon any payment or distribution of assets to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Corporation, the holders of Senior Debt will first
be entitled to receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the holders of Junior Subordinated
Debt Securities, or the Property Trustee on behalf of the holders, will be
entitled to receive or retain any payment or distribution in respect thereof.
In the event of the acceleration of the maturity of the Junior Subordinated
Debt Securities, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon (including any amounts due upon acceleration) before the holders of
the Junior Subordinated Debt Securities will be entitled to receive or retain
any payment in respect of the principal of or interest, if any, on the Junior
Subordinated Debt Securities.
In the event that the Corporation shall default in the payment of any
principal of (or premium, if any), or interest, if any, on any Senior Debt when
the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, unless and
until such default shall have been cured or waived or shall have ceased to exist
or all Senior Debt shall have been paid, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal or interest, if any, on the Junior Subordinated Debt
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Junior Subordinated Debt Securities.
"Senior Debt" means (a) the principal of, and premium, if any, and interest
on all indebtedness of the Corporation for money borrowed, whether outstanding
on the date of execution of the Indenture or thereafter created, assumed or
incurred, (b) all obligations to make payment pursuant to the terms of financial
instruments, such as (i) securities contracts and foreign currency exchange
contracts, (ii) derivative instruments, such as swap agreements (including
interest rate and foreign exchange rate swap agreements), cap agreements, floor
agreements, collar agreements, interest rate agreements, foreign exchange
agreements, options, commodity futures contracts and commodity options
contracts, and (iii) similar financial instruments; except, in the case of both
(a) and (b) above, such indebtedness and obligations that are expressly stated
to rank junior in right of payment to, or pari passu in right of payment with,
the Junior Subordinated Debt Securities, (c) and indebtedness or obligations of
others of the kind described in both (a) and (b) above for the payment of which
the Corporation is responsible or liable as guarantor or otherwise, and (d) any
deferrals, renewals or extensions of any such Senior Debt; provided, however,
that Senior Debt shall not be deemed to include (i) any Debt of the Corporation
which, when incurred and without respect to any election under Section 1111(b)
of the United States Bankruptcy Code of 1978, was without recourse to the
Corporation, (ii) any Debt of the Corporation to any of its subsidiaries, (iii)
Debt to any employee of the Corporation, (iv) Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such debt by the holders of the Junior Subordinated Debt Securities as a result
of the subordination provisions of the Indenture would be greater than such
payments otherwise would have been as a result of any obligation of such holders
of such debt to pay amounts over to the obligees on such trade accounts payable
or accrued liabilities arising in the
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ordinary course of business as a result of subordination provisions to which
such Debt is subject and (v) any other debt securities issued pursuant to the
Indenture.
"Debt" means (i) the principal of and premium, if any, and unpaid interest
on indebtedness for money borrowed, (ii) purchase money and similar obligations,
(iii) obligations under capital leases, (iv) guarantees, assumptions or purchase
commitments relating to, or other transactions as a result of which the
Corporation is responsible for the payment of such indebtedness of others, (v)
renewals, extensions and refunding of any such indebtedness, (vi) interest or
obligations in respect of any such indebtedness accruing after the commencement
of any insolvency or bankruptcy proceedings and (vii) obligations associated
with derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts and similar arrangements.
The Indenture places no limitation on the amount of Senior Debt that may be
incurred by the Corporation. The Corporation expects from time to time to incur
additional indebtedness constituting Senior Debt. At March 31, 1997, the
aggregate outstanding Senior Debt of the Corporation was approximately $834
million on an unconsolidated basis. The Indenture also places no limitation on
the indebtedness of the Corporation's subsidiaries, which rank senior in right
of payment to the Junior Subordinated Debt Securities. As of March 31, 1997, the
Corporation's subsidiaries had indebtedness and other liabilities of
approximately $44.9 billion.
RESTRICTIONS ON TRANSFER
The Junior Subordinated Debt Securities will be issued, and may be
transferred only, in blocks having aggregate principal amounts of $100,000 and
multiples of $100,000 in excess thereof. Any transfer, sale or other disposition
of Junior Subordinated Debt Securities in a block having a principal amount of
other than an integral multiple of $100,000 shall be deemed to be void and of no
legal effect whatsoever. Any such transferee shall be deemed not to be the
holder of such Junior Subordinated Debt Securities for any purpose, including
but not limited to the receipt of payments on such Junior Subordinated Debt
Securities, and such transferee shall be deemed to have no interest whatsoever
in such Junior Subordinated Debt Securities.
GOVERNING LAW
The Indenture and the Junior Subordinated Debt Securities are governed by
and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has been and is subject to all of the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Debenture Trustee is under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of any holder of Junior Subordinated Debt Securities, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The Debenture Trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
DESCRIPTION OF EXCHANGE GUARANTEE
The Old Guarantee was entered into by the Corporation concurrently with the
issuance by the Trust of the Capital Securities for the benefit of the holders
from time to time of such Capital Securities. As soon as practicable after the
date hereof, the Old Guarantee will be exchanged by the Corporation for the
Exchange Guarantee. The Exchange Guarantee has been qualified under the Trust
Indenture Act. This summary of certain provisions of the Guarantee does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Guarantee, including the definitions
therein of certain terms, and the Trust Indenture Act. The Guarantee Trustee
will hold the Guarantee for the benefit of the
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holders of the Capital Securities. The Exchange Guarantee is attached as an
exhibit to the Registration Statement.
GENERAL
The Corporation has agreed (and under the Exchange Guarantee will agree) to
pay in full on a subordinated basis, to the extent set forth herein, the
Guarantee Payments (as defined herein) to the holders of the Capital Securities,
as and when due, regardless of any defense, right of set-off or counterclaim
that the Trust may have or assert other than the defense of payment. The
following payments with respect to the Capital Securities, to the extent not
paid by or on behalf of the Trust (the "Guarantee Payments"), will be subject to
the Guarantee: (i) any accrued and unpaid Distributions required to be paid on
the Capital Securities, to the extent that the Trust has funds on hand available
therefor at such time, (ii) the applicable Redemption Price with respect to
Capital Securities called for redemption, to the extent that the Trust has funds
on hand available therefor at such time, and (iii) upon a voluntary or
involuntary dissolution, winding up or liquidation of the Trust (other than in
connection with the distribution of Junior Subordinated Debt Securities to the
holders of the Capital Securities or the redemption of all of the Capital
Securities) the lesser of (a) the Liquidation Distribution, to the extent the
Trust has funds available therefor and (b) the amount of assets of the Trust
remaining available for distribution to holders of the Capital Securities upon
liquidation of the Trust after satisfaction of liabilities to creditors of the
Trust as required by applicable law. The Corporation's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Corporation to the holders of the Capital Securities or by causing the Trust
to pay such amounts to such holders.
The Guarantee is an irrevocable guarantee on a subordinated basis of the
Trust's obligations under the Capital Securities, although it will apply only to
the extent that the Trust has funds sufficient to make such payments, and is not
a guarantee of collection. If the Corporation does not make interest payments on
the Junior Subordinated Debt Securities held by the Trust, the Trust will not be
able to pay Distributions on the Capital Securities and will not have funds
legally available therefor.
The Guarantee ranks subordinate and junior in right of payment to all
Senior Debt. See "-- Status of the Guarantee." Because the Corporation is a
holding company, the right of the Corporation to participate in any distribution
of assets of any subsidiary, upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of the holders of Capital
Securities to benefit indirectly from any such distribution), is subject to the
prior claims of creditors of such subsidiary, except to the extent the
Corporation may itself be recognized as a creditor of that subsidiary. The
Corporation is also subject to restrictions under federal law which limit the
transfer of funds to the Corporation and its nonbanking subsidiaries, whether in
the form of loans, extensions of credit, investments, asset purchases or
otherwise. Such transfers by the Corporation's subsidiaries to the Corporation
or any of the Corporation's nonbanking subsidiaries are limited in amount and
furthermore, such loans and extensions of credit are required to be secured in
specified amounts. Accordingly, the Corporation's obligations under the
Guarantee will be effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries, including deposits, and claimants
should look only to the assets of the Corporation for payments thereunder. See
"National City." The Guarantee does not limit the incurrence or issuance of
other secured or unsecured debt of the Corporation, including Senior Debt,
whether under the Indenture, any other indenture that the Corporation may enter
into in the future or otherwise.
Payment of dividends by the Corporation's bank subsidiaries is restricted
by various legal and regulatory limitations. At March 31, 1997, approximately
$558 million was available for payment of dividends to the Corporation from the
Corporation's bank subsidiaries without prior regulatory approval.
Taken together, the Corporation's obligations under the Guarantee, the
Declaration, the Junior Subordinated Debt Securities and the Indenture,
including the Corporation's obligation to pay the costs, expenses and other
liabilities of the Trust (other than the Trust's obligations to the holders of
the Trust Securities under the Trust Securities), provide, in the aggregate, a
full and unconditional guarantee, to the extent described herein, of all of the
Trust's obligations under the Capital Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined
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operation of these documents that has the effect of providing a full and
unconditional guarantee, to the extent described herein, of the Trust's
obligations under the Capital Securities. See "Relationship Among the Capital
Securities, the Junior Subordinated Debt Securities and the Guarantee."
STATUS OF THE GUARANTEE
The Guarantee constitutes an unsecured obligation of the Corporation and
ranks subordinate and junior in right of payment to all Senior Debt in the same
manner as Junior Subordinated Debt Securities.
The Guarantee ranks pari passu with all Other Guarantees issued by the
Corporation. The Guarantee constitutes a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Corporation to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity). The
Guarantee is held for the benefit of the holders of the Capital Securities. The
Guarantee will not be discharged except by payment of the Guarantee Payments in
full to the extent not paid by the Trust or upon distribution to the holders of
the Capital Securities of the Junior Subordinated Debt Securities. The Guarantee
does not place a limitation on the amount of additional Senior Debt that may be
incurred by the Corporation. The Corporation expects from time to time to incur
additional indebtedness constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the Capital Securities (in which case no vote will be
required), the Guarantee may not be amended without the prior approval of the
holders of not less than a majority of the aggregate Liquidation Amount of such
outstanding Capital Securities. The manner of obtaining any such approval will
be as set forth under "Description of Exchange Capital Securities -- Voting
Rights; Amendment of the Declaration." All guarantees and agreements contained
in the Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the holders
of the Capital Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Corporation to perform any of its payment or other obligations thereunder;
provided, however, that except with respect to a default in payment of any
Guarantee Payment, the Corporation shall have received notice of default and
shall not have cured such default within 60 days after receipt of such notice.
The holders of not less than a majority in aggregate Liquidation Amount of the
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Corporation in performance of the Guarantee, undertakes to
perform only such duties as are specifically set forth in the Guarantee and,
after default with respect to the Guarantee, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by the
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Guarantee at the request of any holder of the Capital Securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities that
might be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the Capital Securities, upon full
payment of the amounts payable upon liquidation of the Trust or upon
distribution of Junior Subordinated Debt Securities to the holders of the
Capital Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Capital
Securities must restore payment of any sums paid under the Capital Securities or
the Guarantee.
GOVERNING LAW
The Old Guarantee is and the Exchange Guarantee will be governed by and
construed in accordance with the laws of the State of New York.
DESCRIPTION OF OLD SECURITIES
The terms of the Old Securities are identical in all material respects to
the Exchange Securities, except that (i) the Old Securities have not been
registered under the Securities Act, are subject to certain restrictions on
transfer and are entitled to certain rights under the Registration Agreement
(which rights will terminate upon consummation of the Exchange Offer, except
under limited circumstances); and (ii) the Exchange Capital Securities will not
provide for any increase in the Distribution rate thereon. The Old Securities
provided that, in the event that the Exchange Offer is not consummated on or
prior to December 3, 1997, or in certain limited circumstances, in the event a
shelf registration statement (the "Shelf Registration Statement") with respect
to the resale of the Old Capital Securities is not declared effective on or
prior to December 3, 1997, the interest rate borne by the Old Junior
Subordinated Debt Securities would increase by 0.25% per annum, and the
Distribution rate borne by the Old Capital Securities would increase by 0.25%
per annum, each commencing on December 4, 1997 until the time the Exchange Offer
is consummated or any required Shelf Registration Statement is declared
effective, as the case may be. The aggregate amount of such additional interest
and Distributions payable pursuant to the foregoing provisions will in no event
exceed 0.50% per annum. The holders of Exchange Securities are not, and upon
consummation of the Exchange Offer the holders of Old Securities will not be,
entitled to any such additional interest or Distributions. Accordingly, holders
of the Old Capital Securities should review the information set forth under
"Risk Factors -- Consequences of a Failure to Exchange Old Capital Securities"
and "Description of Exchange Capital Securities."
RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital Securities
(to the extent the Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Corporation as and to the
extent set forth under "Description of Exchange Guarantee." Taken together, the
Corporation's obligations under the Junior Subordinated Debt Securities, the
Indenture, the Declaration and the Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee, to the extent described herein, of
payments of Distributions and other amounts due on the Capital Securities. No
single document standing alone or operating in conjunction with fewer than all
of the other documents constitutes such guarantee. It is only the combined
operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee, to the extent described herein, of the
Trust's obligations under the Trust Securities. If and to the extent that the
Corporation does not make payments on the Junior Subordinated Debt Securities,
the Trust will not pay Distributions or other amounts due on the Capital
Securities. The Guarantee does not cover payment of Distributions when the Trust
does not have sufficient funds to pay such Distributions. In
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such event, the remedy of a holder of Capital Securities is to institute a
Direct Action. The obligations of the Corporation under the Guarantee are
subordinate and junior in right of payment to all Senior Debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debt Securities, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because (i) the aggregate principal amount or applicable Redemption Price of the
Junior Subordinated Debt Securities will be equal to the sum of the aggregate
Liquidation Amount or applicable Redemption Price, as applicable, of the Trust
Securities; (ii) the Applicable Rate and interest and other payment dates on the
Junior Subordinated Debt Securities will match the Distribution Date and other
payment dates for the Capital Securities; (iii) the Corporation shall pay for
all costs, expenses and liabilities of the Trust except the Trust's obligations
to holders of Trust Securities under such Trust Securities; and (iv) the
Declaration further provides that the Trust will not engage in any activity that
is not consistent with the limited purposes thereof.
Notwithstanding anything to the contrary in the Indenture, the Corporation
has the right to set off any payment it is otherwise required to make thereunder
with and to the extent the Corporation has theretofore made, or is concurrently
on the date of such payment making any payment under Guarantee used to satisfy
the related payment of indebtedness under the Indenture.
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding directly
against the Corporation to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee, the Trust or any
other person or entity.
A default or event of default under any Senior Debt would not constitute a
default or Event of Default under the Declaration. However, in the event of
payment defaults under, or acceleration of, Senior Debt, the subordination
provisions of the Indenture provide that no payments may be made in respect of
the Junior Subordinated Debt Securities until such Senior Debt has been paid in
full or any payment default thereunder has been cured or waived. Failure to make
required payments on Junior Subordinated Debt Securities would constitute an
Event of Default under the Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities evidence a beneficial interest in the Trust, and the
Trust exists for the sole purpose of issuing the Capital Securities and the
Common Securities investing the proceeds of the Trust Securities in Junior
Subordinated Debt Securities, exchanging the Junior Subordinated Debt Securities
and Capital Securities in the Exchange Offer pursuant to the Indenture and
engaging in other activities necessary or incidental thereto.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
the Trust involving the liquidation of the Junior Subordinated Debt Securities,
after satisfaction of the liabilities of creditors of the Trust as required by
applicable law, the holders of the Trust Securities will be entitled to receive,
out of assets held by the Trust, the Liquidation Distribution in cash. See
"Description of Exchange Capital Securities -- Liquidation of the Trust and
Distribution of Junior Subordinated Debt Securities." Upon any voluntary or
involuntary liquidation or bankruptcy of the Corporation, the Property Trustee,
as holder of the Junior Subordinated Debt Securities, would be a subordinated
creditor of the Corporation, subordinated in right of payment to all Senior Debt
as set forth in the Indenture, but entitled to receive payment in full of
principal and interest, before any stockholders of the Corporation receive
payments or distributions. Since the Corporation is the guarantor under the
Guarantee and has agreed to pay for all costs, expenses and liabilities of the
Trust (other than the Trust's obligations to the holders of its Trust
Securities), the positions of a holder of Capital Securities and a holder of
Junior Subordinated Debt Securities relative to other creditors and to
stockholders
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of the Corporation in the event of liquidation or bankruptcy of the Corporation
are expected to be substantially the same.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Cravath, Swaine & Moore, special counsel to the Company
and the Trust ("Tax Counsel"), the following are the material United States
federal income tax consequences of the ownership and disposition of Capital
Securities. This summary only addresses the tax consequences to a person that
acquires Capital Securities on their original issuance from the Initial
Purchaser at their original offering price and that is (i) an individual citizen
or resident of the United States, (ii) a corporation or other entity taxable as
a corporation organized in or under the laws of the United States or any state
thereof or the District of Columbia or (iii) an estate or trust the income of
which is subject to United States federal income tax regardless of its source
(an "Initial Holder"). This summary does not address all tax consequences that
may be applicable to an Initial Holder that is a beneficial owner of Capital
Securities, nor does it address the tax consequences to (i) persons that may be
subject to special treatment under United States federal income tax law (such as
banks, insurance companies, thrift institutions, regulated investment companies,
real estate investment trusts, tax-exempt organizations and dealers in
securities or currencies), (ii) persons that will hold Capital Securities as
part of a straddle or as part of a hedging or conversion transaction or other
integrated investment transaction for federal income tax purposes, (iii) persons
whose functional currency is not the United States dollar or (iv) persons that
do not hold Capital Securities as capital assets.
This summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury Regulations, Internal Revenue Service rulings and
pronouncements and judicial decisions now in effect, all of which are subject to
change (possibly on a retroactive basis), or different interpretation. In
particular, legislation has been proposed that could adversely affect the
Corporation's ability to deduct interest on Junior Subordinated Debt Securities,
which may in turn permit the Corporation to cause a redemption of the Capital
Securities but only after the Rate Reset Date.
INVESTORS ARE ADVISED TO CONSULT THEIR TAX ADVISORS AS TO THE UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES OF THE OWNERSHIP AND DISPOSITION OF CAPITAL
SECURITIES IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF
ANY STATE, LOCAL OR OTHER TAX LAWS.
CLASSIFICATION OF THE TRUST
In the opinion of Tax Counsel, under current law and assuming full
compliance with the terms of the Declaration, the Trust will be classified for
United States federal income tax purposes as a grantor trust and not as a
partnership or an association taxable as a corporation. Accordingly, each holder
of Capital Securities (a "Securityholder") will be considered the owner of a pro
rata portion of the Junior Subordinated Debt Securities held by the Trust and
will be required to include in gross income the pro rata share of income accrued
on the Junior Subordinated Debt Securities.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
In the opinion of Tax Counsel, under current law and assuming full
compliance with the Indenture, the Junior Subordinated Debt Securities will be
classified for United States federal income tax purposes as indebtedness of the
Corporation.
EXCHANGE OFFER
The exchange of the Old Capital Securities for Exchange Capital Securities
should not be treated as a taxable exchange for United States federal income tax
purposes. As a result, Securityholders should not recognize any taxable gain or
loss or any interest income as a result of exchanging their Old Capital
Securities. Furthermore, a Securityholder's adjusted tax basis and holding
period in the Exchange Capital Securities
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should generally equal the Securityholder's adjusted tax basis and holding
period, respectively, in the Old Capital Securities.
INTEREST AND ORIGINAL ISSUE DISCOUNT
The Corporation believes, and will take the position, that the Junior
Subordinated Debt Securities will be considered to be issued without "original
issue discount" ("OID") for United States federal income tax purposes based on
applicable Treasury Regulations. Tax Counsel believes that this position is
correct although there is no authority directly on point and the Treasury
Regulations are not completely clear. As a result, the Internal Revenue Service
might take a contrary position and the Junior Subordinated Debt Securities could
be deemed to be issued initially with OID. Moreover, if an Extension Period
occurs, the Junior Subordinated Debt Securities would, in any event, be
considered to have OID at all times after the beginning of the first Extension
Period, including after the termination of the Extension Period. If the OID
rules do not apply, stated interest will be includable in an Initial Holder's
gross income as ordinary interest income in accordance with such Initial
Holder's regular method of tax accounting.
If the OID rules apply to the Junior Subordinated Debt Securities (either
following the occurrence of an Extension Period or initially), each
Securityholder, whether on the cash or accrual method of accounting, will be
required to accrue its pro rata share of OID into income in accordance with a
constant yield method based on the compounding of interest. As a result, income
will be required to be reported by Securityholders before the receipt of cash
attributable to such income, and, in particular, income will be reported during
an Extension Period even though no cash distributions are being made. If the OID
rules apply for a period during which cash distributions are currently being
made, either before or after the Rate Reset Date, the sum of the daily accruals
of income for a semi-annual period for a Securityholder that purchased the
Capital Securities for their liquidation value will equal the cash distribution
received by the Securityholder for such semi-annual period, assuming no
disposition prior to the record date for such distribution.
If the OID rules apply, actual distributions of stated interest will not be
separately reported as income. A Securityholder's tax basis for the Junior
Subordinated Debt Securities will be increased by OID accrued into income, and
decreased by cash distributions of interest.
Whether or not the OID rules apply, no portion of the amounts received on
the Capital Securities will be eligible for the corporate dividends received
deduction.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF
THE TRUST
Under current law, a distribution by the Trust of the Junior Subordinated
Debt Securities as described under the caption "Description of Exchange Capital
Securities -- Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities" will be non-taxable and will result in the Securityholder
receiving directly such Securityholder's pro rata share of the Junior
Subordinated Debt Securities previously held indirectly through the Trust, with
a holding period and tax basis equal to the holding period and adjusted tax
basis such Securityholder was considered to have had in such Securityholder's
pro rata share of the underlying Junior Subordinated Debt Securities immediately
prior to such distribution. If, however, the special event giving rise to the
distribution is a Tax Event which results in the Trust being treated as an
association taxable as a corporation, the distribution would constitute a
taxable event to holders of the Capital Securities.
DISPOSITION OF THE CAPITAL SECURITIES
Upon a sale, exchange or other disposition of the Capital Securities
(including a distribution of cash in redemption of a Securityholder's Capital
Securities upon redemption or repayment of the underlying Junior Subordinated
Debt Securities, but excluding the distribution of Junior Subordinated Debt
Securities), a Securityholder will be considered to have disposed of all or part
of such Securityholder's pro rata share of the Junior Subordinated Debt
Securities, and will recognize gain or loss equal to the difference between the
amount realized (other than amounts attributable to accrued but unpaid stated
interest that is not treated as OID) and the Securityholder's adjusted tax basis
in such Securityholder's pro rata share of the underlying Junior Subordinated
Debt Securities deemed disposed of. A holder's adjusted tax basis in the Capital
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Securities generally will be its initial purchase price increased by OID
previously includable in such holder's gross income to the date of disposition
and decreased by payments (other than payments of stated interest that are not
treated as OID) received on the Capital Securities. Gain or loss will be capital
gain or loss (except to the extent of any accrued interest or market discount
not previously included in income). Such gain or loss will be long-term capital
gain or loss if the Capital Securities have been held for more than one year.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Payments made on, and proceeds from sale of, Capital Securities may be
subject to a "backup" withholding tax of 31% unless the holder complies with
certain identification requirements. Any withheld amounts will generally be
allowed as a credit against the holder's federal income tax, provided the
required information is timely filed with the Internal Revenue Service. Payment
of the proceeds from the disposition of Capital Securities to or through a
United States office or broker is subject to information reporting and backup
withholding unless the security holder establishes an exemption from information
reporting and backup withholding. The Trust will report the interest paid or any
OID that accrued during the year with respect to the Junior Subordinated Debt
Securities, and any gross proceeds received by the Trust from the retirement or
redemption of the Junior Subordinated Debt Securities, annually to the holders
of record of the Capital Securities and the Internal Revenue Service. The Trust
currently intends to deliver such reports to holders of record prior to January
31 following each calendar year.
POSSIBLE TAX LAW CHANGES
On February 6, 1997, the revenue portion of President Clinton's fiscal year
1998 budget proposal (the "Budget Proposal") was released. If enacted, the
Budget Proposal would generally deny interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 15 years
and that is not shown as indebtedness on the separate balance sheet of the
issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the Corporation's consolidated
balance sheet. The above described provision of the Budget Proposal is proposed
to be effective generally for instruments issued on or after the date of first
Congressional committee action. No such action has yet occurred and neither the
House of Representatives nor the Senate has included the above described
provision of the Budget Proposal in the revenue provisions of H.R. 2014 (as
approved by the House of Representatives on June 26, 1997 and by the Senate on
June 27, 1997). If the above described provision were to apply to the Junior
Subordinated Debt Securities, the Corporation would be unable to deduct interest
on the Junior Subordinated Debt Securities. Under current law, the Corporation
will be able to deduct interest on the Junior Subordinated Debt Securities.
There can be no assurance, however, that current or future legislative proposals
or final legislation will not affect the ability of the Corporation to deduct
interest on the Junior Subordinated Debt Securities. Such a change could give
rise to a Tax Event, which, after the Rate Reset Date, may permit the
Corporation to cause a redemption of the Capital Securities, as described more
fully under "Description of the Exchange Capital Securities -- Mandatory
Redemption" and "Description of Exchange Junior Subordinated Debt Securities --
Redemption -- Tax Event, '40 Act Event and Capital Treatment Event Redemption."
CERTAIN ERISA CONSIDERATIONS
Each fiduciary of an employee benefit or other plan (a "Plan") subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), should consider the fiduciary standards of ERISA in the context of
the Plan's particular circumstances before authorizing an investment in the
Capital Securities. Accordingly, among other factors, the fiduciary should
consider whether the investment would satisfy the prudence and diversification
requirements of ERISA and would be consistent with the documents and instruments
governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well
as individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or "disqualified
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persons" under the Code ("Parties in Interest") with respect to such Plan. A
violation of these "prohibited transaction" rules may result in an excise tax or
other liabilities under ERISA and/or Section 4975 of the Code for such persons,
unless exemptive relief is available under an applicable statutory or
administrative exemption. Employee benefit plans that are governmental plans (as
defined in Section 3(32) of ERISA), certain church plans (as defined in Section
3(33) of ERISA) and foreign plans (as described in Section 4(b)(5) of ERISA) are
not subject to the requirements of ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in the Trust
and no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the
assets of the Trust would not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interest in the Trust
were held by Plans, other employee benefit plans not subject to ERISA or Section
4975 of the Code (such as governmental, church and foreign plans) and entities
holding assets deemed to be "plan assets" of any Plan (collectively, "Benefit
Plan Investors"). No assurance can be given by the Initial Purchaser that the
value of the Capital Securities held by Benefit Plan Investors will be less than
25% of the total value of such Capital Securities at the completion of the
Offering or thereafter, and no monitoring or other measures will be taken with
respect to the satisfaction of the conditions to this exception. All of the
Common Securities will be purchased and held directly or indirectly by the
Corporation.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Capital Securities were acquired with "plan
assets" of such Plan and assets of the Trust were deemed to be "plan assets" of
Plans investing in the Trust. For example, if the Corporation is a Party in
Interest with respect to an investing Plan (either directly or by reason of its
ownership of the Trust or of any of the Corporation's other subsidiaries),
extensions of credit between the Corporation and the Trust (as represented by
the Junior Subordinated Debt Securities and the Guarantee) would likely be
prohibited by Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the
Code, unless exemptive relief were available under an applicable administrative
exemption (see below).
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief for direct or indirect prohibited transactions
resulting from the purchase or holding of the Capital Securities, assuming that
assets of the Trust were deemed to be "plan assets" of Plans investing in the
Trust (see above). Those class exemptions are PTCE 96-23 (for certain
transactions determined by in-house asset managers), PTCE 95-60 (for certain
transactions involving insurance company general accounts), PTCE 91-38 (for
certain transactions involving bank collective investment funds), PTCE 90-1 (for
certain transactions involving insurance company pooled separate accounts) and
PTCE 84-14 (for certain transactions determined by independent qualified
professional asset managers).
Because the Capital Securities may be deemed to be equity interests in the
Trust for purposes of applying ERISA and Section 4975 of the Code, the Capital
Securities may not be purchased or held by any Plan, any entity whose underlying
assets include "plan assets" by reason of any Plan's investment in the entity (a
"Plan Asset Entity") or any person investing "plan assets" of any Plan, unless
such purchaser or holder is eligible for the exemptive relief available under
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14. Any purchaser or holder of the Capital
Securities or any interest therein will be deemed to have represented by its
purchase and holding thereof that it either (a) is not a Plan or a Plan Asset
Entity and is not purchasing such securities on behalf of or with "plan assets"
of any Plan or (b) is eligible for the exemptive relief available under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14 with respect to such purchase or holding.
Furthermore, to avoid certain prohibited transactions under ERISA and the Code
that could result under certain circumstances if the Capital
72
<PAGE> 82
Securities are deemed to be such equity interests, each investing Plan, by
purchasing the Capital Securities, will be deemed to have directed the Trust to
invest in the Junior Subordinated Debentures and to have appointed the Property
Trustee.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is particularly
important that fiduciaries or other persons considering purchasing the Capital
Securities on behalf of or with "plan assets" of any Plan consult with their
counsel regarding the potential consequences if the assets of the Trust were
deemed to be "plan assets" and the availability of exemptive relief under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14.
PLAN OF DISTRIBUTION
Each Participating Broker-Dealer that receives Exchange Capital Securities
for its own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Capital
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a Participating Broker-Dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
Based on the position taken by the staff of the Division of Corporation Finance
of the Commission in certain interpretive letters, the Corporation and the Trust
believe that Participating Broker-Dealers, may fulfill their prospectus delivery
requirements with respect to the Exchange Capital Securities received upon
exchange of such Old Capital Securities with a prospectus meeting the
requirements of the Securities Act, which may be the prospectus prepared for an
exchange offer so long as it contains a description of the plan of distribution
with respect to the resale of such Exchange Capital Securities. Accordingly,
this Prospectus, as it may be amended or supplemented from time to time, may be
used by a Participating Broker-Dealer during the period referenced below in
connection with resales of Exchange Capital Securities received in exchange for
Old Capital Securities where such Old Capital Securities were acquired by such
Participating Broker-Dealer as a result of market-making activities or other
trading activities subject to certain provisions set forth in the Registration
Agreement. The Corporation and the Trust have agreed that, starting on the
Expiration Date and ending on the close of business on the first anniversary
following the Expiration Date, or, if earlier, when all such Exchange Capital
Securities have been disposed of by such Participating Broker-Dealer, this
Prospectus, as amended or supplemented from time to time, may be used by a
Participating Broker-Dealer in connection with resale of such Exchange Capital
Securities. Any person, including any Participating Broker-Dealer, who is an
Affiliate may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. In addition, until , 1997,
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.
The Corporation and the Trust will not receive any proceeds from any sale
of Exchange Capital Securities by Participating Broker-Dealers. Exchange Capital
Securities received by Participating Broker-Dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the Exchange Capital Securities or a combination of
such methods of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or at negotiated prices. Any
such resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or concessions
from any such broker-dealer and/or the purchasers of any such Exchange Capital
Securities. Any broker-dealer that resells Exchange Capital Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Capital
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit of any such resale of Exchange Capital Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a Participating Broker-Dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
73
<PAGE> 83
For a period of one year after the Expiration Date, the Trust and the
Corporation will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Participating Broker-Dealer
that requests such documents in the Letter of Transmittal. The Corporation and
the Trust have agreed to pay all expenses incident to the Exchange Offer
(including the expenses of one counsel for the holders of the Old Capital
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the holders of the Old Capital Securities (including any
Participating Broker-Dealers) against certain liabilities, including liabilities
under the Securities Act.
VALIDITY OF EXCHANGE SECURITIES
Certain matters of Delaware law relating to the validity of the Exchange
Capital Securities will be passed upon by Potter Anderson & Corroon, special
Delaware counsel to the Corporation and the Trust. The validity of the Exchange
Guarantee and the Exchange Junior Subordinated Debt Securities will be passed
upon for the Corporation by Jones, Day, Reavis & Pogue.
INDEPENDENT AUDITORS
The consolidated financial statements of National City Corporation at
December 31, 1996 and 1995, and for each of the three years in the period ended
December 31, 1996 incorporated by reference in this Prospectus have been audited
by Ernst & Young LLP, independent auditors, as set forth in their reports
incorporated by reference elsewhere herein which, as to the years 1995 and 1994,
are based in part on the reports of Coopers & Lybrand LLP, independent auditors.
The financial statements referred to above are included in reliance upon such
reports given upon the authority of such firms as experts in accounting and
auditing.
74
<PAGE> 84
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") empowers a Delaware corporation to indemnify any person who was or is,
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 such corporation, by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise). The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify such persons in actions brought
by or in the right of the corporation to procure a judgment in its favor under
the same conditions, except that no indemnification is permitted in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and to the extent the Court of Chancery of
the State of Delaware or the court in which such action or suit was brought
shall determine upon application that, in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or other such court shall deem proper. To the
extent such person has been successful on the merits or otherwise in defense of
any action referred to above, or in defense of any claim, issue or matter
therein, the corporation must indemnify him against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. The indemnification and advancement of expenses provided for, or
granted pursuant to, Section 145 are not exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise. Section 145 also provides that a corporation may maintain insurance
against liabilities for which indemnification is not expressly provided by the
statute.
Article VI of National City's First Restatement of By-Laws provides for the
mandatory indemnification of directors, officers or employees of National City
or any of its subsidiaries and of those persons serving at the request of
National City as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise in accordance with and to
the full extent permitted by the DGCL. National City has purchased liability
insurance covering certain liabilities which may be incurred by the directors,
officers, employees and agents of National City and its subsidiaries in
connection with the performance of their duties.
In addition, National City's Restated Certificate of Incorporation (the
"Certificate"), as permitted by Section 102(d) of the DGCL, limits directors'
liability to National City and its stockholders by eliminating liability in
damages for breach of fiduciary duty of care. Article Seventh of the Certificate
provides that neither National City nor its stockholders may recover damages
from National City's directors or former directors for breach of their duty of
care in the performance of their duties as directors of National City. As
limited by Section 102(b) of the DGCL, this provision cannot, however, have the
effect of indemnifying any director or former director of National City in the
case of liability (a) for a breach of the director's duty of loyalty, (b) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) for unlawful payments of dividends or unlawful
stock repurchases or redemptions as provided in Section 174 of the DGCL or (d)
for any transactions for which the director derived an improper personal
benefit.
Under the Amended and Restated Declaration of Trust, National City, as
depositor of the Trust, has agreed (i) to indemnify and hold harmless each
Issuer Trustee and any employee or agent of the Trust or its Affiliates from and
against any loss, damage, liability, tax, penalty, expense or claim of any kind
or nature
II-1
<PAGE> 85
whatsoever incurred by such person by reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by such
person in good faith on behalf of the Trust and in a manner such person
reasonably believes to be within the scope of authority conferred on such person
by the Declaration, except that no person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such person by reason of
negligence or willful misconduct with respect to such acts or omissions, and
(ii) to advance expenses (including legal fees) incurred by such person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand, action, suit or
proceeding.
ITEM 21. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ -----------------------------------------------------------------------------------
<S> <C>
4.1 Junior Subordinated Debt Securities Indenture, dated as of June 6, 1997, between
National City Corporation and The Bank of New York, as Debenture Trustee
4.2 Certificate of Trust, dated May 29, 1997, of National City Capital Trust I
4.3 Trust Agreement, dated May 29, 1997, of National City Capital Trust I
4.4 Amended and Restated Declaration of Trust, dated as of June 6, 1997, of National
City Capital Trust I
4.5 Auction Agency Agreement, dated as of June 6, 1997, between National City
Corporation and The Bank at New York
4.6 Remarketing Agreement, dated as of June 6, 1997, between National City Corporation
and UBS Securities LLC
4.7 Form of Capital Security Certificate for National City Capital Trust I (included in
Exhibit 4.4)
4.8 Form of Exchange Guarantee Agreement for the benefit of the holders of the Trust
Securities
4.9 Form of Junior Subordinated Debt Security (included in Exhibit 4.1)
4.10 Registration Agreement, dated as of June 6, 1997, among National City Corporation,
National City Capital Trust I and UBS Securities LLC
*5.1 Opinion of Jones, Day, Reavis & Pogue as to validity of the Exchange Junior
Subordinated Debt Securities and the Exchange Guarantee to be issued by National
City Corporation
5.2 Opinion of Potter Anderson & Corroon, special Delaware counsel, as to validity of
the Exchange Capital Securities to be issued by National City Capital Trust I
8 Opinion of Cravath, Swaine & Moore as to certain federal income tax matters
12 Statement re: Computation of Consolidated Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Coopers & Lybrand LLP
*23.3 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.4 Consent of Potter Anderson & Corroon (included in Exhibit 5.2)
23.5 Consent of Cravath, Swaine & Moore (included in Exhibit 8)
24 Powers of Attorney
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Junior Subordinated Debt Securities Indenture
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Declaration of Trust
25.3 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Exchange Guarantee Agreement
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
</TABLE>
- ---------------
* To be filed by amendment.
II-2
<PAGE> 86
ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of a
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) which 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of a Registrant
pursuant to the foregoing provisions, or otherwise, each of the Registrants has
been advised that in the opinion of the 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 payment by a Registrant of expenses incurred or paid
by a director, officer or controlling person of a 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, such
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the Prospectus
pursuant to Item 4, 10(b), 11 or 13 of this form, within one Business Day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the Registration Statement
through the date of responding to the request.
Each of the undersigned Registrants hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-3
<PAGE> 87
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
NATIONAL CITY CORPORATION HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF CLEVELAND, OHIO ON JULY 21, 1997.
NATIONAL CITY CORPORATION
By: /s/ DAVID L. ZOELLER
------------------------------------
David L. Zoeller
Senior Vice President,
General Counsel and Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------- ---------------------
<S> <C> <C>
/s/ DAVID A. DABERKO Chairman of the Board July 21, 1997
- ---------------------------------------- and Chief Executive
DAVID A. DABERKO Officer
/s/ ROBERT G. SIEFERS Executive Vice President, July 21, 1997
- ---------------------------------------- Chief Financial Officer
ROBERT G. SIEFERS (Principal Financial
Officer)
/s/ THOMAS A. RICHLOVSKY Senior Vice President and July 21, 1997
- ---------------------------------------- Treasurer
THOMAS A. RICHLOVSKY (Principal Accounting
Officer)
- ---------------------------------------- Director
SANDRA H. AUSTIN
* Director July 21, 1997
- ----------------------------------------
CHARLES H. BOWMAN
Director
- ----------------------------------------
EDWARD B. BRANDON
* Director July 21, 1997
- ----------------------------------------
JOHN G. BREEN
Director
- ----------------------------------------
JAMES S. BROADHURST
* Director July 21, 1997
- ----------------------------------------
DUANE E. COLLINS
* Director July 21, 1997
- ----------------------------------------
DAVID A. DABERKO
* Director July 21, 1997
- ----------------------------------------
DANIEL E. EVANS
</TABLE>
II-4
<PAGE> 88
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------- ---------------------
<S> <C> <C>
* Director July 21, 1997
- ----------------------------------------
OTTO N. FRENZEL III
Director
- ----------------------------------------
BERNADINE P. HEALY, M.D.
Director
- ----------------------------------------
JOSEPH H. LEMIEUX
* Director July 21, 1997
- ----------------------------------------
W. BRUCE LUNSFORD
Director
- ----------------------------------------
A. STEVEN MILES
* Director July 21, 1997
- ----------------------------------------
ROBERT A. PAUL
* Director July 21, 1997
- ----------------------------------------
WILLIAM R. ROBERTSON
Director
- ----------------------------------------
WILLIAM F. ROEMER
Director
- ----------------------------------------
MICHAEL A. SCHULER
* Director July 21, 1997
- ----------------------------------------
STEPHEN A. STITLE
Director
- ----------------------------------------
MORRY WEISS
</TABLE>
* David L. Zoeller, by signing his name hereto, signs this document on behalf of
each of the persons indicated by an asterisk above pursuant to powers of
attorney duly executed by such persons and filed herewith with the Securities
and Exchange Commission.
July 21, 1997 By: /s/ DAVID L. ZOELLER
------------------------------------
David L. Zoeller, Attorney-in-fact
II-5
<PAGE> 89
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
NATIONAL CITY CAPITAL TRUST I, HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF CLEVELAND, OHIO ON JULY 21, 1997.
National City Capital Trust I
By: /s/ DAVID J. LUCIDO
------------------------------------
David J. Lucido
Administrative Trustee
By: /s/ NIKOLITSA HARTOFILLIS
------------------------------------
Nikolitsa Hartofillis
Administrative Trustee
II-6
<PAGE> 90
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
- -------- -----------------------------------------------------------------------------------
<S> <C>
4.1 Junior Subordinated Debt Securities Indenture, dated as of June 6, 1997, between
National City Corporation and The Bank of New York, as Debenture Trustee
4.2 Certificate of Trust, dated May 29, 1997, of National City Capital Trust I
4.3 Agreement of Trust, dated May 29, 1997, of National City Capital Trust I
4.4 Amended and Restated Declaration of Trust, dated as of June 6, 1997, of National
City Capital Trust I
4.5 Auction Agency Agreement, dated as of June 6, 1997, between National City
Corporation and The Bank at New York
4.6 Remarketing Agreement, dated as of June 6, 1997, between National City Corporation
and UBS Securities LLC
4.7 Form of Capital Security Certificate for National City Capital Trust I (included in
Exhibit 4.4)
4.8 Form of Exchange Guarantee Agreement for the benefit of the holders of the Trust
Securities
4.9 Form of Junior Subordinated Debt Security (included in Exhibit 4.1)
4.10 Registration Agreement, dated as of June 6, 1997, among National City Corporation,
National City Capital Trust I and UBS Securities LLC
*5.1 Opinion of Jones, Day, Reavis & Pogue as to validity of the Exchange Junior
Subordinated Debt Securities and the Exchange Guarantee to be issued by National
City Corporation
5.2 Opinion of Potter Anderson & Corroon, special Delaware counsel, as to validity of
the Exchange Capital Securities to be issued by National City Capital Trust I
8 Opinion of Cravath, Swaine & Moore as to certain federal income tax matters
12 Statement re: Computation of Consolidated Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Coopers & Lybrand LLP
*23.3 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.4 Consent of Potter Anderson & Corroon (included in Exhibit 5.2)
23.5 Consent of Cravath, Swaine & Moore (included in Exhibit 8)
24 Powers of Attorney
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Junior Subordinated Debt Securities Indenture
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Declaration of Trust
25.3 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Exchange Guarantee Agreement
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
</TABLE>
- ---------------
* To be filed by amendment.
<PAGE> 1
Exhibit 4.1
JUNIOR SUBORDINATED DEBT SECURITIES
INDENTURE, dated as of June 6, 1997, between NATIONAL
CITY CORPORATION, a corporation (hereinafter called
the "Company") having its principal office at 1900
East Ninth Street, Cleveland, Ohio 44114-3484 and THE
BANK OF NEW YORK, a New York banking corporation, as
Trustee (hereinafter 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 up to $515,464,000 of
its debt securities in series (hereinafter called the "Securities") of substan-
tially the tenor hereinafter provided, including, without limitation, Securities
issued to evidence loans made to the Company of the proceeds from the issuance
from time to time by one or more business trusts (each a "National City Capital
Trust" and, collectively, the "National City Capital Trusts") of preferred trust
interests in such National City Capital Trusts (the "Capital Securities") and
common interests in such National City Capital Trusts (the "Common Securities"
and, collectively with the Capital Securities, the "Trust Securities"), and to
provide the terms and conditions upon which the Securities are to be authenti-
cated, issued and delivered.
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 covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
-------------------------------------------------------
SECTION 1.01. 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.
<PAGE> 2
2
(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 the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation,
PROVIDED, that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Company.
(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 1.04.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment of which has
not been made on the applicable Interest Payment Date and which shall accrue at
the rate per annum specified or determined as specified in any Officers'
Certificate or supplemental Indenture delivered pursuant to Section 3.01 of the
Indenture.
"Additional Sums" has the meaning specified in Section 10.06.
"Administrative Action" has the meaning specified in the
definition of "Tax Event" in this Section 1.01.
"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; PROVIDED, HOWEVER, that an Affiliate
of the Company shall not be deemed to include any National City Capital Trust to
which Securities have been issued. 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.
<PAGE> 3
3
"Agent Member" means any member of, or participant in, the
Depositary.
"Amended and Restated Declaration of Trust" for each series of
Securities has the meaning specified in the Officers' Certificate or
supplemental Indenture for such series delivered pursuant to Section 3.01 of
this Indenture.
"Applicable Rate" has the meaning specified in Section 2.02.
"Auction Agent" means The Bank of New York or any successor.
"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.
"Available Capital Securities" has the meaning specified in
Section 3.11(c).
"Bid" means an Order (i) indicating the Liquidation Amount of
Outstanding Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of Outstanding Securities), if any, that an Existing Holder
desires to continue to hold if the Applicable Rate on and after the Rate Reset
Date is not less than the rate per annum specified by such Existing Holder or
(ii) indicating the Liquidation Amount of Outstanding Capital Securities (or, if
a Distribution Event shall have occurred, the principal amount of Outstanding
Securities), if any, that a Potential Holder desires to purchase if the
Applicable Rate on and after the Rate Reset Date is not less than the rate per
annum specified by such Potential Holder.
"Board of Directors" means either the board of directors of
the Company or any committee of that board duly authorized to act hereunder.
"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 such committee of the Board of Directors or
officers of the Company to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions
<PAGE> 4
4
in The City of New York are authorized or required by law or executive order to
remain closed, or (iii) a day on which the Corporate Trust Office of the
Trustee, or, with respect to the Securities of a series issued to a National
City Capital Trust, the Corporate Trust Office of the Property Trustee under the
related Trust Agreement, is closed for business.
"Capital Securities" has the meaning specified in the first
recital of this Indenture, and shall include, where appropriate, Exchange
Capital Securities as defined in Article XII.
"Capital Treatment Event" means the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or
change (including any announced prospective change) in, the laws (or any rules
or regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action, or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the thirtieth day prior to the
Submission Deadline there is more than an insubstantial risk that the Company
will not be entitled to treat an amount equal to Liquidation Amount of the
Capital Securities as "Tier 1 Capital" (or the then equivalent thereof) after
the Rate Reset Date for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Corporation.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
under the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock" means the common stock, $4.00 par value, of the
Company.
"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.
<PAGE> 5
5
"Company Request" and "Company Order" mean, respectively, the
written request or order signed in the name of the Company by the Chairman,
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Comparable Treasury Issue" has the meaning specified in
Section 2.02.
"Comparable Treasury Price" has the meaning specified in
Section 2.02.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office as of the date of this Indenture is located at 101
Barclay Street, New York, New York 10286.
"Corporation" includes a corporation, association, company,
joint-stock company or business trust.
"Debt" means (i) the principal of and premium, if any, and
unpaid interest on indebtedness for money borrowed, (ii) purchase money and
similar obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of such indebtedness
of others, (v) renewals, extensions and refunding of any such indebtedness, (vi)
interest or obligations in respect of any such indebtedness accruing after the
commencement of any insolvency or bankruptcy proceedings and (vii) obligations
associated with derivative products such as interest rate and currency exchange
contracts, foreign exchange contracts, commodity contracts and similar arrange
ments.
"Declaration of Trust" for each series of Securities has the
meaning specified in the Officers' Certificate for such series delivered
pursuant to Section 3.01 of this Indenture.
"Defaulted Interest" has the meaning specified in Section
3.08.
"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 by the Company pursuant to
Section 3.01 with
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6
respect to such series (or any successor thereto (a "Successor Depositary")).
"Determination Date" has the meaning specified in Section
2.02.
"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 acceleration of the Maturity thereof pursuant to Section 5.02.
"Distribution Event" means any event, as described more fully
in the Offering Memorandum which results in the dissolution of the Trust and the
distribution of the Securities to the holders of the Capital Securities.
"Dollar" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
"DTC" means The Depository Trust Company.
"Early Mandatory Redemption" has the meaning specified in
Section 2.02.
"Early Optional Redemption" has the meaning specified in
Section 2.02.
"Early Optional Redemption Price" has the meaning specified in
Section 2.02.
"Exchange Act" means the Securities Exchange Act of 1934.
"Exchange Capital Securities" has the meaning specified in
Section 12.01(a).
"Exchange Guarantee" has the meaning specified in Section
12.01(b).
"Exchange Offer Registration Statement" has the meaning
specified in Section 12.01(a).
"Exchange Securities" has the meaning specified in Section
12.01(a).
"Existing Holder", when with respect to a Liquidation Amount
of Capital Securities (or if a Distribution Event shall have occurred, an
aggregate principal amount of Securities) of any series, means a
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Person who is listed as the beneficial owner of such principal amount of Capital
Securities or Securities, as the case may be, of such series in the records of
the Securities Register, as the case may be.
"Extension Period" has the meaning specified in Section 3.13.
"Event of Default", unless otherwise specified in the
supplemental indenture creating a series of Securities, has the meaning
specified in Article V.
"Failed Auction" means a Rate Reset Auction in which (i)
Sufficient Clearing Bids have not been made or (ii) the Remarketing Agent does
not use its best efforts to solicit Bids or Hold Orders because one or more of
the conditions set forth in Section 7 of the Remarketing Agreement has not been
satisfied.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Full Participation Rate" has the meaning specified in Section
2.02.
"Global Security" means a Security in the form prescribed in
Section 2.04 evidencing all or part of a series of Securities, issued to the
Depositary or its nominee for such series, and registered in the name of such
Depositary or its nominee.
"Guarantee Agreement" for each series of Securities has the
meaning specified in the Officers' Certificate or supplemental Indenture for
such series delivered pursuant to Section 3.01 of this Indenture.
"Hold Order" means an Order indicating the Liquidation Amount
of Outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of Outstanding Securities), if any, that an
Existing Holder desires to continue to hold without regard to the Applicable
Rate on and after the Rate Reset Date.
"Holder" means a Person in whose name a Security is registered
in the Securities 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
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entered into pursuant to the applicable provisions hereof and shall include the
terms of each particular series of Securities established as contemplated by
Section 3.01.
"Interest Payment Date" means as to each series of Securities
the Stated Maturity of an installment of interest on such Securities.
"Interest Rate" means the rate of interest specified or
determined as specified in each Security as being the rate of interest payable
on such Security.
"Investment Company Act" means the Investment Company Act of
1940.
"Junior Subordinated Payment" has the meaning specified in
Section 14.02.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Liquidation Amount" has the meaning specified in Section 1.01
of the Trust Agreement.
"Make-Whole Amount" has the meaning specified in Section 2.02.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether as the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maximum Applicable Rate" means the Treasury Rate on the Rate
Reset Pricing Date plus 5.0%.
"National City Capital Trust" has the meaning specified in the
first recital of this Indenture.
"National City Guarantee" means the guarantee by the Company
of the distribution on the Trust Securities of a National City Capital Trust to
the extent of the Guarantee Agreement.
"'40 Act Event" means the receipt by the Property Trustee of
an opinion of independent counsel rendered by a law firm having a recognized
national securities practice, to the effect that, as a result of the occurrence
of a
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change in law or regulations or a change in interpretation or application of law
or regulation by an legislative body, court, governmental agency or regulatory
authority ("Change in Investment Company Law"), there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" which is required to be registered under the Investment Company Act,
which Change in Investment Company Law becomes effective or is announced,
enacted or promulgated on or after the thirtieth day prior to the Submission
Deadline.
"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer, President, or Vice President, and by the
Treasurer, the Controller, the Chief Financial Officer, the Secretary or any
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company.
"Optional Redemption" has the meaning specified in Section
2.03.
"Optional Redemption Price" has the meaning specified in
Section 2.03.
"Optional Redemption Premium" has the meaning specified in
Section 2.03.
"Order" means any Hold Order, Bid or Sell Order communicated
to the Remarketing Agent in writing on a form provided by the Company and
approved by the Remarketing Agent for that purpose.
"Original Issue Date" means the date of issuance specified as
such in each Security.
"Other Debentures" means, with respect to any series of
Securities, all junior subordinated debt securities to be issued by the Company
pursuant to this Indenture, other than such series of Securities, with
substantially similar subordination terms, and which will be issued and sold (if
at all) to any National City Capital Trust established by the Company (if any),
and will be unsecured and subordinate and junior in right of payment to the
extent and to the manner set forth in this Indenture to all Senior Debt of the
Company.
"Other Guarantees" means, with respect to any series of
Securities, all guarantees (if any) to be issued by the Company with respect to
Capital Securities (if any)
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to be issued by any National City Capital Trust to be established by the Company
(if any), other than the guarantee related to such series of Securities.
"Outstanding" means, when used in reference to any Securities,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancelation;
(ii) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been
paid pursuant to Section 3.07, unless proof satisfactory to the Trustee
is presented that any such Securities are held by Holders in whose
hands such Securities are valid, binding and legal obligations of the
Company;
PROVIDED, HOWEVER, that (i) in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or 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 a Responsible Officer actually knows to
be so owned shall be so disregarded and (ii) for the purposes of the Rate Reset
Auction, Securities, as to which the Company or any Person known to the
Remarketing Agent to be an Affiliate of the Company shall be the Existing Holder
thereof, shall be disregarded and deemed not to be Outstanding. 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. Upon the written request of the Trustee, the Company
shall furnish the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Company to be owned or held by
or for the
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account of the Company, or any other obligor on the Securities or any Affiliate
of the Company or such obligor, and, subject to the provisions of Section 6.01,
the Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by
the Company to pay the principal of (or premium, if any) 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" means, with respect to the Securities of
any series, the place or places where the principal of (and premium, if any) and
interest on the Securities of such series are payable pursuant to Sections 3.01
and 3.08.
"Potential Holder" with respect to a Liquidation Amount of
Capital Securities of any series means any Person, including any Existing Holder
thereof, who has submitted a Bid to acquire (or in the case of an Existing
Holder, to acquire or retain), Capital Securities of such series (or, in the
event a Distribution Event shall have occurred, Securities of such series).
"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 3.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Proceeding" has the meaning specified in Section 14.02.
"Property Trustee" means, in respect of any National City
Capital Trust, the commercial bank or trust company identified as the "Property
Trustee" in the related Trust Agreement, solely in its capacity as Property
Trustee of such National City Capital Trust under each Trust Agreement and not
in its individual capacity, or its
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successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Quotation Agent" has the meaning specified in Section 2.02.
"Rate Reset Auction" means the implementation of
the Rate Reset Auction Procedures.
"Rate Reset Auction Procedures" has the meaning specified in
Section 3.11.
"Rate Reset Date" means June 1, 1999, or, if such day is not a
Business Day, the following Business Day.
"Rate Reset Pricing Date" means the Business Day on the third
Business Day preceding the Rate Reset Date.
"Redemption Date", when used with respect to any Security of a
series to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Reference Treasury Dealer" has the meaning specified in
Section 2.02.
"Reference Treasury Dealer Quotations" has the
meaning specified in Section 2.02.
"Registration Agreement" has the meaning specified in Section
12.01.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means, unless otherwise
provided pursuant to Section 3.01 with respect to Securities of a series, the
date which is the Business Day next preceding such Interest Payment Date.
"Remaining Life" has the meaning specified in Section 2.02.
"Remarketing Agent" means UBS Securities LLC or any successor.
"Remarketing Agreement" means the Remarketing Agreement dated
June 6, 1997, between the Remarketing Agent and the Company.
"Responsible Officer", when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, vice
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president, assistant vice president, assistant treasurer, assistant secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Indenture, and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Restricted Security" means each Security required pursuant to
Section 3.06(c) hereof to bear a Restricted Securities Legend.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Exhibit A to this Indenture.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Security set forth in Section
2.02 to be placed on a Restricted Security.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Securities Certificate" means a certificate
evidencing ownership of Securities.
"Securities Register" and "Securities Registrar"
have the respective meanings specified in Section 3.06.
"Sell Order" has the meaning specified in
Section 3.11.
"Senior Debt" (a) the principal of, and premium, if any, and
interest on all indebtedness of the Corporation for money borrowed, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, (b) all obligations to make payment pursuant to the terms
of financial instruments, such as (i) securities contracts and foreign currency
exchange contracts, (ii) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts, and (iii) similar financial instruments; except, in the case
of both (a) and (b) above,
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such indebtedness and obligations that are expressly stated to rank junior in
right of payment to, or pari passu in right of payment with, the Junior
Subordinated Debt Securities, (c) and indebtedness or obligations of others of
the kind described in both (a) and (b) above for the payment of which the
Corporation is responsible or liable as guarantor or otherwise, and (d) any
deferrals, renewals or extensions of any such Senior Debt; provided, however,
that Senior Debt shall not be deemed to include (i) any Debt of the Corporation
which, when incurred and without respect to any election under Section 1111(b)
of the United States Bankruptcy Code of 1978, was without recourse to the
Corporation, (ii) any Debt of the Corporation to any of its subsidiaries, (iii)
Debt to any employee of the Corporation, (iv) Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such debt by the holders of the Junior Subordinated Debt Securities as a result
of the subordination provisions of the Indenture would be greater than such
payments otherwise would have been as a result of any obligation of such holders
of such debt to pay amounts over to the obligees on such trade accounts payable
or accrued liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Debt is subject and (v) any other debt
securities issued pursuant to the Indenture.
"Shelf Registration Statement" has the meaning specified in
Section 12.02.
"Special Interest" has the meaning specified in Section 12.03.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.08.
"Stated Coupon" has the meaning specified in Section 2.02.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the date
specified pursuant to the terms of such Security as the date on which the
principal of such Security or such installment of interest is due and payable,
in the case of such principal, as such date may be shortened or extended as
provided pursuant to the terms of such Security and this Indenture.
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"Submission Deadline", with respect to any series of
Securities, means 1:00 P.M., New York City time, on the Business Day five
Business Days prior to the Rate Reset Date with respect to such series by which
Existing Holders and Potential Holders are required to submit Orders to the
Remarketing Agent.
"Submitted Bid" means, after the Submission Deadline, all Bids
submitted by Existing Holders or Potential Holders through the Remarketing Agent
to the Auction Agent.
"Submitted Hold Order" means, after the Submission Deadline,
all Hold Orders submitted by Existing Holders through the Remarketing Agent to
the Auction Agent.
"Submitted Sell Order" means, after the Submission Deadline,
all Sell Orders submitted by Existing Holders through the Remarketing Agent to
the Auction Agent or deemed submitted to the Auction Agent.
"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 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.
"Successor Security" of any particular Security means every
Security issued after, and 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 3.07 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.
"Successor Trustee" has the meaning specified in the
definition of "Trustee" in this Section 1.01.
"Sufficient Clearing Bids" means an amount of Submitted Bids
by Potential Holders such that the Liquidation Amount of Outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the principal
amount of Outstanding Securities) that is the subject of such Submitted Bids
with rates not higher than the Maximum Applicable Rate equals or exceeds the
Liquidation Amount of
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outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities) that is the subject of Submitted Sell Orders (including the
Liquidation Amount of outstanding Capital Securities (or, if a Distribution
Event shall have occurred, the principal amount of Junior Subordinated Debt
Securities) as to which Sell Orders are deemed to have been submitted and the
Liquidation Amount of Capital Securities (or, if a Distribution Event shall
have occurred, the principal amount of Junior Subordinated Debt Securities)
subject to Bids by Existing Holders specifying rates higher than the Maximum
Applicable Rate).
"Tax Event" means the receipt by the Property Trustee of an
opinion of a nationally recognized independent tax counsel to the Company
experienced in such matters to the effect that, as a result of (a) any amendment
to, clarification of, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any judicial decision or
official administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to,
clarification of, or change in the administrative position or interpretation of
any Administrative Action or judicial decision that differs from the theretofore
generally accepted position, in each case, by any legislative body, court,
governmental agency or regulatory body, irrespective of the manner in which such
amendment, clarification of, or change is made known, which amendment,
clarification of, or change is effective, announced, enacted or promulgated or
such Administrative Action or decision is announced, in each case, on or after
the date thirtieth day prior to the Submission Deadline relating to the Rate
Reset Auction for the applicable series of Securities or the applicable Capital
Securities issued by the affected National City Capital Trust, there is more
than an insubstantial risk that (x) if the affected National City Capital Trust
exists, (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to interest accrued or
received on the Securities or subject to more than a DE MINIMIS amount of other
taxes, duties or other governmental charges as determined by such counsel, or
(ii) any portion of interest payable by the Company to the affected National
City Capital Trust on the Securities is not, or within 90 days of the date of
such opinion will not be, deductible by the Company in whole or in part for
United States federal income tax purposes or (y) with respect to
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Securities which are no longer held by or on behalf of the affected National
City Capital Trust, any portion of interest payable by the Company on the
Securities is not, or within 90 days of the date of such opinion will not be,
deductible by the Company in whole or in part for United States federal income
tax purposes.
"Treasury Rate" has the meaning specified in Section 2.02.
"Trust Agreement" with respect to each series of Securities
means the Declaration of Trust with respect to such series, as amended by the
Amended and Restated Declaration of Trust with respect to such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this Indenture,
except as provided in Sections 1.07 and 9.05.
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee (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.
"Vice President", when used with respect to the Company, means
any duly appointed vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Winning Bid Rate" has the meaning specified in Section
3.11(g).
"Winning Yield Spread" has the meaning specified in Section
2.02 of the Indenture.
SECTION 1.02. COMPLIANCE CERTIFICATE 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 an
Officers' Certificate stating that all conditions precedent (including covenants
compliance with which constitute a condition precedent), if any, provided for in
this Indenture
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relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel that all such conditions
precedent (including covenants compliance with which constitute a condition
precedent), if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided regarding conditions or covenants waived by the Holders
pursuant to Section 10.05) 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 1.03. FORMS 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 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.
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
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representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
with respect to 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 1.04. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given to 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 an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or 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 6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(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 the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
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(c) The fact and date of the execution by any Person 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 and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved
by the Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done 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) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to take any
action under this Indenture by vote or consent. Except as otherwise provided
herein, such record date shall be the later of 30 days prior to the first
solicitation of such consent or vote or the date of the most recent list of
Securityholders furnished to the Trustee pursuant to Section 7.01 prior to such
solicitation. If a record date is fixed, those persons who were Securityholders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date, PROVIDED, HOWEVER, that unless such vote or consent is
obtained from the Holders (or their duly designated proxies) of the requisite
principal amount of Outstanding Securities prior to the date which is the 120th
day after such record date, any such vote or consent previously given shall
automatically and without further action by any Holder be canceled and of no
further effect.
SECTION 1.05. 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:
(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,
or
<PAGE> 21
21
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.01 hereof) hereunder 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.
SECTION 1.06. 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 the
address of such Holder as it appears in the Securities Register, not later than
the latest date, and not earlier than the earliest date, 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. In case, by reason of the suspension of or
irregularities in regular mail service or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. 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.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. This
Indenture will not be qualified under the Trust Indenture Act except upon the
effectiveness of a registration statement as contemplated in Article XII hereof.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Section 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.08. 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.
<PAGE> 22
22
SECTION 1.09. 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 or enforceability of the remaining provisions (or of the
other series of Securities) 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
the parties hereto, any Paying Agent and their successors and assigns, the
holders of Senior Debt and the Holders of the Securities, 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 principles of conflicts of laws.
SECTION 1.13. NON-BUSINESS DAYS. In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest or principal need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, until such next
succeeding Business Day) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity, as
the case may be.
ARTICLE II
Security Forms
--------------
SECTION 2.01. FORMS GENERALLY. The Securities of each series
and the Trustee's certificate of authentication shall be in substantially the
forms set forth in this Article, or in such other form or forms as shall be
established by or pursuant to a Board Resolution or in one
<PAGE> 23
23
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 applicable tax laws or 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 3.03 with respect to the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed,
typewritten or engraved or produced by any combination of these methods, if
required by any securities exchange on which the Securities may be listed, on a
steel engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Securities distributed to holders of book-entry Capital
Securities shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or held by such
Depositary for credit by the Depositary to the respective accounts of the
beneficial owners of the Securities represented thereby (or such other accounts
they may direct). Securities distributed to holders of Capital Securities other
than book-entry Capital Securities shall not be issued in the form of a Global
Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
SECTION 2.02. Form of Face of Security.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION
<PAGE> 24
24
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH NATIONAL CITY CORPORATION (THE "COMPANY") OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THIS SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A,(D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE PROPERTY TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM
THE COMPANY OR THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.
NATIONAL CITY CORPORATION
(Title of Security)
CUSIP
No. $
NATIONAL CITY CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or its registered assigns, the principal sum of Dollars
on June 1, 2029 (the "Stated Maturity"). The Company further promises to pay
interest on said principal sum from June 6, 1997, or from the most recent
interest payment date (each such date, an "Interest Payment Date") on which
interest has been paid or duly provided for, semi-annually (subject to deferral
as set forth herein), in arrears on the 1st day of June and December of each
year, commencing June 6, 1997, at a rate equal to the Applicable Rate (as
defined herein), until the principal hereof shall have become due and payable,
plus Additional Interest and Special Interest, if any, until the principal
hereof is paid or duly provided for or made available for payment and on any
overdue principal and (without duplication and to the
<PAGE> 25
25
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at an annual rate equal to the Applicable Rate
compounded semi-annually as Additional Interest. Prior to the Rate Reset Date,
the Applicable Rate shall equal to 6.75% per annum. On and after the Rate Reset
Date, if Sufficient Clearning Bids have been made in the Rate Reset Auction
(other than if this results because all Capital Securities are subject to Hold
Orders) this Security will bear interest at a fixed annual rate equal to the
Winning Bid Rate that results from the implementation of the Rate Reset Auction
Procedures set forth in Section 3.11 of this Indenture or (ii) if all
Outstanding Capital Securities are subject to Hold Orders in the Rate Reset
Auction, the Full Participation Rate, in each case, accruing from the Rate Reset
Date and payable semi-annually in arrears on the 1st day of June and December of
each year, commencing with the first such date following the Rate Reset Date
(the rate per annum at which interest is payable on this Security for any
Interest Period being hereinafter referred to as the "Applicable Rate").
"Winning Bid Rate" has the meaning specified in
Section 3.11 of the Indenture.
"Full Participation Rate" means the Treasury Rate
plus 1.15%.
The Quotation Agent will be responsible for determining the
Winning Bid Rate and the Full Participation Rate. If the Winning Bid Rate is
expressed as a spread over the yield on a U.S. Treasury Security (the "Winning
Yield Spread"), the Winning Bid Rate shall be equal to the sum of (i) the yield
to maturity for the Comparable Treasury Issue based on the bid price for the
Comparable Treasury Issue at 12:00 P.M. on the Rate Reset Pricing Date, as
displayed on Telerate ("Telerate") Page 500, or if Telerate is not available as
displayed on GovPX ("GovPX") Page 8, or if both Telerate and GovPX are not
available, on any recognized quotation source selected by the Quotation Agent in
its sole discretion, plus (ii) the Winning Yield Spread.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the week immediately prior to the calculation date,
appearing in the most recently published statistical release designated
"H.15(519)" or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities", for the maturity corresponding to the
Remaining Life (if no maturity is
<PAGE> 26
26
within three months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the Remaining Life shall be
determined and the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month) or (ii) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per annum equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date the Rate Reset Pricing Date or the Rate Reset Date, as the
case may be. The Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date, the Rate Reset Pricing Date or the Rate Reset
Date, as the case may be.
"Comparable Treasury Issue" means, with respect to any
redemption date, the Rate Reset Pricing Date or the Rate Reset Date, as the case
may be, the United States Treasury security selected by the Quotation Agent as
having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
Remaining Life. If no United States Treasury security has a maturity which is
within a period from three months before to three months after June 1, 2009 or
the Stated Maturity, as the case may be, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury
Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Quotation Agent" means UBS Securities LLC and its successors;
PROVIDED, HOWEVER, that if the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Company.
"Comparable Treasury Price" means (A) the average of five
Reference Treasury Dealer Quotations for such Redemption Date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Debenture Trustee obtains fewer than five such Reference
<PAGE> 27
27
Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date the Rate Reset Pricing
Date or the Rate Reset Date, as the case may be, the average, as determined by
the Debenture Trustee, of the bid and ask prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such redemption date.
The determination of the Applicable Rate and the Interest
Amount shall (in the absence of manifest error) be final and binding upon all
parties.
The amount of interest payable in respect of each $1,000 in
principal amount of the Securities of the series of which this Security is one
(the "Interest Amount") for any Interest Period shall be calculated by applying
Applicable Rate to the principal amount of $1,000, multiplying such sum by
the actual number of days in the Interest Period concerned divided by 360 and
rounding the resultant figure to the nearest cent (half a cent being rounded
upwards). In the event that any date on which interest is payable on this
Security is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on the date the payment was originally payable. A
"BUSINESS DAY" shall mean any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee or the Corporate Trust Office of the
Property Trustee under the Trust Agreement hereinafter referred to for National
City Capital Trust is closed for business. The interest installment so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities, as defined in the Indenture) is registered
at the close of business on the Regular Record Date for such interest
installment, which shall be the [INSERT DEFINITION OF REGULAR RECORD DATES]. Any
such interest installment not so punctually paid or duly
<PAGE> 28
28
provided for shall 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.
On or after the Rate Reset Date and so long as no Event of
Default has occurred and is continuing, the Company shall have the right at any
time during the term of this Security, from time to time, to defer payment of
interest on such Security for up to 10 consecutive semi-annual interest payment
periods with respect to each deferral period (each an "EXTENSION PERIOD"),
during which Extension Periods the Company shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which the
Company shall pay all interest then accrued and unpaid on the Securities
(together with Additional Interest thereon to the extent permitted by applicable
law); PROVIDED, HOWEVER, that no Extension Period may extend beyond the Stated
Maturity of this Security. During any such Extension Period, the Company may not
(i) declare or pay any dividends or distributions, on or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
capital stock (which includes common and preferred stock) or (ii) make any
payment of principal of, interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company (including any Other Debentures) that
rank PARI PASSU with or junior in interest to this Security or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company (including Other Guarantees) if such
guarantee ranks PARI PASSU with or junior in interest to this Security (other
than (a) dividends or distributions in Common Stock of the Company, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the applicable National City Capital Guarantee, (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plan
or other contractual obligation of the
<PAGE> 29
29
Company (other than a contractual obligation ranking PARI PASSU with or junior
to these Securities), (e) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's capital
stock or (f) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged). Prior to the termination of
any such Extension Period, the Company may further extend such Extension Period,
PROVIDED, HOWEVER, that such extension does not cause such Extension Period to
exceed ten consecutive semi-annual interest payment periods or extend beyond the
Stated Maturity of this Security. Upon the termination of any such Extension
Period and the payment of all accrued and unpaid interest and any Additional
Interest then due, and, subject to the foregoing limitations, the Company may
elect to begin a new Extension Period. No interest shall be due and payable
during an Extension Period except at the end thereof. The Company shall give the
Trustee notice of its election to begin any Extension Period at least three
Business Days prior to the Interest Payment Date, [if applicable, insert--or,
with respect to the Securities issued to a National City Capital Trust, prior to
the earlier of (i) the date the Distributions on the Capital Securities would
have been payable except for the election to begin or extend such Extension
Period or (ii) the date the Administrative Trustees are required to give notice
to any automated quotation system or to holders of such Capital Securities of
the record date or the date such Distributions are payable, but in any event not
less than three Business Days prior to such record date. There is no limitation
on the number of times the Company may elect to begin an Extension Period.
Payment of the principal of and interest on this Security will
be made at the office or agency of the Trustee in The City of New York or at the
office of such Paying Agents in the United States as the Company may designate
from time to time, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at the option of the Company payment of any interest may
be made (except in the case of Securities in Global form) (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Securities Register or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled
thereto as specified in the Securities Register.
<PAGE> 30
30
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject to
the provisions of the Indenture with respect thereto. 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
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Debt, whether now outstanding or hereinafter incurred,
and waives reliance by each such holder upon said provisions.
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.
Date: NATIONAL CITY CORPORATION,
[Seal]
by
-------------------------------
[Chairman and Chief
Executive Officer,
President or
Vice President]
Attest:
- --------------------------------
[Secretary or Assistant
Secretary]
<PAGE> 31
31
SECTION 2.03. 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 a Debt
Securities Indenture, dated as of June 6, 1997, as supplemented by an Officers'
Certificate dated as of June 6, 1997,(herein called the "INDENTURE"), between
the Company and The Bank of New York, 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 Trustee, the Company 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 $515,464,000.
All terms used in this Security that are defined in the
Indenture and in the Amended and Restated Declaration of Trust of National City
Capital Trust I dated as of June 6, 1997, as amended (the "Amended and Restated
Declaration of Trust"), among National City Corporation, as Depositor, and the
Administrative Trustees named therein, shall have the meanings assigned to them
in the Indenture or, to the extent not defined in the Indenture, the Amended and
Restated Declaration of Trust, as the case may be.
The Company must, subject to the terms and conditions of
Article XI of the Indenture, redeem this Security (an "Early Mandatory
Redemption") in whole but not in part on the Rate Reset Date in the event of a
Failed Auction at a redemption price and to the aggregate principal amount
hereof, plus accrued and unpaid interest to the redemption date.
The Company may at its option, subject to the terms and
conditions of Article XI of the Indenture, redeem this Security in whole but not
in part on the Rate Reset Date (an "Early Optional Redemption"), at a redemption
price equal to the principal amount of, plus accrued and unpaid interest on,
this Security (the "Early Optional Redemption Price").
On or after June 1, 2009, the Company may at any time or from
time to time prior to maturity, at its option, subject to the terms and
conditions of Article XI of the Indenture and subject to the Company having
received prior approval of the Federal Reserve if then required under applicable
guidelines of the Federal Reserve to do so, redeem this Security in whole or in
part at the "Optional
<PAGE> 32
32
Redemption Price". The "Optional Redemption Price" is equal to the sum of the
aggregate principal amount of Junior Subordinated Debt Securities being
redeemed, any accrued and unpaid interest on the Junior Subordinated Debt
Securities to the date of redemption and the Optional Redemption Premium. The
"Optional Redemption Premium" is equal to 50% of the Stated Coupon on June 1,
2009, declining ratably on each June 1 thereafter to zero on or after June 1,
2019. The "Stated Coupon" is the product of the aggregate principal amount of
Junior Subordinated Debt Securities being redeemed and the Applicable Rate.
If at any time after the Rate Reset Date a Tax Event, '40' Act
Event or Capital Treatment Event (each a "Special Event") shall occur and be
continuing, the Company may, at its option and subject to the provisions of
Article XI of the Indenture and subject to the Company having received prior
approval of the Federal Reserve if then required under applicable guidelines of
the Federal Reserve to do so, redeem the Securities in whole, but not in part,
within 90 days after the occurrence of such Special Event at a Redemption Price
(the "Special Event Redemption Price") equal to (i) the Make-Whole Amount, in
the case of a redemption after the Rate Reset Date but prior to June 1, 2009, or
(ii) the Optional Redemption Price, on or after June 1, 2009.
"Stated Coupon" is the product of the aggregate principal
amount of this Security being redeemed and the Applicable Rate.
The "Make-Whole Amount" will be equal to the greater of (i)
100% of the principal amount of this Security or (ii) as determined by the
Quotation Agent, (a) the sum of the present values of the principal amount of
premium, if any, payable as part of the Optional Redemption Price on this
Security on June 1, 2009, together with the present values of scheduled payments
of interest on this Security from the Redemption Date to June 1, 2009, in each
case discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 1.0%
less (b) accrued and unpaid interest on this Security to the date of redemption.
"Remaining Life" means (i) for purposes of determining the
Maximum Applicable Rate and the Full Participation Rate, the period beginning on
the Rate Reset Date and ending on the Stated Maturity, and (ii) with respect to
an Optional Redemption or Special Event Redemption, the period beginning on the
applicable Redemption Date and ending on June 1, 2009.
<PAGE> 33
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In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancelation hereof.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of this Security may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
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.
As provided in and subject to the provisions of the Indenture,
if an Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of this series may declare the principal amount of all
the Securities of this series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), PROVIDED,
HOWEVER, that, in the case of the Securities of this series issued to a National
City Capital Trust, if upon an Event of Default, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities of
this series fails to declare the principal of all the Securities of this series
to be immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the corresponding series of Capital Securities then
outstanding shall have
<PAGE> 34
34
such right by a notice in writing to the Company and the Trustee with a copy to
the Property Trustee. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of this series may annul such declaration and waive
the default by written notice to the Property Trustee, the Company and the
Trustee if the default (other than the non-payment of the principal of these
Securities which has become due solely by such acceleration) has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Trustee. Should the
Holders of these Securities of this series fail to annul such declaration and
waive such default, the holders of a majority in aggregate Liquidation Amount of
the Capital Securities shall have such right. Upon any such declaration of such
principal amount and the accrued interest (including any Additional Interest) on
all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided in
Article XIV of the Indenture.
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
premium, if any) 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 registrable in
the Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to Section
10.02 of the Indenture duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Securities Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees. 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
shall treat the Person in whose name this Security is registered as the owner
<PAGE> 35
35
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.
The Securities of this series are issuable only in registered
form without coupons in blocks having an aggregate principal amount of $100,000
(100 Securities) or an integral multiple of $100,000 in excess 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 such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security intend that such Security constitute
indebtedness and agree to treat such Security as indebtedness for all United
States Federal, state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 2.04. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL
SECURITY. Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.02 and 2.03, 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 The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Security is exchangeable for Securities registered in
the name of a person other than the Depositary or its nominee only in
the limited circumstances described in the Indenture and no transfer
of this Security (other than a transfer of this Security as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may
be registered except in limited circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to National
City Corporation or its agent for registration of transfer,
<PAGE> 36
36
exchange or payment, and any Security issued is registered in the name
of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein."
SECTION 2.05. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within mentioned Indenture:
------------------------------
as Trustee
Dated:
By:
---------------------------
Authorized Signatory
ARTICLE III
The Securities
--------------
SECTION 3.01. TITLE AND TERMS. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is
$515,464,000.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of a series:
(a) the title of the securities of such series,
which shall distinguish the Securities of the series
from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of
the Securities of such series which may be authenticated and made
available for delivery under this Indenture (except for Securities
authenticated and made available for delivery upon registration of,
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.06, 3.07, 9.06 or 11.06); PROVIDED,
HOWEVER, that the authorized aggregate principal amount
<PAGE> 37
37
of such series may be increased above such amount by a solution to
such effect;
(c) the Stated Maturity or Maturities on which the principal
of the Securities of such series is payable or the method of
determination thereof;
(d) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates and extent to
which Additional Interest, if any, shall be payable in respect of any
Securities of such series, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.13 or as
otherwise set forth therein, of the Company to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest
payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium,
if any) and interest on the Securities of such series shall be payable,
the place or places where the Securities of such series may be
presented for registration of transfer or exchange, and the place or
places where notices and demands to or upon the Company in respect of
the Securities of such series may be made;
(f) the period or periods within or the date or dates on
which, if any, the price or prices at which and the terms and
conditions upon which the Securities of such series may be redeemed, in
whole or in part, at the option of the Company;
(g) the obligation or the right, if any, of the Company to
redeem, repay or purchase the Securities of such series pursuant to any
sinking fund, amortization or analogous provisions, or at the option of
a Holder thereof, and the period or periods within which, the prices or
prices at which, the currency or currencies (including currency unit or
units) in which and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligations;
(h) the denominations in which any Securities of such series
shall be issuable, if other than in blocks having aggregate principal
amounts of $100,000 (100 Securities) or an integral multiple of
$100,000 in excess thereof;
<PAGE> 38
38
(i) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of (and
premium, if any) and interest, if any, on the Securities of the series
shall be payable, or in which the Securities of the series shall be
denominated and the manner of determining the equivalent thereof in
Dollars for purposes of the definition of the term "Outstanding";
(j) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Company set forth herein with
respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be payable
upon declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to
permit or facilitate the issuance of the Securities of such series in
bearer form, registrable or not registrable as to principal, and with
or without interest coupons;
(m) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Securities of such
series or the manner in which such amounts will be determined;
(n) the issuance of a temporary Global Security representing
all of the Securities of such series and exchange of such temporary
Global Security for definitive Securities of such series;
(o) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Securities, which Depositary
shall be a clearing agency registered under the Exchange Act;
(p) the appointment of any Paying Agent or Agents
for the Securities of such series;
(q) the terms of any right to convert or exchange Securities
of such series into any other securities or property of the Company,
and the additions or changes, if any, to this Indenture with respect to
the Securities of such series to permit or facilitate such conversion
or exchange;
<PAGE> 39
39
(r) the transfer restrictions and legends required
to be on the Securities;
(s) the definitions of Amended and Restated
Declaration of Trust, Declaration of Trust and
Guarantee Agreement for each series;
(t) the relative degree, if any, to which the Securities of
the series shall be senior to or be subordinated to other series of
Securities in right of payment, whether such other series of
Securities are Outstanding or not; and
(u) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
herein or in or pursuant to such Board Resolution and set forth in such
Officers' Certificate 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 (except in the case of Securities in
Global form) (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Securities Register or (ii) by wire transfer
in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register.
SECTION 3.02. DENOMINATIONS. The Securities of each series
shall be in registered form without coupons and shall be issuable in blocks
having an aggregate principal amount of $100,000 (100 Securities) or an integral
multiple of $100,000 in excess thereof, unless otherwise specified as
contemplated by Section 3.01.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents under its corporate seal
reproduced or impressed thereon and 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.
<PAGE> 40
40
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 executed by the Company to the Trustee for authentication.
Securities may be authenticated on original issuance from time to time and
delivered pursuant to such procedures acceptable to the Trustee ("Procedures")
as may be specified from time to time by Company Order. Procedures may authorize
authentication and delivery pursuant to oral instructions of the Company or a
duly authorized agent, which instructions shall be promptly confirmed in
writing. The Trustee shall authenticate and deliver such Securities in
accordance with such instructions and as provided in this Indenture.
Prior to the delivery of a Security in any such form to the
Trustee for authentication, the Company shall deliver to the Trustee the
following:
(a) a Company Order requesting the Trustee's authentication
and delivery of all or a portion of the Securities of such series, and
if less than all, setting forth procedures for such authentication;
(b) the Board Resolution by or pursuant to which such form of
Security has been approved, and the Board Resolution, if any, by or
pursuant to which the terms of the Securities of such series have been
approved, and, if pursuant to a Board Resolution, an Officers'
Certificate describing the action taken;
(c) an Officers' Certificate dated the date such certificate
is delivered to the Trustee, stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Securities in such form and with such terms have been
complied with; and
(d) an Opinion of Counsel stating that (i) the form of such
Securities has been duly authorized and approved in conformity with the
provisions of this Indenture; (ii) the terms of such Securities have
been duly authorized and determined in conformity with the provisions
of this Indenture, or, if such terms are to be determined pursuant to
Procedures, as defined above, when so determined such terms shall have
been duly
<PAGE> 41
41
authorized and determined in conformity with the provisions of this
Indenture; and (iii) Securities in such form when completed by
appropriate insertions and executed and delivered by the Company to
the Trustee for authentication in accordance with this Indenture,
authenticated and made available for delivery by the Trustee in
accordance with this Indenture within the authorization as to
aggregate principal amount established from time to time by the Board
of Directors and sold in the manner specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company entitled to the benefits of this Indenture, subject to
bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles and
except as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Securities denominated other than in
Dollars (or a Foreign Currency or currency unit judgment in respect of
such claim) be converted into Dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in
Foreign Currencies or currency units or payments outside the United
States, and subject to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such
Securities.
The Trustee shall be entitled to receive the documents
referred to in clauses (b) and (d) above only at or prior to the first request
of the Company to the Trustee to authenticate Securities of such series.
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 the manual signature of one of its
authorized officers, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and made available for delivery hereunder.
SECTION 3.04. 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
<PAGE> 42
42
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any denomination, substantially of the tenor of the definitive Securities of
such series 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 such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the Company
designated for that purpose without charge to the Holder. Upon surrender for
cancelation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations having the same Original Issue Date and Stated Maturity
and having the same terms as such temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.05. GLOBAL SECURITIES. (a) Each Global Security
issued under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (a) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to continue as a Depositary with
respect to such Global Security, and no successor depositary shall have been
appointed, or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, at a time when the Depositary is required to
be so registered to act as such depositary, (b) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, (c)
there shall have occurred and be
<PAGE> 43
43
continuing an Event of Default or (d) pursuant to the following sentence. All or
any portion of a Global Security may be exchanged for a Security that has a like
aggregate principal amount and is not a Global Security upon 20 days' prior
request made by the Depositary or its Agent Member to the Securities Registrar.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Securities Registrar for exchange or
cancelation as provided in this Article III. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is to
be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancelation as provided in this Article III or (ii) the principal
amount thereof shall be reduced, subject to Section 3.06(b)(iv), or increased by
an amount equal to the portion thereof to be so exchanged or canceled, or equal
to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Securities Registrar, whereupon the
Trustee shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security by the Depositary, accompanied by registration instructions
and, to the extent required by Section 3.06, a Restricted Securities
Certificate, the Trustee shall, subject to Section 3.05(b) and as otherwise
provided in this Article III, authenticate and make available for delivery any
Securities issuable in exchange for such Global Security (or any portion
thereof) in accordance with the instructions of the Depositary. The Trustee
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interest pursuant to the rules and procedures of
the Depositary. Accordingly, any such owner's beneficial interests in a Global
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members. Neither the Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the Depositary.
<PAGE> 44
44
(e) The rights of the beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such owners and the Depositary
and/or its Agent Members.
SECTION 3.06. REGISTRATION, TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; RESTRICTED SECURITIES LEGENDS. (a) The Company
shall cause to be kept at the Corporate Trust Office of the Trustee a register
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Securities and of transfers of
Securities. Such register is herein sometimes referred to as the "Securities
Register". The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering the Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms and bearing such restrictive legends as may be
required by this Indenture.
At the option of the Holder, Securities may be exchanged for
other Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms and bearing such restrictive legends as may be
required by this Indenture, 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 make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any 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 transfer or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
<PAGE> 45
45
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any 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 transfer or exchange of Securities.
Neither the Company nor the Trustee shall be required,
pursuant to the provisions of this Section, (a) to issue, transfer or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of Securities
pursuant to Article XI and ending at the close of business on the day of mailing
of notice of redemption or (b) to transfer or exchange any Security so selected
for redemption in whole or in part, except, in the case of any Security to be
redeemed in part, any portion thereof not to be redeemed.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of the Indenture, transfers and exchanges of Securities and beneficial
interests in a Global Capital Security of the kinds specified in this Section
3.06(b) shall be made only in accordance with this Section 3.06(b).
(i) NON-GLOBAL SECURITY TO GLOBAL SECURITY. If the Holder of a
Security (other than a Global Security) wishes at any time to transfer all or
any portion of such Security to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Global Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the rules and procedures of the Depositary. Upon receipt by the
Securities Registrar of (A) such Security as provided in Section 3.06(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a specified
Agent Member's account and (B) a Securities Certificate duly executed by such
Holder or such Holder's attorney duly authorized in writing, then the Securities
Registrar shall cancel such Security (and issue a new Security in respect of the
untransferred portion thereof) as provided in Section 3.06(a) and increase the
aggregate principal amount of the Global Security by the specified principal
amount as provided in Section 3.05(c).
<PAGE> 46
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(ii) NON-GLOBAL SECURITY TO NON-GLOBAL SECURITY. A Security
that is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not a Global
Security as provided in Section 3.06(a); PROVIDED, that if such Security to be
transferred in whole or in part is a Restricted Security, the Securities
Registrar shall have received a Restricted Securities Certificate duly executed
by the transferor Holder or such Holder's attorney duly authorized in writing.
(iii) EXCHANGES BETWEEN GLOBAL SECURITY AND NON-GLOBAL
SECURITY. A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 3.05.
(iv) LIMITATIONS RELATING TO PRINCIPAL AMOUNT. Notwithstanding
any other provision of this Indenture and unless otherwise specified as
permitted by Section 3.01, Securities or portions thereof may be transferred or
exchanged only in principal amounts of not less than $100,000 (100 Securities)
and integral multiples of $1,000 in excess thereof. Any transfer, exchange or
other disposition of Securities in contravention of this Section 3.06(b)(iv)
shall be deemed to be void and of no legal effect whatsoever, any such
transferee shall be deemed not to be the Holder or owner of any beneficial
interest in such Securities for any purpose, including but not limited
to the receipt of interest payable on such Securities, and such transferee shall
be deemed to have no interest whatsoever in such Securities.
(c) RESTRICTED SECURITIES LEGEND. (i) Except as set forth
below, all Securities shall bear a Restricted Securities Legend, substantially
in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH NATIONAL CITY CORPORATION (THE
"COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS
<PAGE> 47
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SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"),
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
PROPERTY TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF
TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER
AFTER THE RESALE RESTRICTIONS TERMINATION DATE.
(ii) Subject to Section 3.06(d) and to the following clauses
of this Section 3.06(c), a Security (other than a Global Security) that
does not bear a Restricted Securities Legend may be issued in exchange
for or in lieu of a Restricted Security or any portion thereof that
bears such legend if, in the Company's judgment, placing such a legend
upon such new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
the written direction of the Company in the form of an Officers'
Certificate, shall countersign and deliver such a new Security as
provided in this Article III.
(iii) Notwithstanding the foregoing provisions of this Section
3.06(c), a successor Security of a Security that does not bear a
Restricted Securities Legend shall not bear such form of legend unless
the Company has reasonable cause to believe that such successor
Security is a "restricted security" within the meaning of Rule 144
under the Securities Act, in which case the Trustee, at the written
direction of the Company in the form of an Officers' Certificate, shall
countersign and deliver a new Security bearing a Restricted Securities
Legend in exchange for such successor Security as provided in this
Article III.
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(iv) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Security)
pursuant to an effective registration statement under the Securities
Act or pursuant to Rule 144 under the Securities Act after such
registration ceases to be effective: (A) in the case of any Restricted
Security that is a definitive Security, the Securities Registrar shall
permit the Holder thereof to exchange such Restricted Security for a
definitive Security that does not bear the Restricted Securities Legend
and rescind any restriction on the transfer of such Restricted
Security; and (B) in the case of any Restricted Security that is
represented by a Global Security, the Securities Registrar shall permit
the Holder of such Global Security to exchange such Global Security for
another Global Security that does not bear the Restricted Securities
Legend.
(v) If Restricted Securities are being presented or
surrendered for transfer or exchange then there shall be (if so
required by the Trustee), (A) if such Restricted Securities are being
delivered to the Securities Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification from such
Holder to that effect; or (B) if such Restricted Securities are being
transferred, (i) a certification from the transferor in a form
substantially similar to that attached hereto as Exhibit A, and (ii)
if the Company or Securities Registrar so requests, evidence
reasonably satisfactory to them as to the compliance with the
restrictions set forth in the Restricted Securities Legend.
SECTION 3.07. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or the Trustee
to save each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same issue
and series of like tenor and principal amount, having the same Original Issue
Date and Stated Maturity and bearing the same Interest Rate as such mutilated
Security, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to 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 harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired
<PAGE> 49
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by a bona fide purchaser, the issuing Company shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same issue and series of like tenor
and principal amount, having the same Original Issue Date and Stated Maturity
and bearing the same Interest Rate as such destroyed, lost or stolen Security,
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, without premium.
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 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 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 3.08. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security of any series 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
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of a
Security shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security of any series which is issued between a
Regular Record Date and the related Interest Payment Date shall be payable as
provided in such Security or in the Board Resolution pursuant to
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Section 3.01 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not
timely paid or duly provided for, on any Interest Payment Date for Securities of
such series (herein called "Defaulted Interest"), shall forthwith cease to be
payable to the registered 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 in respect
of which interest is in default (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 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 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 not be 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 a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest
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shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered 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 in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of the series in respect of which interest is
in default may be listed and, upon such notice as may be required by such
exchange (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon 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. Any interest
on any Security which is deferred or extended pursuant to Section 3.13 shall not
constitute Defaulted Interest for purposes of this Section 3.08.
SECTION 3.09. PERSONS DEEMED OWNERS. The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.08) 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. 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 or the Trustee from giving effect to any written certification, proxy,
or other authorization furnished by a Depositary or impair, as between the
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 3.10. CANCELATION. All Securities surrendered for
payment, redemption, transfer or exchange
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shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancelation any Securities previously
authenticated and made available for delivery hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be delivered to the Company.
SECTION 3.11. AUCTION PROCEDURES; DETERMINATION OF THE
APPLICABLE RATE. (a) On and after the Rate Reset Date, the Applicable Rate will
be the rate per annum that results from the implementation of certain auction
procedures (the "Rate Reset Auction Procedures") set forth in this Section 3.11.
(b) The Auction Agent will assemble all Orders submitted to it
by the Remarketing Agent prior to 10:00 a.m. on the Business Day following the
Submission Deadline and will determine whether one or more of the submitted
Orders cover, in the aggregate, more than the Liquidation Amount of Capital
Securities (or, if a Distribution Event shall have occurred, the principal
amount of the Securities) held by any Existing Holder. If so, the Auction Agent
will consider such Orders valid in the following order of priority:
(i) all Hold Orders shall be considered valid, but only up to
and including the Liquidation Amount of Outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of Junior Subordinated Debt Securities) held by such Existing Holder;
(ii)(A) any Bid shall be considered valid up to and including
the excess of the Liquidation Amount of Outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of Outstanding Securities) held by such Existing Holder over the
aggregate Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, the aggregate principal amount
of Securities) subject to any Hold Orders referred to in clause (i)
above;
(B) subject to subclause (A), if more than one Bid with the
same rate is submitted by such Existing Holder
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53
and the aggregate Liquidation Amount of outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the aggregate
principal amount of Outstanding Securities) subject to such Bids is
greater than such excess, such Bids shall be considered valid up to
and including the amount of such excess;
(C) subject to subclause (A), if more than one Bid with
different rates is submitted by such Existing Holder, such Bids shall
be considered valid in the ascending order of their respective rates up
to the amount of such excess; and
(D) in any such event, the aggregate Liquidation Amount of
Outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal amount of Outstanding Securities), if
any, subject to Bids not valid under this clause (ii) shall be treated
as the subject of a Bid by a Potential Holder; and
(iii) all Sell Orders shall be considered valid but only up to
and including the excess of the Liquidation Amount of Outstanding
Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of Outstanding Securities) held by such Existing
Holder over the aggregate Liquidation Amount of Capital Securities (or,
if a Distribution Event shall have occurred, the aggregate principal
amount of Securities) subject to Hold Orders referred to in clause (i)
above and valid Bids referred to in clause (ii) above.
(c) If any rate specified in any Bid contains more than three
figures to the right of the decimal point, round such rate up to the next
highest one-thousandth (.001) of 1%.
(d) Any Order covering an aggregate Liquidation Amount of
Capital Securities (or, if a Distribution Event shall have occurred, aggregate
principal amount of Securities) not equal to $100,000 or an integral multiple of
$100,000 in excess thereof will be rejected.
(e) Any Bids that specify a rate higher than the Treasury Rate
plus 5.0% on the Rate Reset Pricing Date (the "Maximum Applicable Rate") will be
(i) treated as a Sell Order if submitted by an Existing Holder and (ii) rejected
if submitted by a Potential Holder.
(f) The Auction Agent will assemble all Orders
submitted or deemed submitted to it by the Remarketing Agent
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prior to 10:00 a.m. on the Business Day following the Submission Deadline and
will determine the excess of the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the principal
amount of Outstanding Securities) over the Liquidation Amount of outstanding
Capital Securities (or, if a Distribution Event shall have occurred, the
principal amount of Outstanding Securities) subject to Submitted Hold Orders
(such excess, the "Available Capital Securities", or, if a Distribution Event
shall have occurred, the "Available Securities") and whether Sufficient Clearing
Bids have been made in the Rate Reset Auction.
(g) If Sufficient Clearing Bids have been made (other than
because all of the outstanding Capital Securities (or, if a Distribution Event
shall have occurred, all of the Outstanding Securities) are subject to Submitted
Hold Orders), the Auction Agent will determine the lowest rate per annum
specified in the Submitted Bids (the "Winning Bid Rate") which, taking into
account the rates in the Submitted Bids by Existing Holders, would result in
Existing Holders which Submitted Bids continuing to hold an aggregate
Liquidation Amount of Capital Securities (or, if a Distribution Event shall have
occurred, aggregate principal amount of Securities) which, when added to the
Liquidation Amount of Outstanding Capital Securities (or, if a Distribution
Event shall have occurred, the principal amount of Outstanding Securities) to be
purchased by Potential Holders based on the rates in the Submitted Bids
submitted by them, would equal not less than the Available Capital Securities
(or, if a Distribution Event shall have occurred, the Available Securities).
(h) If Sufficient Clearing Bids have been made (other than
because all of the Outstanding Capital Securities (or, if a Distribution Event
shall have occurred, all of the Outstanding Securities) are subject to Submitted
Hold Orders) and subject to paragraph (i) below, the Auction Agent will accept
or reject Submitted Bids so that Existing Holders and Potential Holders of
Capital Securities (or, if a Distribution Event shall have occurred, Securities)
sell, continue to hold (it being understood that Existing Holders which
submitted Hold Orders shall continue to hold the Capital Securities (or, if a
Distribution Event shall have occurred, Securities) subject to such Hold Orders)
and/or purchase Capital Securities (or, if a Distribution Event shall have
occurred, Securities) as set forth below:
(i) each Existing Holder that submitted a Submitted Sell Order
or a Submitted Bid specifying a rate higher than the Winning Bid Rate
shall sell the
<PAGE> 55
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Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
Outstanding Securities) subject to such Submitted Sell Order or
Submitted Bid;
(ii) each Existing Holder that submitted a Submitted Bid
specifying a rate lower than the Winning Bid Rate shall continue to
hold the Liquidation Amount of Outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
Outstanding Securities) subject to such Submitted Bid;
(iii) each Potential Holder that submitted a Submitted Bid
specifying a rate lower than the Winning Bid Rate shall purchase the
Liquidation Amount of Outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
Outstanding Securities) subject to such Submitted Bid;
(iv) each Existing Holder that submitted a Submitted Bid
specifying a rate equal to the Winning Bid Rate shall continue to hold
the Liquidation Amount of Outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
Outstanding Securities) subject to such Submitted Bid, unless the
Liquidation Amount of Outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
Outstanding Securities) subject to all such Submitted Bids is greater
than the excess of the Available Capital Securities (or, if a
Distribution Event shall have occurred, the Available Securities) over
the Liquidation Amount of Outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
Outstanding Securities) accounted for in clauses (ii) and (iii) above,
in which event each Existing Holder with such a Submitted Bid shall
sell a Liquidation Amount of Outstanding Capital Securities (or, if a
Distribution Event shall have occurred, a principal amount of
Outstanding Securities) subject to such Submitted Bid determined on a
pro rata basis based on the aggregate Liquidation Amount of
Outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal amount of Outstanding Securities)
subject to all such Submitted Bids by such Existing Holders; and
(v) each Potential Holder that submitted a Submitted Bid
specifying a rate equal to the Winning Bid Rate shall purchase any
Available Capital
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Securities (or, if a Distribution Event shall have occurred, any
Available Securities) not accounted for in clauses (ii), (iii) or (iv)
above on a pro rata basis based on the Liquidation Amount of
Outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of Outstanding Securities) subject to
all such Submitted Bids.
(i) If as a result of the Rate Reset Auction Procedures set
forth in this Section 3.11, any Existing Holder would be entitled or required to
sell, or any Potential Holder would be entitled or required to purchase, a
Liquidation Amount of Capital Securities (or, if a Distribution Event shall have
occurred, a principal amount of Junior Subordinated Debt Securities) that is not
equal to $100,000 or an integral multiple of $100,000 in excess thereof, the
Auction Agent will, in such manner as is in its sole discretion, round up or
down the Liquidation Amount of Capital Securities (or, if a Distribution Event
shall have occurred, the principal amount of Securities) being sold or purchased
in the Rate Reset Auction so that the Liquidation Amount of Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount of
Securities) sold or purchased by each Existing Holder or Potential Holder shall
be equal to $100,000 or an integral multiple of $100,000 in excess thereof.
(j) If as a result of the Rate Reset Auction Procedures set
forth in this Section 3.11, any Potential Holder would be entitled or required
to purchase less than $100,000 Liquidation Amount of Capital Securities (or, if
a Distribution Event shall have occurred, principal amount of Securities), it
will, in such manner as is in its sole discretion, allocate Liquidation Amounts
of Capital Securities (or, if a Distribution Event shall have occurred,
principal amounts of Securities) for purchase among Potential Holders so that
only Liquidation Amounts of Capital Securities (or, if a Distribution Event
shall have occurred, principal amounts of Securities) equal to $100,000 or an
integral multiple in excess thereof are purchased by any such Potential Holder,
it being understood that the Auction Agent will effect such allocation even if
one or more Potential Holders who would otherwise be entitled or required to do
so will be as a result prevented thereby from purchasing Capital Securities (or,
if a Distribution Event shall have occurred, Securities).
(k) The Auction Agent will, if applicable, advise the
Remarketing Agent, the Company and the Trustee of the Winning Bid Rate by 9:00
a.m. on the Rate Reset Pricing Date.
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(l) The Auction Agent will, if applicable, advise the
Remarketing Agent, the Company and the Trustee by 9:00 a.m. on the Rate Reset
Pricing Date if all of the outstanding Capital Securities (or, if a Distribution
Event shall have occurred, all of the outstanding Securities) are subject to
Submitted Hold Orders.
(m) The Auction Agent will be entitled to rely on all Orders
submitted or deemed submitted to it and the Maximum Applicable Rate submitted to
it, in each case by the Remarketing Agent prior to 10:00 a.m. on the Business
Day following the Submission Deadline.
SECTION 3.12. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series, interest
on the Securities of each series for any period shall be computed on the basis
of a 360-day year of twelve 30-day months and interest on the Securities of each
series for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months.
SECTION 3.13. DEFERRALS OF INTEREST PAYMENT DATES. If
specified as contemplated by Section 3.01 with respect to the Securities of a
particular series, on or after the Rate Reset Date provided that no Event of
Default has occurred and is continuing with respect to such Securities, the
Company shall have the right, at any time or from time to time during the term
of such series, to defer the payment of interest on such Securities for such
period or periods as may be specified as contemplated by Section 3.01 (each, an
"Extension Period") during which Extension Periods the Company shall have the
right to make partial payments of interest on any Interest Payment Date. No
Extension Period shall end on a date other than an Interest Payment Date. At the
end of any such Extension Period the Company shall pay all interest then accrued
and unpaid on the Securities (together with interest thereon accrued at
available annual rate equal to the Applicable Rate, compounded semi-annually
from the relevant Interest Payment Date, to the extent permitted by applicable
law), PROVIDED, HOWEVER, that no Extension Period may extend beyond the Stated
Maturity of these Securities. During an Extension Period, interest will continue
to accrue and Holders of the Securities will be required to accrue interest
income for U.S. Federal income tax purposes. During any such Extension Period,
the Company shall not (i) declare or pay dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Company's capital stock (which includes common and preferred stock), or (ii)
make any payment of
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principal, interest, or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company (including Other Debentures) that rank PARI PASSU
with or junior in interest to the Securities of such series or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company if such guarantee ranks PARI PASSU
with or junior in interest to the Securities of such series (other than (a)
dividends or distributions in common stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
the applicable National City Capital Guarantee, (d) purchases or acquisitions of
shares of the Company's Common Stock in connection with the satisfaction by the
Company of its obligations under any employee benefit plan or other contractual
obligation of the Company (other than a contractual obligation ranking PARI
PASSU with or junior to these Securities, (e) as a result of a reclassification
of the Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for another class or series of the
Company's capital stock, or (f) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged). Prior to
the termination of any such Extension Period, the Company may further extend
such Extension Period; PROVIDED, HOWEVER, that no Extension Period shall exceed
10 consecutive semi-annual periods or extend beyond the Stated Maturity of such
Securities. Upon termination of any Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any Interest
Payment Date, and subject to the foregoing limitations, the Company may elect to
begin a new Extension Period. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company shall give the Holders,
the Trustee and the Property Trustee notice of its election to begin any such
Extension Period (or an extension thereof) at least three Business Days prior to
the Interest Payment Date or, with respect to the Securities of a series issued
to a National City Capital Trust, prior to the earlier of (i) the date the
Distributions on the Trust Securities of such National City Capital Trust would
have been payable except for the election to begin or extend such Extension
Period or (ii) the date the Administrative Trustees of such National City
Capital Trust are required to give notice to any automated quotation system or
to holders of Trust Securities of the record date or the date such Distributions
are payable, but in any event not less than three Business Days
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prior to such record date. There is no limitation on the number of times that
the Company may elect to begin an Extension Period.
SECTION 3.14. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption or other related
material as a convenience to Holders; PROVIDED, HOWEVER, that any such notice or
other related material may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption or other related material and that reliance may be
placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such
numbers.
So long as the Securities are held by or on behalf of a
National City Capital Trust, notwithstanding anything to the contrary herein,
the Company shall have the right to set off any payment it is otherwise required
to make hereunder in respect of any Security with and to the extent the Company
has theretofore made, or is concurrently on the date of such payment making, any
payment under Guarantee used to satisfy the related payment of indebtedness
hereunder.
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture, upon Company Request, shall cease to be of further effect (except as
to (i) any surviving rights of transfer, substitution and exchange of
Securities, (ii) rights hereunder of Holders to receive payments of principal of
(and premium, if any) and interest on the Securities and other rights, duties
and obligations of the Holders as beneficiaries hereof with respect to the
amounts, if any, deposited with the Trustee pursuant to this Article IV and
(iii) the rights and obligations of the Trustee hereunder), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
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acknowledging satisfaction and discharge of this Indenture, when
(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 3.07 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 10.03) have been delivered to the Trustee
for cancelation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year of the date
of deposit, 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 Clause (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which
the Securities of such series are payable sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancelation, for principal and interest
(including any Additional Interest) to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity or the date for redemption, 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
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for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture or the earlier
resignation or removal of the Trustee, the obligations of the Company to the
Trustee under Section 6.07 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 4.02 and the last paragraph of Section
10.03 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with
the Trustee pursuant to Section 4.01, shall be held in trust and applied by the
Trustee, 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 premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee; PROVIDED, HOWEVER, that such moneys
need not be segregated from other funds except to the extent required by law.
ARTICLE V
Remedies
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SECTION 5.01. EVENTS OF DEFAULT. "Event of Default", wherever
used herein with respect to the Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law 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, including any Additional Interest in respect thereof,
when it becomes due and payable, and continuance of such default for a
period of 30 days (subject to the deferral of any due date in the case
of an Extension Period); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due, whether at its Maturity,
upon redemption, by declaration of acceleration or otherwise; or
<PAGE> 62
62
(3) default in the observation or performance in any material
respect, of any covenant of the Company in this Indenture (other than a
covenant a default in the performance of which or the breach of which
is elsewhere in this Section specifically dealt with), and continuance
of such default for a period of 90 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 aggregate
outstanding principal amount of the Securities of that series a written
notice specifying such default and requiring it to be remedied; or
(4) the entry or a decree or order by a court having
jurisdiction in the premises 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 bankruptcy,
insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become
due and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by the Company in furtherance of any such action; or
(6) in respect of a series issued to a National City Capital
Trust, the voluntary or involuntary dissolution, winding-up or
termination of a National City Capital Trust, except in connection with
the
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63
distribution of the Securities of such series to the holders of Trust
Securities in liquidation of such National City Capital Trust, the
redemption of all the Trust Securities of a National City Capital
Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the applicable Trust Agreement; or
(7) any other Event of Default with respect to Securities of
that series as set forth in the Board Resolution and the Officers'
Certificate, or established in a supplemental indenture hereto, prior
to the issuance of the series of such Securities as contemplated by
Section 3.01.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default (other than an Event of Default specified in
Section 5.01(4) or 5.01(5) herein) with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all 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), PROVIDED,
HOWEVER, that, in the case of the Securities of a series issued to a National
City Capital Trust, if, upon such an Event of Default, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series fail to declare the principal of all the Securities of
that series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the corresponding series of Capital Securities
then outstanding shall have such right by a notice in writing to the Company and
the Trustee with a copy to the Property Trustee. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of a series may annul
such declaration and waive the default by written notice to the Property
Trustee, the Company and the Trustee if the default (other than the nonpayment
of the principal of these Securities which has become due solely by such
acceleration) has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee. Should the Holders of the Securities of such a
series fail to annul such declaration and waive such default, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right. Upon any such declaration such principal amount (or
<PAGE> 64
64
specified amount) of and the accrued interest (including any Additional
Interest) on all the Securities of such series shall become immediately due and
payable, PROVIDED, HOWEVER, that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIV. If an Event of Default
specified in Section 5.01(4) or 5.01(5) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series shall automatically, and without any declaration or other action on
the part of the Trustee or any Holder, 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 aggregate
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 installments of interest
(including any Additional 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 interest thereon at
the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
(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 has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13.
The Company is required to file annually with the Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under this Indenture.
<PAGE> 65
65
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, with respect to Securities
of a series all or part of which is represented by a Global Security, a record
date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such notice, which record date shall be at the
close of business on the day the Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; PROVIDED, HOWEVER, that, unless such declaration of
acceleration, or rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such notice
prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.02.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any instalment of
interest (including any Additional 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 (and premium, if any, on) any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all
<PAGE> 66
66
amounts owing to the Trustee under Section 6.07 and Section 10.06.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
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 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may
be necessary or advisable and to take any and all actions as
are authorized under the Trust Indenture Act in order to have
the claims of the Holders and any predecessor to the Trustee
under
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Section 6.07 and of the Holders allowed in any such judicial
proceedings; and
(ii) 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 in
accordance with Section 5.06; and
(b) 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 for distribution in accordance with Section 5.06, 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 to it and
any predecessor Trustee under Section 6.07.
Nothing herein contained 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 proceeding; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIM 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 all the amounts owing the Trustee and any
predecessor Trustee under Section 6.07, 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 5.06. APPLICATION OF MONEY COLLECTED. Any money or
property collected or to be applied by the Trustee with respect to a series of
Securities 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 or property on account of principal (or premium, if any) or interest
(including any
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68
Additional 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 and any predecessor Trustee under Section 6.07;
SECOND: to the payment of the amounts then due and unpaid upon
such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), 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 series of Securities for principal (and
premium, if any) and interest (including any Additional Interest),
respectively; and
THIRD: the balance, if any, to the Person or
Persons entitled thereto.
SECTION 5.07. LIMITATION ON SUITS. No Holder of any Securities
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,
assignee, trustee, liquidator, sequestrator (or other similar official) 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
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69
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 itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, 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 such Holders.
SECTION 5.08. 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 of (and premium, if any) and
(subject to Section 3.08) interest (including any Additional Interest) on such
Security on the respective Stated 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 right shall not be impaired without
the consent of such Holder. In the case of Securities of a series issued to a
National City Capital Trust, any holder of the corresponding series of Capital
Securities shall have the right, upon the occurrence of an Event of Default
described in Section 5.01(1) or 5.01(2) hereof, to institute a suit directly
against the Company for enforcement of payment to such Holder of principal of
(and premium, if any) and (subject to Section 3.08) interest (including any
Additional Interest) on the Securities having a principal amount equal
to the aggregate Liquidation Amount of the Capital Securities of the
corresponding series held by such Holder. Notwithstanding any payments made to a
holder of Capital Securities by the Company in connection with a suit directly
against the Company, the Company shall remain obligated to pay the principal of
or interest on the Securities, and the Company shall be subrogated to the rights
of the holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Company to such holder in
any suit directly against the Company.
The holders of the Capital Securities will not be able to
exercise directly any remedies, other than those set forth in this Section 5.08,
available to the holders of the Securities unless there shall have been an Event
of Default under the Trust Agreement.
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SECTION 5.09. 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 case the Company, the Trustee and the Holders
shall, subject to any determination in such proceeding, 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 in the last paragraph of Section 3.07, 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 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. Except as
otherwise provided in the last paragraph of Section 3.07, no delay or omission
of the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such 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:
(1) such direction shall not be in conflict with
any rule of law or with this Indenture;
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(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 6.01, the Trustee
shall have the right to decline to follow 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 be unjustly
prejudicial to the Holders not joining in any such direction or would
involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing
the time, method or place of conducting any such proceeding or exercising any
such trust or power, with respect to Securities of a series all or part of which
is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such notice, which record date shall be at the close of business on the day the
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
PROVIDED, HOWEVER, that, unless the Holders of a majority in principal amount of
the Outstanding Securities of such series shall have joined in such notice prior
to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice identical to a written notice which has been canceled pursuant to the
proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 5.12.
SECTION 5.13. WAIVER OF PAST DEFAULTS. The Holders of a
majority in aggregate principal amount of the Outstanding Securities of a series
affected thereby may, on behalf of the Holders of all the Securities of such
series, waive any past default, except a default in the payment of principal of
(and premium, if any) or interest (including any Additional Interest) (unless
such default has been cured and a sum sufficient to pay all overdue installments
of interest and principal due otherwise than by acceleration has been deposited
with the Trustee) on any Security of such series or a default in respect of a
covenant or provision which under Article IX cannot be modified or amended
without the consent of the Holder of each outstanding Security of
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such series and, in the case of Securities of a series issued to a National City
Capital Trust, should the Holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the related series of Capital Securities shall have such
right.
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 Security 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 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 shall not apply 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 by any Holder
for the enforcement of the payment of the principal of (and premium, if any) or
interest (including any Additional Interest) on any Security on or after the
respective Stated Maturities expressed in such Security.
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.
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ARTICLE VI
The Trustee
-----------
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct except that:
(i) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of Holders pursuant to Section 5.12 relating to the
time, method
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and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of such
series.
(d) 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 there shall be reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to its against such risk or
liability is not assured to it.
(e) 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 6.02. NOTICE OF DEFAULTS. Within 90 days after actual
knowledge by a Responsible Officer of the Trustee of the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as their
names and addresses appear in the Securities Register, notice of such default
hereunder known to a Responsible Officer of the Trustee, unless such default
shall have been cured or waived; PROVIDED, HOWEVER, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, the Trustee
shall be fully protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities of
such series; and PROVIDED, FURTHER, HOWEVER, that, in the case of any default of
the character specified in Section 5.01(3), no such notice to Holders of
Securities of such series 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.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject
to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting
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upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
Security 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) shall
be entitled to receive and may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection 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 security or indemnity
satisfactory to it 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, indenture, Security or other paper or document,
but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
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(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;
(h) the Trustee shall not be under any obligation
to take any action that is discretionary under the
provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any
Event of Default unless either (1) a Responsible Officer of the Trustee
shall have actual knowledge or (2) the Trustee shall have received
notice thereof in accordance with Section 1.05(1) hereof from the
Company or a Holder;
(j) no permissive power or authority available to
the Trustee shall be construed as a duty; and
(k) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities (including the
Restrictive Securities Legends thereon), except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or any offering or disclosure materials prepared in connection
therewith. The Trustee shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES. The Trustee, any Paying
Agent, Securities 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 6.08 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.06. 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
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Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. The Company,
as borrower on the Securities, agrees:
(1) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation a
trustee of an express trust);
(2) 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
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (other than taxes based upon,
measured by or determined by the income of the Trustee) (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith, arising
out of or in connection with the acceptance or administration of this
trust or the performance of its duties hereunder, including the 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.
The obligations of the Company under this Section 6.07 shall
survive the termination of this Indenture or the earlier resignation or removal
of the Trustee.
To secure the Company's payment obligations in this Section,
the Company and the Holders agree that the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee. Such
lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.01(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute
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78
expenses of administration under the Bankruptcy Code of 1978, as amended, or any
successor statute.
The provisions of this Section 6.07 shall survive the
termination of this Indenture.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS. The
Trustee for the Securities of any series issued hereunder shall be subject to
the provisions of Section 310(b) of the Trust Indenture Act. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second-to-last paragraph of Section 301(b) of the Trust
Indenture Act.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED, ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws
of the United States of America or of any state, territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
state, territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to the supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision of examination by Federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation 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. Neither the Company nor any Person directly or indirectly
controlling,
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controlled by or under common control with the Company shall serve as Trustee
for the Securities of any series issued hereunder.
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 under 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 an instrument of acceptance by a Successor Trustee 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:
(i) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) 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, acting pursuant to the authority of a Board
Resolution, may remove the Trustee, 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,
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petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a Successor Trustee.
(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 more series, the Company, by
a Board Resolution, shall promptly appoint a Successor Trustee with respect to
the Securities of that or those series. 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, become the Successor Trustee with respect to the Securities
of such series and 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 hereinafter provided, within 30 days of such resignation or removal the
Trustee or any Holder who has been a Holder of a Security for at least six
months, subject to Section 5.14, on behalf of himself and all others similarly
situated, may 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
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities of such series as their names an addresses appear in
the Securities Register. 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
<PAGE> 81
81
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.
(b) In case of the appointment hereunder of the 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 a written instrument
or 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 written instrument or supplemental
indenture shall constitute such Trustee co-trustees 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 written instrument or 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.
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(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 rights, powers and trusts referred
to in paragraph (a) or (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. In the event that the Trust Indenture Act applies
to this Indenture at the time that any Successor Trustee is appointed, such
Successor Trustee shall qualify under such Act.
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 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 of 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 (including qualification under the Trustee Indenture Act, if
applicable), 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, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such Successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
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 (each, an
"Authenticating Agent") with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of
<PAGE> 83
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such series issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof, 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. Where 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. 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, or of any state, Territory 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 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 all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, 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
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successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.06 to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. 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 provision of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of each series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alterative certificate of authentication in the following form:
This is one of the Securities referred to in the within
mentioned Indenture.
Dated:
--------------------------
Agent Trustee
by
------------------------
As Authenticating Agent
by
------------------------
Authorized Signatory
SECTION 6.15. TRUSTEE'S RIGHTS AND OBLIGATIONS AFTER EXCHANGE
AND REGISTRATION. If a registration is effected pursuant to Article XII,
following the exchange of the Capital Securities for registered securities and
the qualification of this Indenture under the Trust Indenture Act, the Trustee
shall have and be subject to all the duties and responsibilities specified with
respect to an indenture trustee under the Trust Indenture Act. Subject to such
provisions, the Trustee is under no obligation to exercise any of the powers
vested in it by this Indenture at the request of any holder of the Securities,
unless offered indemnity to its satisfaction by such holder against the
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costs, expenses and liabilities which might be incurred thereby. The Trustee
will not be required to expend or risk its own funds or otherwise incur personal
financial liability in the performance of its duties if the Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
Notwithstanding the foregoing, nothing in this Section 6.15 shall be deemed to
abrogate any of the rights, indemnities or protections otherwise provided to the
Trustee under this Indenture.
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS. The Company will furnish or cause to be furnished to the Trustee:
(a) quarterly, not more than 15 days after each Regular Record
Date in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, 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
Securities Registrar.
SECTION 7.02. 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 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of 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 in
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee
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that neither the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of the disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.03. 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.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than the last calendar
day in February of each calendar year, commencing with the last calendar day in
February of the year following the Original Issue Date.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which the Securities are listed and also with the Commission. The Company
will notify the Trustee whenever the Securities are listed on any securities
exchange.
SECTION 7.04. REPORTS BY COMPANY. The Company shall file with
the Trustee (and also, if a registration has been effected pursuant to Article
XII, with 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 in the Trust
Indenture Act; PROVIDED that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act, shall be filed with the Trustee within 15 days after the same is
required to be filed with the Commission. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, if a registration has been effected pursuant to
Article XII, the Company shall continue to file with the Commission and provide
the Trustee with the annual reports and the information, documents and other
reports which are specified in Sections 13 and 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of Trust Indenture Act
Section 314(a). Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which
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the Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person (except for assets conveyed or otherwise transferred
in the ordinary course of business, including in connection with securitizations
or other off-balance sheet transactions), and no Person shall consolidate with
or merge with or into the Company, unless:
(1) in case the Company shall consolidate with or merge with
or into another Person and is not the surviving entity or convey,
transfer or lease its properties and assets substantially as an
entirety to any Person, the corporation 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,
partnership or trust organized and existing under the laws of the
United States of America or any State 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 premium, if any) and
interest (including any Additional Interest) on all the Securities and
the performance of every covenant and every obligation of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing (and which, other than a payment default, did not exist
prior to such event); 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 any such
supplemental indenture complies with this Article and that all
conditions
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precedent herein provided for relating to such transaction have been
complied with; and the Trustee, subject to Section 6.01, may rely upon
such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.01.
SECTION 8.02. SUCCESSOR COMPANY SUBSTITUTED. Upon any
consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.01, the
successor corporation 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 in the event of any such conveyance, transfer
or lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
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ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. 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:
(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 contained;
(2) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company;
(3) to establish the form or terms of Securities
of any series as permitted by Sections 2.01 or 3.01;
(4) 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;
(5) to add any additional Events of Default;
(6) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination (a) shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision or (b) shall not
apply to any Outstanding Securities;
(7) 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 (7) shall not materially adversely affect the
interest of (a) the Holders of Securities of any series or, (b) in the
case of the Securities of a series issued to a National City
<PAGE> 90
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Capital Trust and for so long as any of the corresponding series of
Capital Securities shall remain outstanding, the holders of such
Capital Securities;
(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) if a registration has been effected pursuant to Article
XII, to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.02. 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) except to the extent permitted by Section 3.13 or as
otherwise specified as contemplated by Section 3.01 with respect to the
extension of the interest payment period of the Securities of any
series, change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption
thereof, or reduce the amount of principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02, or change the place of
payment where, or the coin or currency in which, any Security 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
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the case of redemption, on or after the date fixed for redemption
thereof);
(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 compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.05, 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 Security affected
thereby; or
(4) modify the provisions in Article XIII of this Indenture
with respect to the subordination of Outstanding Securities of any
series in a manner adverse to the Holders thereof;
PROVIDED that, in the case of the Securities of a series issued to a National
City Capital Trust, so long as any of the corresponding series of Capital
Securities remain outstanding, no such amendment shall be made that adversely
affects the holders of such Capital Securities, and no termination of this
Indenture shall occur, and no waiver of any Event of Default or compliance with
any covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate Liquidation Amount of
such Capital Securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and, subject
to Section 3.08, unpaid interest (including any Additional Interest) thereon
have been paid in full; and PROVIDED FURTHER, HOWEVER, that in the case of the
Securities of a series issued to a National City Capital Trust, so long as any
of the corresponding series of Capital Securities remain outstanding, no
amendment shall be made to Section 5.08 of this Indenture that would impair the
rights of the holders of such Capital Securities provided herein without the
prior consent of the holders of each Capital Security then outstanding unless
and until the principal (and premium, if any) of the Securities of such series
and all accrued and (subject to Section 3.08) unpaid interest (including any
Additional Interest) thereon have been paid in full.
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The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that 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 9.03. 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 6.01) shall be fully protected in conclusively relying upon,
an Officer's Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with. 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, or which may subject it to liability or be contrary to applicable
law.
SECTION 9.04. 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.
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SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. No
supplemental indenture will be qualified or executed pursuant to the Trust
Indenture Act unless this Indenture is so qualified, or in connection with
Capital Securities which are registered, if any, under the Exchange Act, upon
the effectiveness of a registration statement and the consummation of an
exchange offer pursuant to a Registration Agreement as contemplated in Article
XII hereof. Every supplemental indenture so qualified or executed shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of 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 10.01. 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 premium, if any) and
interest on the Securities of that series in accordance with the terms of such
Securities and this Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. The Company
will maintain in each Place of Payment for any series, an office or agency where
Securities of that series may be presented or surrendered for payment and an
office or agency where Securities may be surrendered for transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations,
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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 may be presented or surrendered
for any or all of 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
and any change in the location of any such office or agency.
SECTION 10.03. MONEY FOR SECURITY 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 before each due date of the
principal of (and premium, if any) or interest on any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or 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
failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to 10:00 a.m. New York City time on each due date of the principal
of or interest on any Securities, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal
(and premium, if any) or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and make available for delivery 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:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
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(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities) in the making of any
payment of principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(4) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent.
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 the Company or 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 (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request to
the Company, or (if then held by the Company) shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) 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 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.
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SECTION 10.04. STATEMENT AS TO COMPLIANCE. The Company shall
deliver to the Trustee, within 120 days after the end of such calendar year of
the Company commencing after the date hereof, an Officers' Certificate executed
by authorized officers at least one of whom shall be the principal executive,
financial or accounting officer of the Company covering the preceding calendar
year, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions of this
Indenture, and if the Company shall be in such default, specifying all such
defaults and the nature and status thereof of which they may have knowledge. For
the purpose of this Section 10.04, compliance shall be determined without regard
to any grace period (other than an Extension Period) or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 10.05. WAIVER OF CERTAIN COVENANTS. The Company may
omit in any particular instance to comply with any covenant or condition as
specified as contemplated by Section 3.01 with respect to the Securities of any
series, if before or after the time for such compliance the Holders of at least
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 covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 10.06. PAYMENT OF THE TRUST'S COSTS AND EXPENSES.
Since the National City Capital Trusts are being formed solely to facilitate the
investment in the Securities, the Company, as borrower on the Securities, hereby
covenants to pay all debts and obligations (other than with respect to the
payment of principal, interest and premium, if any, on the Trust Securities) and
all costs and expenses of such Trusts (including, but not limited to, all costs
and expenses relating to the organization of such Trusts, the fees and expenses
of the Trustees and all costs and expenses relating to the operation of such
Trusts) and to pay any and all taxes, duties, assessments or other governmental
charges of whatever nature (other than United States withholding taxes) imposed
on such Trusts by the United States, or any other taxing authority (such
payments of amounts in connection with taxes being herein referred to as
"Additional Sums"), so that the net amounts received and retained by such Trusts
and their respective Property
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Trustees after paying such expenses or Additional Sums will be equal to the
amounts such Trusts and Property Trustees would have received had no such
costs, expenses or taxes, duties, assessments or other governmental charges
been incurred by or imposed on such Trusts. The foregoing obligations of the
Company are for the benefit of, and shall be enforceable by, any person to whom
such debts, obligations, costs, expenses and taxes are owed (a "Creditor")
whether or not such Creditor has received notice thereof. Any such Creditor may
enforce such obligations of the Company hereunder directly against the Company,
and the Company hereby irrevocably waives any right or remedy to require that
any such Creditor take any action against any Trust or any other person before
proceeding against the Company. The Company also agrees hereby to execute such
additional agreements as may be necessary or desirable to give full effect to
the foregoing.
SECTION 10.07. ADDITIONAL COVENANTS. The Company covenants and
agrees with each Holder of Securities of a series issued to a National City
Capital Trust that it will not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any shares of the Company's capital stock (which includes common and preferred
stock), or (ii) make any payment of principal, interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Company (including
Other Debentures) that rank PARI PASSU with or junior in interest to the
Securities of such series or (iii) make any guarantee payments with respect to
any guarantee by the Company of debt securities of any subsidiary of the Company
(including Other Guarantees) if such guarantee ranks PARI PASSU with or junior
in interest to the Securities of such series (other than (a) dividends or
distributions in Common Stock of the Company, (b) any declaration of a dividend
in connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the National
City Guarantee, (d) purchases or acquisitions of shares of the Company's Common
Stock in connection with the satisfaction by the Company of its obligations
under any employee benefit plan or other contractual obligation of the Company
(other than a contractual obligation ranking PARI PASSU with or junior in
interest to these Securities), (e) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock or (f) the purchase of fractional interests in shares of the Company's
capital stock pursuant
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to the conversion or exchange provisions of such capital stock or the security
being converted or exchanged), if at such time (i) there shall have occurred an
Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the related National City Guarantee or (iii)
the Company shall have given notice of its election to begin an Extension Period
as provided herein and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a
series issued to a National City Capital Trust (i) to maintain directly, or
indirectly through a wholly owned Subsidiary, 100% ownership of the Common
Securities of such National City Capital Trust; PROVIDED, HOWEVER, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) not to voluntarily terminate, windup
or liquidate such National City Capital Trust, except (a) in connection with a
distribution of the Securities of such series to the holders of Capital
Securities in liquidation of such National City Capital Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable best efforts,
consistent with the terms and provisions of such Trust Agreement, to cause such
National City Capital Trust to remain classified as a grantor trustee and not as
an association taxable as a corporation for United States Federal income tax
purposes.
SECTION 10.08. INFORMATION RETURNS. On or before December 15
of each year during which any Securities are outstanding, the Company shall
furnish to each Paying Agent such information as may be reasonably requested by
each Paying Agent in order that such Paying Agent may prepare the information
which it is required to report for such year on Internal Revenue Service Forms
1096 and 1099. Such information shall include the amount of original issue
discount, if any, includible in income for each $1,000 of principal amount at
Stated Maturity of outstanding Securities during such year.
SECTION 10.09. STATEMENT BY OFFICERS AS TO DEFAULT. The
Company shall deliver to the Trustee, within five days after the Company becomes
aware of the occurrence of any Event of Default, an Officers' Certificate
setting forth the details of such Event of Default and the action which the
Company proposes to take with respect thereto, if known at such time.
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SECTION 10.10. DELIVERY OF CERTAIN INFORMATION. If specified
as contemplated by Section 3.01 with respect to a series of Securities, at any
time when the Company is not subject to Section 13 or 15(d) of the Exchange Act,
upon the request of a Holder of a Security, the Company will promptly furnish or
cause to be furnished Rule 144A Information (as defined below) to such Holder,
to a prospective purchaser who is a "qualified institutional buyer", within the
meaning of Rule 144A under the Securities Act, of such Security designated by
such Holder in order to permit compliance by such Holder with Rule 144A in
connection with the resale of such Security by such Holder; PROVIDED, HOWEVER,
that unless otherwise specified as contemplated by Section 3.01, the Company
shall not be required to furnish such information in connection with any request
made on or after the date which is two years from the later of (i) the date such
Security (or any predecessor Security) was acquired from the Company or (ii) the
date such Security (or any predecessor Security) was last acquired from an
"affiliate" of the Company within the meaning of Rule 144 under the Securities
Act. "Rule 144A Information" shall be such information as is specified pursuant
to Rule 144A(d)(4) under the Securities Act as in effect on the date hereof.
ARTICLE XI
Redemption or Prepayment of Securities
--------------------------------------
SECTION 11.01. APPLICABILITY OF THIS ARTICLE. Redemption of
Securities (whether by operation of a sinking fund or otherwise) as permitted or
required by any form of Security issued pursuant to this Indenture shall be made
in accordance with such form of Security and this Article; PROVIDED, HOWEVER,
that if any provision of any such form of Security shall conflict with any
provision of this Article, the provision of such form of Security shall govern.
Except as otherwise set forth in the form of Security for such series, each
Security shall be subject to partial redemption only in an amount not less than
$100,000 or, in the case of the Securities of a series issued to a National City
Capital Trust, an amount of $100,000, or an integral multiple of $100,000 in
excess thereof.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any Early Optional Redemption (except
in the limited circumstances described in the following sentence), Optional
Redemption or a Special Event Redemption, the Company shall, not less than 30
nor more
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than 60 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee and, in the
case of Securities held by or on behalf of a National City Capital Trust, the
Property Trustee of such date and of the principal amount of Securities of that
series to be redeemed. In the event a Tax Event, '40 Act Event or Capital
Treatment Event shall have occurred not more than 30 days prior to the
Submission Deadline, the Company shall not less than five Business Days prior to
the date fixed for redemption notify the Trustee and, in the case of Securities
held by or on behalf of a National City Capital Trust, the Property Trustee of
such date and of the principal amount of Securities of that series 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, the
Company shall furnish the Trustee with an Officers' Certificate and an Opinion
of Counsel evidencing compliance with such restriction. Any such notice given to
the Trustee hereunder shall include the information required by Section 11.04
hereof.
SECTION 11.03. SELECTION OF SECURITIES TO BE REDEEMED. If less
than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security all as designated to the Trustee
by the Company), 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 a portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), 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 partial redemption and 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 Security
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redeemed or to be redeemed only in part, to the portion of the principal amount
of such Security which has been or is to be redeemed. If the Company shall so
direct, Securities registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for
redemption.
SECTION 11.04. NOTICE OF REDEMPTION. Notice of (i) any Early
Optional Redemption (except in the limited circumstances described in the
following sentence), Optional Redemption, Tax Event, '40 Act or Capital
Treatment Redemption shall be given by first-class mail, postage prepaid, mailed
not later than the thirtieth day, and not earlier than the sixtieth day, prior
to the date fixed for redemption, and (ii) an Early Optional Redemption when a
Tax Event, '40 Act Event or Capital Treatment shall have occurred not more than
30 days prior to the Submission Deadline, shall be given by first-class mail,
postage prepaid, mailed not later than the fifth Business Day prior to the date
fixed for redemption, to each Holder of Securities to be redeemed, at the
address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each
notice of redemption shall state:
(a) the Redemption Date for Securities of such
series;
(b) the redemption price at which Securities of
such series are to be redeemed;
(c) if less than all Outstanding Securities of such particular
series and having the same terms are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal
amounts) of the particular Securities to be redeemed;
(d) that on the date fixed for redemption, the redemption
price at which such Securities are to be redeemed will become due and
payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the redemption price at which such
Securities are to be redeemed;
(f) that the redemption is for a sinking fund, if
such is the case;
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(g) such other provisions as may be required in
respect of the terms of a particular series of
Securities; and
(h) the CUSIP number if any.
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
not be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00
a.m. New York City time on the redemption date specified in the notice of
redemption given as provided in Section 11.04, the Company will deposit with the
Trustee or with one or more Paying Agents an amount of money sufficient to
redeem on the redemption date all the Securities so called for redemption at the
applicable redemption price.
SECTION 11.06. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
any notice of redemption has been given as provided in Section 11.04, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable redemption price. On presentation and surrender
of such Securities at a place of payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price.
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities of
that same series, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms. If the Global Security is so
surrendered, such new Security will (subject to Section 3.06) also be a new
Global Security.
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If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal of and premium, if any, on
such Security shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Security.
SECTION 11.07. COMPANY'S RIGHT OF REDEMPTION. Unless otherwise
specified as contemplated by Section 3.01 with respect to the Securities of a
particular series and notwithstanding any additional redemption rights that may
be so specified:
(a) the Company may on the Rate Reset Date, at its option,
subject to the terms and conditions of this Article XI, redeem the Securities in
whole but not in part prior to Maturity, at 100% of the aggregate principal
amount of the Securities, plus accrued and unpaid interest to the Redemption
Date; and
(b) the Company may on or after June 1, 2009 at any time or
from time to time, at its option, subject to the terms and conditions of Article
XI of the Indenture and and subject to the Company having received prior
approval of the Federal Reserve if then required under applicable guidelines of
the Federal Reserve to do so, redeem the Securities in whole or in part at the
Optional Redemption Price; and
(c) if at any time after the Rate Reset Date a Tax Event, '40
Act Event or Capital Treatment Event shall occur and be continuing, the Company
may, at its option and subject to the provisions of this Article XI and subject
to the Company having received prior approval of the Federal Reserve if then
required under applicable guidelines of the Federal Reserve to do so, redeem the
Securities, in whole, but not in part, at any time within 90 days after the
occurrence of such Tax Event, '40 Act Event or Capital Treatment Event, a a
redemption price equal to (i) the MakeWhole Amount, in the case of a redemption
after the Rate Reset Date and before June 1, 2009, or (ii) the Optional
Redemption Price, on or after June 1, 2009.
ARTICLE XII
Exchange and Registration Rights
--------------------------------
SECTION 12.01. EXCHANGE. (a) If specified as contemplated by
Section 3.01 for Securities for any series, the Company and a National City
Capital Trust holding such Securities shall enter into a registration rights
agreement (a "Registration Agreement") for the benefit of the holders
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of any Capital Securities of such National City Capital Trust which are not
registered under the Securities Act providing that such National City Capital
Trust may in its sole discretion, exchange such Capital Securities for
registered securities, by means of an exchange offer registration statement (an
"Exchange Offer Registration Statement"), issued by such National City Capital
Trust with terms identical in all material respects to the terms of the Capital
Securities (the "Exchange Capital Securities").
(b) In the event that National City Capital Trust is
successful in providing Exchange Capital Securities to the holders of Capital
Securities as described in clause (a) of this Section 12.01, the Company may as
specified in the Registration Agreement, contemporaneously exchange the
Securities held by or on behalf of such National City Capital Trust for new
securities issued by the Company (the "Exchange Securities") with terms
identical in all material respects to the terms of the Securities (except that
the interest rate step-up provisions and the transfer restrictions will be
eliminated), and shall further contemporaneously exchange the National City
Guarantee then held by the Guarantee Trustee under the Guarantee Agreement for a
new guarantee of the Company (the "Exchange Guarantee") with terms identical in
all material respects to the terms of the National City Guarantee.
SECTION 12.02. REGISTRATION. If specified as contemplated by
Section 3.01 for Securities of any series, the Company and such National City
Capital Trust shall (a) file a shelf registration statement under the Securities
Act covering resales of the Capital Securities (the "Shelf Registration
Statement"), (b) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act, and
(c) use their reasonable best efforts to cause such Shelf Registration Statement
to remain effective for as long as specified as contemplated by the Registration
Agreement. The Administrative Trustees shall promptly cause to be delivered to
the holders, the Delaware Trustee and the Property Trustee written notice of
their intent to file such Registration Statement. All costs incurred in
connection with the filing and maintenance of such Registration Statement shall
be borne by the Company.
SECTION 12.03. SPECIAL INTEREST. If specified as contemplated
by Section 3.01 for Securities of any series, the Company may enter into an
agreement providing that, in the event that (i) an Exchange Offer Registration
Statement is not filed, subject to certain exceptions described in the
Registration Agreement (ii) such Exchange Offer Registration
<PAGE> 105
105
Statement is not declared effective within the time period contemplated by the
applicable registration rights agreement, unless such Exchange Offer
Registration Statement is not required to be declared effective pursuant to the
Registration Agreement, (iii) the exchange offer pursuant to the Exchange Offer
Registration Statement is not consummated or the Shelf Registration Statement is
not declared effective within the time period contemplated by the applicable
registration rights agreement or (iv) such Exchange Offer Registration Statement
or Registration Statement does not remain effective for as long as contemplated
by the applicable registration rights agreement, the Company shall pay to the
relevant National City Capital Trust, and such National City Capital Trust shall
pay to the holders of the Capital Securities, an amount of additional interest
on the Securities held by that Trust ("Special Interest"), which may be either
fixed or based on the duration and/or principal amount of the Securities, all as
set forth in the applicable registration rights agreement.
SECTION 12.04. COMPLIANCE WITH LAW. Any registration rights
agreement entered into hereunder may provide that any holder of Capital
Securities who is considered to be an Affiliate of the Company or the National
City Capital Trust or any underwriter in connection with the issuance and sale
of Capital Securities be barred from participation in the Exchange Offer
Registration Statement or other Shelf Registration Statement, in accordance with
applicable law or regulation.
ARTICLE XIII
Sinking Funds
-------------
SECTION 13.01. APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by
Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment in excess of such minimum
amount which is permitted to be made by the terms of such Securities of any
series is herein referred to as an "optional sinking fund payment". If provided
for by the terms of any Securities of any series, the case amount of any sinking
fund payment may be subject to reduction as
<PAGE> 106
106
provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption (or purchase by tender or otherwise) of Securities of any series as
provided for by the terms of such Securities.
SECTION 13.02. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option, at any time no more than 16 months and no less than 45 days prior to
the date on which such sinking fund payment is due, deliver to the Trustee
Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Securities of such series that have been redeemed through the
application of mandatory or optional sinking fund payments pursuant to the terms
of the Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value; PROVIDED that the Securities to be so credited have not
been previously so credited. The Securities to be so credited shall be received
and credited for such purpose by the Trustee at the redemption price for such
Securities, as specified in the Securities so to be redeemed, for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. REDEMPTION OF SECURITIES FOR SINKING FUND. Not
less than 45 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 such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.01) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 13.02 and will also deliver to the
Trustee any Securities to be so delivered. Such Certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
Certificate (or, as required by this Indenture, the Securities and coupons, if
any, specified in such Certificate) by the due date therefor, the sinking fund
payment due on the succeeding
<PAGE> 107
107
sinking fund payment date for such series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of the Securities of such
series subject to a mandatory sinking fund payment without the right to deliver
or credit securities as provided in Section 13.02 and without the right to make
the optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the redemption price specified in such Securities with respect
to the sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or by the Company if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.03) for such series and
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 13.03. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
Trustee (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 10.03) on the last sinking fund payment
date with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities of
such series at Maturity. The Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.03 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 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 11.06. On or before each sinking fund
payment date, the Company shall pay to the Trustee (or, if the Company is acting
as its own Paying Agent, the Company shall segregate and hold in trust as
provided in Section 10.03) in cash a sum in the currency in which Securities of
such series are payable (except as provided pursuant to Section 3.01) equal to
the principal, premium, if any, and any interest accrued
<PAGE> 108
108
to the redemption date for Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section 13.03.
Neither the Trustee nor the Company shall redeem any
Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company if the Company is then acting as its own Paying Agent) shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Company) for that purpose in accordance with the
terms of this Article XIII. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities and coupons, if any, of such series; PROVIDED,
HOWEVER, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 13.03.
ARTICLE XIV
Subordination of Securities
---------------------------
SECTION 14.01. SECURITIES SUBORDINATE TO SENIOR DEBT. The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on each and
all of the Securities are hereby expressly made subordinate and junior in right
of payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt.
SECTION 14.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
<PAGE> 109
109
proceeding relative to the Company, its creditors or its property, (b) any
proceeding for the liquidation, dissolution, or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (c) any assignment by the Company for the benefit of creditors or
(d) any other marshaling of the assets of the Company (each such event, if any,
herein sometimes referred to as a "Proceeding"), then the holders of Senior Debt
on and after the Rate Reset Date shall be entitled to receive payment in full of
principal of (and premium, if any) and interest, if any, and all other amounts
owing on such Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, before the Holders of the Securities are entitled to receive or
retain any payment or distribution of any kind or character, whether in cash,
property or securities (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other debt of the Company
(including any series of the Securities) subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as a
"Junior Subordinated Payment"), on account of principal of (or premium, if any)
or interest (including any Additional Interest) on the Securities or on account
of the purchase or other acquisition of Securities by the Company or any
Subsidiary and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any payment or distribution of
any kind or character, whether in cash, property or securities, including any
Junior Subordinated Payment, which may be payable or deliverable in respect of
the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the 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, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to a Responsible Officer of 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 Debt remaining unpaid, to the extent necessary to
pay all Senior
<PAGE> 110
110
Debt in full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in 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 or reorganization or readjustment, in each case, which securities are
subordinated in right of payment to all then outstanding Senior Debt to
substantially 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 the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
or the liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article VIII shall not be deemed a
Proceeding 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 sale such properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
SECTION 14.03. PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION
OF SECURITIES. In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of the Senior
Debt outstanding at the time such Securities so become due and payable shall
first be entitled to receive payment in full of all amounts due on or in respect
of such Senior Debt (including any amounts due upon acceleration), or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Securities will be entitled to receive or retain any payment or distribution of
any kind or character, whether in cash, property or securities (including any
Junior Subordinated Payment) by the Company on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities by
the Company or any Subsidiary; PROVIDED, HOWEVER, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
this Indenture or as otherwise specified as contemplated by Section 3.01 for the
Securities of any
<PAGE> 111
111
series by delivering and crediting pursuant to Section 13.02 or as otherwise
specified as contemplated by Section 3.01 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security 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 a Responsible Officer of
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 14.02 would be applicable.
SECTION 14.04. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT. (a) In
the event and during the continuation of any default by the Company in the
payment of principal of (or premium, if any) or interest, if any, on any Senior
Debt, or in the event that any event of default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared 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 proceeding shall be pending with respect to any such default in payment
or event of default, then on and after the Rate Reset Date no direct or indirect
payment or distribution of any kind or character, whether in cash, property or
securities (including any Junior Subordinated Payment), by set-off or otherwise,
shall be made or agreed to be made by the Company on account of principal of (or
premium, if any) or interest (including any Additional Interest) on the
Securities or on account of any redemption, repayment, retirement, purchase or
other acquisition of any Securities by the Company or any Subsidiary; PROVIDED,
HOWEVER, that (i) nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with this Indenture or as otherwise specified
as contemplated by Section 3.01 for the Securities of any series by delivering
and crediting pursuant to Section 13.02 or as otherwise specified as
contemplated by Section 3.01 for the Securities of any series Securities which
have been acquired (upon redemption or otherwise) prior to such default in
payment or event of default and (ii) sums deposited in trust shall not
<PAGE> 112
112
be paid to Senior Debt, but shall instead be paid to the Persons for whom such
sums are held in trust.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security 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 a Responsible Officer of
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 14.02 would be applicable.
SECTION 14.05. PAYMENT PERMITTED IF NO DEFAULT. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the pendency
of any Proceeding referred to in Section 14.02 or under the conditions described
in Sections 14.03 and 14.04, from making payments at any time of principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities, 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 (including any Additional Interest) on the Securities or the
retention of such payment by the Holders, if, at the time of such payment by the
Company or application by the Trustee, as the case may be, it did not have
knowledge that such payment or application, as the case may be, would have been
prohibited by the provisions of this Article.
SECTION 14.06. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
DEBT. Subject to the payment in full of all amounts due on all Senior Debt to
the extent required under Sections 14.02 and 14.03 of this Indenture, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Securities shall
be subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article (equally and
ratably with the holders of all indebtedness of the Company which by its express
terms is subordinated to Senior Debt of the Company to substantially the same
extent as the Securities are subordinated to the Senior Debt and is entitled to
like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt to
<PAGE> 113
113
receive payments and distributions of cash, property and securities applicable
to the Senior Debt until the principal of (and premium, if any) and interest on
the Securities shall be paid in full. For purposes of such subrogation or
assignment, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities 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 Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 14.07. 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 on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities 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 and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 14.08. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Holder of a Security by his or her acceptance thereof authorizes and directs the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 14.09. NO WAIVER OF SUBORDINATION PROVISIONS. No right
of any present or future holder of any Senior Debt to enforce subordination as
herein provided
<PAGE> 114
114
shall at 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 act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or be otherwise charged with.
SECTION 14.10. 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. 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, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior Debt
or from any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true); 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 monies may become
payable for any purpose (including the payment of the principal of (and premium,
if any) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it within two Business Days prior to
such date.
SECTION 14.11. 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 Article
VI, and the Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in which
such 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, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
<PAGE> 115
115
thereon and all other facts pertinent thereto or to this Article.
SECTION 14.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
DEBT. The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 14.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
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 Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
SECTION 14.14. 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.
SECTION 14.15. Certain Conversions or Exchanges Deemed
Payment. For purposes of this Article XIV only, (a) the issuance and delivery of
junior securities (as defined below) upon conversion or exchange of Securities
shall not be deemed to constitute a payment or distribution on account of the
principal of (and premium, if any) or interest (including any Additional
Interest) on the Securities or on account of the purchase or other acquisition
of Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
Security shall be deemed to constitute payment on account of the principal of
such Security. For the purposes of this Section, the term "junior securities"
means (i) shares of any stock of any class of the Company and (ii) securities of
the Company which are subordinated in right of payment to all Senior Debt which
may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent
<PAGE> 116
116
as, or to a greater extent than, the Securities are so subordinated as provided
in this Article.
This instrument may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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 written above.
NATIONAL CITY CORPORATION,
by /s/ Jeffery D. Kelly
------------------------
Name: Jeffery D. Kelly
Title: Executive Vice President
and Senior Investment
Officer
[Seal]
THE BANK OF NEW YORK, as
Trustee
by /s/ Lucille Firrincieli
-------------------------
Name: Lucille Firrincieli
Title: Assistant Vice
President
[Seal]
<PAGE> 117
EXHIBIT A
[Form of Restricted Securities Certificate]
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.05 and Section 3.06
of the Debt Securities Indenture)
[ ],
----------------------------
as Security Registrar
[address]
Re: Securities
of National City Capital, Inc. (the "Company")
(the "Securities")
----------------------------------------------
Reference is made to the Debt Securities Indenture, dated as
of June 9, 1997 (the "Indenture"), between National City Capital Inc. and The
Bank of New York, as trustee (the "Trustee"). Terms used herein and defined in
the Indenture or in Regulation D, Rule 144A or Rule 144 under the U.S.
Securities Act of 1933, as amended (the "Securities Act") are used herein as so
defined.
This certificate relates to $__________ aggregate principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
-----------------------------------------------------------
CERTIFICATE No(s).
-----------------------------------------------------
CURRENTLY IN BOOK-ENTRY FORM: Yes No (check one)
--- ---
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary in the name of the Undersigned, as or on behalf of the
Owner. If the Specified Securities are not represented by a Global Security,
they are registered in the name of the Undersigned, as or on behalf of the
Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security. In
<PAGE> 118
2
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with one of the following
as indicated (check one):
(1) transferred to the Company; or
- ----
(2) exchanged for the undersigned's own account
- ---- without transfer; or
(3) transferred pursuant to and in compliance with
- ---- Rule 144A under the Securities Act; or
(4) to an institutional "accredited investor" within
- ---- the meaning of subparagraph (a)(1), (2), (3) or
(7) of Rule 501 under the Securities Act that is
acquiring the Securities for its own account, or
for the account of such an institutional
"accredited investor," for investment purposes and
not with a view to, or for offer or sale in
connection with, any distribution in violation of
the Securities Act; or
(5) transferred pursuant to another available
- ---- exemption from the registration requirements of
the Securities Act.
Unless such transfer is being effected in accordance with one of the above, the
Securities Registrar will refuse to register any of the Securities evidenced by
this certificate in the name of any person other than the Holder thereof;
PROVIDED, HOWEVER, that if (4) or (5) is applicable, the Securities Registrar
may require, prior to registering any such transfer of the Securities such legal
opinions, certifications and other information as the Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act, such as the exemption provided by Rule 144 under such Act;
PROVIDED, FURTHER, that if box (3) is checked, the transferee must also certify
that it is a qualified institutional buyer as defined in Rule 144A.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
<PAGE> 119
3
Dated:
-----------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By:
--------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
<PAGE> 1
Exhibit 4.2
CERTIFICATE OF TRUST
OF
NATIONAL CITY CAPITAL TRUST I
The undersigned, being an Administrative Trustee and the sole
Delaware Trustee of National City Capital Trust I, desiring to form a business
trust pursuant to the Delaware Business Trust Act, 12 DEL. C. Section 3810, ET
SEQ., hereby certify as follows:
(a) The name of the business trust being formed hereby
(the "Trust") is National City Capital Trust I.
(b) The name and business address of the trustee of the
Trust which has its principal place of business in
the State of Delaware are as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
New Castle County
Newark, Delaware 19711
Attention: Corporate Trust
(c) The Trust created hereby shall terminate on May
29, 2037.
(d) This Certificate of Trust shall be effective as of
the date of filing.
DATED: May 29, 1997
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity,
but solely as Delaware Trustee
By: /s/ Walter N. Gitlin
-------------------------------------
Name: WALTER N. GITLIN
Title: Authorized Signatory
/s/ Thomas A. Richlovsky
----------------------------------------
Thomas A. Richlovsky, not in his
individual capacity, but solely as
Administrative Trustee
<PAGE> 1
EXHIBIT 4.3
TRUST AGREEMENT
OF
NATIONAL CITY CAPITAL TRUST I
TRUST AGREEMENT ("Declaration") dated and effective as of May
29, 1997 by the Delaware Trustee (as defined herein), the Sponsor (as defined
herein), the Administrative Trustee (as defined herein), and by the holders from
time to time, of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
WHEREAS, the Delaware Trustee, the Administrative Trustee and
the Sponsor desire to establish National City Capital Trust I (the "Trust")
pursuant to the Delaware Business Trust Act for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debentures Issuer;
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Delaware Business Trust Act
and that this Declaration constitute the governing instrument of such business
trust.
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has
the same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Trust Agreement as
modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this
Declaration unless otherwise specified; and
(e) a reference to the singular includes the plural
and vice versa.
"ADMINISTRATIVE TRUSTEE" means Thomas A. Richlovsky, solely in
such Person's capacity as an Administrative Trustee of the Trust created
hereunder and not in such Person's individual
<PAGE> 2
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor or additional Administrative Trustee appointed as
herein provided.
"AFFILIATE" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"CAPITAL SECURITY" means a security representing an undivided
beneficial interest in the assets of the Trust having such rights and with such
terms as may be set out in this Declaration or in any amendment or restatement
hereof.
"CAPITAL SECURITY HOLDERS" means the persons acquiring Capital
Securities and holding the same, from time to time.
"CERTIFICATE OF TRUST" shall mean the certificate of trust to
be filed pursuant to Section 3810 of the Delaware Business Trust Act.
"COMMISSION" means the Securities and Exchange
Commission.
"COMMON SECURITY" means a security representing an undivided
beneficial interest in the assets of the Trust having such rights and with such
terms as may be set out in this Declaration or in any amendment or restatement
hereof.
"COMMON SECURITY HOLDER" means the Parent, as the owner
of the Common Securities.
"COMPANY INDEMNIFIED PERSON" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee; or (d) any employee or agent of the Trust or its
Affiliates.
"COVERED PERSON" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"DEBENTURE ISSUER" means the Parent in its capacity as
the issuer of the Debentures under the Indenture.
"DEBENTURES" means the series of Debentures to be
issued by the Debenture Issuer and acquired by the Trust.
"DEBENTURE TRUSTEE" means The Bank of New York, as trustee
under the Indenture until a successor is appointed thereunder, and thereafter
means such successor trustee.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of
the Delaware Code, 12 DEL. CODE Section 3801 ET SEQ., as it may be amended
from time to time, or any successor legislation.
2
<PAGE> 3
"DELAWARE TRUSTEE" has the meaning set forth in
Section 3.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"FIDUCIARY INDEMNIFIED PERSON" means (i) each Trustee, (ii)
any Affiliate of any Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any Trustee, and (iv) any employee or agent
of the Trust or its Affiliates.
"INDEMNIFIED PERSON" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"INDENTURE" means the indenture to be entered into between the
Parent and the Debenture Trustee and any indenture supplemental thereto pursuant
to which the Debentures are to be issued or governed.
"OFFERING CIRCULAR" has the meaning set forth in
Section 2.6(b)(i).
"PARENT" means National City Corporation, a Delaware
corporation or any successor entity in a merger, consolidation or similar
reorganization .
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PORTAL" has the meaning set forth in Section
2.6(b)(iii).
"PROPERTY TRUSTEE" has the meaning set forth in
Section 3.4
"PURCHASE AGREEMENT" means the Purchase Agreement by and among
the Parent, the Trust, and UBS Securities, as representative of the Initial
Purchaser (as defined therein).
"SECURITIES" means the Common Securities and the
Capital Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"SPONSOR" means the Parent in its capacity as sponsor of
3
<PAGE> 4
the Trust.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME.
The Trust created by this Declaration is named "National City
Capital Trust 1." The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative Trustee (or the
Administrative Trustees, of there be more than one).
SECTION 2.2 OFFICE.
The address of the principal office of the Trust is c/o
National City Corporation, 1900 East 9th Street, Cleveland, OH 44114-3484. At
any time, the Administrative Trustee (or the Administrative Trustees, if there
be more than one) may designate another principal office of the Trust.
SECTION 2.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Debentures, (b) to distribute the Trust's income as provided in this Declaration
or any amendment or restatement hereof and (c) except as otherwise limited
herein, to engage in only those other activities necessary, or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust.
SECTION 2.4 DECLARATION AND AUTHORITY.
(a) The Administrative Trustee declares that all assets
contributed to the Trust will be held in trust for the benefit of the
holders, from time to time, of the securities representing undivided
beneficial interests in the assets of
4
<PAGE> 5
the Trust issued hereunder, subject to the provisions of this
Declaration. The Sponsor hereby contributes the sum of $10 to be held
by the Administrative Trustee hereunder and to which all other assets
of the Trust, from time to time, shall be added.
(b) Subject to the limitations provided in this Declaration,
the Administrative Trustee (or the Administrative Trustees, if there be
more than one) shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by any Administrative
Trustee in accordance with its powers shall constitute the act of, and
serve to bind, the Trust. In dealing with any Administrative Trustee
acting on behalf of the Trust, no person shall be required to inquire
into the authority of such Administrative Trustee to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of any Administrative Trustee as set forth in this
Declaration.
SECTION 2.5 TITLE TO PROPERTY OF THE TRUST.
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 POWERS OF THE ADMINISTRATIVE TRUSTEE.
The Administrative Trustee (or the Administrative Trustees, if
there be more than one) shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration; PROVIDED, HOWEVER, that
the Trust may issue no more than one initial series of Capital
Securities that may or may not be exchangeable upon certain conditions
into one other series of Capital Securities and no more than one series
of Common Securities, and, PROVIDED, FURTHER, that there shall be no
interests in the Trust other than the Securities and the issuance of
the Securities shall be limited to the simultaneous issuance of both
Capital and Common Securities on the date the Capital Securities are
initially sold and any other date Capital Securities and Common
Securities are sold pursuant to any over-allotment or exchange option
granted by the Trust under the Purchase Agreement;
(b) in connection with the issuance and sale of the
Capital Securities, at the direction of the Sponsor, to:
(i) permit the use of an offering circular (the
"Offering Circular") in preliminary and final form
5
<PAGE> 6
prepared by the Sponsor, in relation to the offering
and sale of Capital Securities (x) to qualified institutional
buyers in reliance on Rule 144A under the Securities Act (y)
to institutional accredited investors as defined in Rule
501(A)(1), (2), (3) or (7) under the Securities Act, and (z)
outside the United States to Non-U.S. persons in offshore
transactions in reliance on Regulation S under the Securities
Act, and to execute and file with the Commission, at such time
as determined by the Sponsor, a registration statement filed
on Form S-3 or Form S-4 prepared by the Sponsor, including any
amendments thereto in relation to the Capital Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Capital Securities in any State in which the Sponsor has
determined to qualify or register such Capital Securities for
sale;
(iii) execute and file an application, prepared by
the Sponsor, to the Private Offerings, Resale and Trading
through Automated Linkages ("PORTAL") Market and, at such time
as determined by the Sponsor to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National
Market for listing or quotation of the Capital Securities:
(iv) execute and enter into the Purchase Agreement
and pricing agreement providing for the sale of the
Capital Securities; and
(v) make any qualifications and take any acts
required under the Trust Indenture Act of 1939;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for
such services;
(d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing.
6
<PAGE> 7
SECTION 2.7 FILING OF CERTIFICATE OF TRUST.
On the date of execution of this Declaration, the Delaware
Trustee and the Administrative Trustee shall cause the filing of the
Certificate of Trust for the Trust in the form attached hereto as Exhibit A
with the Secretary of State of the State of Delaware.
SECTION 2.8 DURATION OF TRUST.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for forty (40) years from the date hereof.
SECTION 2.9 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issuance and sale of the Capital
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Administrative Trustee on
behalf of the Trust with the Commission a registration statement on
Form S-3 or Form S-4 in relation to the Capital Securities, including
any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale of all or part of the Capital
Securities or the Common Securities and to do any and all such acts,
other than actions which must be taken by the Trust, and advise the
Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of
any such States;
(c) to prepare for filing by the Trust an application
to PORTAL for listing upon notice of issuance of any Capital
Securities;
(d) to negotiate the terms of the Purchase Agreement
providing for the sale of the Capital Securities; and
(e) to prepare an offering circular in preliminary and final
form in relation to the offering and sale of Capital Securities as
described in Section 2.6(b)(i) hereof.
SECTION 2.10 DECLARATION BINDING ON SECURITIES HOLDERS.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of
7
<PAGE> 8
this Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 TRUSTEES.
The number of Trustees initially shall be two (2), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; PROVIDED,
HOWEVER, that the number of Trustees shall in no event be less than two (2);
PROVIDED, FURTHER, that one (1) Trustee, in the case of a natural person, shall
be a person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State of
Delaware (the "Delaware Trustee").
SECTION 3.2 ADMINISTRATIVE TRUSTEE.
The initial Administrative Trustee shall be:
Thomas A. Richlovsky
(a) Except as expressly set forth in this Declaration, if
there is more than one Administrative Trustee, any power of the
Administrative Trustees may be exercised by, or with the consent of,
any one such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustee
(or the Administrative Trustees, if there be more than one), and except
as otherwise required by the Delaware Business Trust Act, any
Administrative Trustee is authorized to execute on behalf of the Trust
any documents which the Administrative Trustee (or the Administrative
Trustees, if there be more than one) has the power and authority to
cause the Trust to execute pursuant to Section 2.6; and
(c) an Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purposes of signing any
documents which such Administrative Trustee has power and authority to
cause the Trust to execute pursuant to Section 2.6.
8
<PAGE> 9
SECTION 3.3 DELAWARE TRUSTEE.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporate Trust
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities, of the
Administrative Trustee described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act.
Notwithstanding anything herein to the contrary, the Delaware Trustee shall not
be liable for the acts or omissions of the Trust or of the Administrative
Trustee (or any Administrative Trustee if there be more than one) except with
respect to acts which the Delaware Trustee is expressly obligated or authorized
to undertake under this Declaration or the Delaware Business Trust Act and
except for the gross negligence or willful misconduct of the Delaware Trustee.
SECTION 3.4 PROPERTY TRUSTEE.
Prior to the issuance of the Capital Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Property Trustee")
meeting the requirements of an eligible trustee of the Trust Indenture Act of
1939, as amended, by the execution of an amendment to or restatement of this
Declaration executed by the Administrative Trustee (or the Administrative
Trustees, if there be more than one), the Sponsor, the Property Trustee and the
Delaware Trustee.
SECTION 3.5 NOT RESPONSIBLE FOR RECITALS OR SUFFICIENCY OF
DECLARATION.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and neither the Administrative Trustee nor the
Delaware Trustee assumes any responsibility for their correctness. The
Administrative Trustee and the Delaware Trustee make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Administrative Trustee and the Delaware Trustee make no representations as to
the validity or sufficiency of this Declaration.
9
<PAGE> 10
SECTION 3.6 COMPENSATION OF ADMINISTRATIVE TRUSTEE AND
TRUSTEES.
The Sponsor agrees:
(a) to pay the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable documented
expenses, disbursements and advances incurred or made by the Trustees
in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its or their negligence or bad faith;
(c) To the fullest extent possible the parties intend that
Section 3561 of Title 12 of the Delaware Code shall not apply to the
Trust and that compensation paid pursuant to Section 3.6(a) not be
subject to review by any court under Section 3560 of Title 12 of the
Delaware Code.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Declaration or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable
10
<PAGE> 11
care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of
Securities might properly be paid.
SECTION 4.2 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity, are agreed
by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no
11
<PAGE> 12
duty or obligation to give any consideration to any interest
of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or another express standard,
the Indemnified person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
SECTION 4.3 INDEMNIFICATION.
The Sponsor agrees, to the fullest extent permitted by
applicable law, to indemnify and hold harmless any Indemnified Person from and
against any loss, damage, liability, tax, penalty, expense or claim of any kind
or nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Trust Agreement,
except that no Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions.
SECTION 4.4 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
12
<PAGE> 13
ARTICLE V
AMENDMENTS, TERMINATING, MISCELLANEOUS
SECTION 5.1 AMENDMENTS.
At any time before the issuance of any Securities, this
Declaration may be amended or restated by, and only by, a written instrument
execute by the Administrative Trustee (or all of the Administrative Trustees, if
there be more than one) and the Sponsor, PROVIDED, HOWEVER, that no such
amendment shall modify the duties of the Delaware Trustee without the execution
by such Delaware Trustee of such amendment or restatement, as the case may be.
SECTION 5.2 TERMINATION OF TRUST.
(a) The Trust shall terminate and be of no further
force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a Certificate of Dissolution
or its equivalent with respect to the Sponsor or the failure
of the Sponsor to revive its Charter within ten (10) days
following the revocation of the Sponsor's charter or the
Trust's Certificate of Trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust;
(iv) before the issuance of any Securities, with the
consent of the Administrative Trustee (or all of the
Administrative Trustees, if there be more than one) and the
Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), an Administrative Trustee shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware.
SECTION 5.3 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws. The provisions of Section 3540 of
Title 12 of the Delaware Code shall not apply to the Trust.
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<PAGE> 14
SECTION 5.4 HEADINGS.
Headings contained in this Declaration are inserted for
convenience of reference and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor, the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 5.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of
the signature page and this Declaration may be executed by the affixing of the
signature of each of the parties hereto to one of such counterpart signature
pages. All such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year above written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity,
but solely as Delaware Trustee
By: /s/ Walter N. Gitlin
--------------------------------------
Name: WALTER N. GITLIN
Title: Authorized Signatory
/s/ Thomas A. Richlovsky
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Thomas A. Richlovsky, not in his
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individual capacity, but solely as
Administrative Trustee
NATIONAL CITY CORPORATION,
as Sponsor
By: /s/ Thomas A. Richlovsky
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Name: THOMAS A. RICHLOVSKY
Title: Senior Vice President and
Treasurer
14
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EXHIBIT 4.4
AMENDED AND RESTATED DECLARATION OF TRUST,
dated as of June 6, 1997, among (i) National City
Corporation, a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) THE
BANK OF NEW YORK, a New York banking corporation, as
property trustee (in such capacity, the "Property
Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank"),
(iii) THE BANK OF NEW YORK (Delaware), a Delaware
banking corporation, as Delaware trustee (the
"Delaware Trustee"), (iv) Janet A. Schwarz, an
individual, David J. Lucido, an individual, and
Nickalista Hartofillis, an individual, each of whose
address is c/o National City Corporation (each an
"Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the
Delaware Trustee and the Administrative Trustees are
referred to collectively herein as the "Trustees")
and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H :
WHEREAS the Depositor, the Delaware Trustee and the
Administrative Trustees have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by entering into a certain
Declaration of Trust, dated as of May 29, 1997 (the "Original Declaration of
Trust"), and by the execution and filing by the Delaware Trustee and the
Administrative Trustees with the Secretary of State of the State of Delaware of
the Certificate of Trust, filed on May 29, 1997 (the "Certificate of Trust");
and attached as Exhibit A; and
WHEREAS the Depositor, the Delaware Trustee and the
Administrative Trustees desire to amend and restate the Original Declaration of
Trust in its entirety as set forth herein to provide for, among other things (i)
the issuance and sale of the Common Securities by the Trust to the Depositor,
(ii) the issuance and sale of the Reset Asset Capital Securities (the "Initial
Capital Securities") by the Trust pursuant to the Purchase Agreement, (iii) the
issuance pursuant to a registered exchange for the Initial Capital Securities of
Reset Asset Capital Securities (the "Exchange Capital Securities") (each of the
Initial Capital Securities
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and the Exchange Capital Securities hereinafter referred to as the "Capital
Securities"), (iv) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Junior Subordinated Debt Securities and (v) the
appointment of The Bank of New York, a New York banking corporation (in such
capacity, the "Property Trustee" and, in its separate corporate capacity and not
in its capacity as Property Trustee, the "Bank");
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, as hereinafter
defined, hereby amends and restates the Original Declaration of Trust in its
entirety and agrees as follows:
ARTICLE I
Defined Terms
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SECTION 1.01. DEFINITIONS. For all purposes of
this Declaration of Trust, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Declaration of Trust;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Declaration of Trust as a whole
and not to any particular Article, Section or other subdivision; and
(e) all references to the date the Capital Securities were
originally issued shall refer to the date the Initial Capital
Securities were originally issued.
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3
"Act" has the meaning specified in Section 6.08.
"Additional Distribution" has the meaning
specified in Section 4.01(c).
"Administrative Action" has the meaning specified
in the definition of "Tax Event" in this Section 1.01.
"Administrative Trustee" means each of David J. Lucido, Janet
A. Scwarz and Nickalista Hartofillis of solely in such Person's capacity as
Administrative Trustee of the Trust continued hereunder and not in such Person's
individual capacity, or such Administrative Trustee's successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the depositary for such Capital Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Applicable Rate" has the meaning specified in
Section 1.01 of the Indenture.
"Bank" has the meaning specified in the preamble
to this Declaration of Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator,
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assignee, trustee, sequestrator (or other similar official) of such
Person or of any substantial part of its property or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or (c) a day
on which the Property Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"Capital Securities" means each of the Initial Capital
Securities to be issued on the date hereof and the Exchange Capital Securities
(as defined in the recitals hereto), treated together as a single class of
securities, each representing an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 per Capital Security and having
the rights provided therefor in this Declaration of Trust, including the right
to receive
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5
Distributions and a Liquidation Distribution as provided herein.
"Capital Securities Certificate" means a certificate
evidencing ownership of Capital Securities, substantially in the form attached
as Exhibit B.
"Capital Securityholder" means a Person in whose name a
Capital Security or Capital Securities is registered in the Securities Register;
and any such Person shall be deemed to be a beneficial owner within the meaning
of the Delaware Business Trust Act.
"Capital Treatment Event" has the meaning specified in Section
1.01 of the Indenture.
"Cede" means Cede & Co.
"Certificate of Trust" has the meaning specified in the
preamble to this Declaration of Trust.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934. The Depository Trust Company shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" has the meaning specified in the Purchase
Agreement.
"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 under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Securities" means the Common Securities, each
representing an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $1,000 and having the rights provided therefor in this
Declaration of Trust, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
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"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the
Property Trustee located in New York City which at the time of the execution of
this Declaration of Trust is located at 101 Barclay Street, Floor 21 West, New
York, New York 10286.
"Declaration of Trust" means this Amended and Restated
Declaration of Trust, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all exhibits hereto,
including, for all purposes of this Amended and Restated Declaration of Trust,
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Amended and Restated Declaration of Trust and any modification,
amendment or supplement of either, respectively.
"Debenture Event of Default" means an "Event of
Default" as defined in the Indenture.
"Debenture Trustee" means The Bank of New York, a New York
banking corporation and any successor.
"Definitive Capital Securities Certificate" means
Capital Securities Certificates issued in certificated, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Sections 3801, ET SEQ., as it may be amended from
time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Declaration of Trust solely in its
capacity as Delaware Trustee of the Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Determination Date" has the meaning specified in Section
4.01(a).
"Distribution Date" has the meaning specified in Section
4.01(a).
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"Distribution Event" has the meaning specified in Section 1.01
of the Indenture.
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of
Default; or
(b) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Declaration of Trust (other than a covenant or warranty, a default in
the performance or breach of which is addressed in clause (b) or (c)
above), and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities, 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
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
"Exchange Capital Securities" has the meaning
specified in the second paragraph of this Agreement.
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"Expiration Date" has the meaning specified in Section 9.01.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Global Capital Securities" means a beneficial interest in the
Capital Securities, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Global Capital Securities Certificate" means a certificate
evidencing ownership of Global Capital Securities, substantially in the form
attached as Exhibit B.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, as trustee,
contemporaneously with the execution and delivery of this Declaration of Trust,
for the benefit of the holders of the Trust Securities, as amended from time to
time.
"Holder" or "Securityholder" means a Person in whose name a
Trust Security or Trust Securities is registered in the Securities Register; any
such Person shall be deemed to be a beneficial owner of such Trust Securities
within the meaning of the Delaware Business Trust Act; PROVIDED, HOWEVER, that
in determining whether the Holders of the requisite amount of Capital Securities
have voted on any matter provided for in this Declaration of Trust, then for the
purpose of any such determination, so long as Definitive Capital Securities
Certificates have not been issued, the term Securityholders or Holders as used
herein shall refer to the Owners.
"Indenture" means the Junior Subordinated Indenture, dated as
of June 6, 1997, between the Depositor and the Debenture Trustee, as trustee,
(as amended or supplemented from time to time) relating to the issuance of the
Junior Subordinated Debt Securities.
"Initial Capital Securities" has the meaning specified in the
second paragraph of this Agreement.
"Initial Purchaser" means UBS Securities LLC.
"Investment Company Act" means the Investment Company Act of
1940.
"Junior Subordinated Debt Securities" means the $515,464,000
aggregate principal amount of the Depositor's
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Reset Asset Capital Securities due June 1, 2029, issued pursuant to the
Indenture.
"Junior Subordinated Debt Securities Redemption Date" means,
with respect to any Junior Subordinated Debt Securities to be redeemed under the
Indenture, the date fixed for redemption under the Indenture or pursuant to an
Officers' Certificate in accordance with the terms of the Indenture.
"Letter of Representations" means the agreement among the
Trust, the Property Trustee and DTC, as the initial Clearing Agency, dated as of
the Closing Date.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Indenture allocated to the
Trust Securities based upon their relative Liquidation Amounts and the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Junior Subordinated Debt Securities to
Holders in connection with a dissolution or liquidation of the Trust, Junior
Subordinated Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date on which Junior Subordinated
Debt Securities are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust pursuant to Section
9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(d).
"'40 Act Event" has the meaning specified in Section 1.01 of
the Indenture.
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"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration of Trust shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of
the examination or investigation undertaken by each
officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and which opinion shall be reasonably acceptable to the
Property Trustee.
"Original Declaration of Trust" has the meaning
specified in the preamble to this Declaration of Trust.
"Outstanding", with respect to Capital Securities, means, as
of the date of determination, all Capital Securities theretofore executed and
delivered under this Declaration of Trust, EXCEPT;
(a) Capital Securities theretofore canceled by the
Property Trustee or delivered to the Property Trustee
for cancellation;
(b) Capital Securities for whose payment or redemption money
in the necessary amount has been
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theretofore deposited with the Property Trustee or any Paying Agent for
the benefit of the Holders of such Capital Securities; PROVIDED that if
such Capital Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Declaration of Trust; and
(c) Capital Securities which have been paid or in exchange for
or in lieu of which other Capital Securities have been executed and
delivered pursuant to Sections 5.02, 5.04, 5.05, 5.11 and 5.13;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Capital Securities have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Capital Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Capital Securities that a Responsible Officer of such
Trustee actually knows to be so owned shall be so disregarded and (b)
the foregoing shall not apply at any time when all of the outstanding
Capital Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Capital Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees
the pledgee's right so to act with respect to such Capital Securities
and that the pledgee is not the Depositor or any Affiliate of the
Depositor.
"Owner" means each Person who is the beneficial owner of a
Global Capital Security as reflected in the records of the Clearing Agency or,
if a Clearing Agency Participant is not the Owner, then as reflected in the
records of a Person maintaining an account with such Clearing Agency (directly
or indirectly), in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated noninterest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in
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respect of the Junior Subordinated Debt Securities will be held and from
which the Property Trustee shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust solely in its capacity as Property Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of
May 29, 1997, among the Trust, the Depositor and the Initial Purchaser.
"Rate Reset Auction" has the meaning in Section 1.01 of the
Indenture.
"Rate Reset Auction Procedures" has the meaning in Section
1.01 of the Indenture.
"Rate Reset Date" has the meaning specified in Section 1.01 of
the Indenture.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this
Declaration of Trust, PROVIDED, HOWEVER, that each Junior Subordinated Debt
Securities Redemption Date and the Stated Maturity of the Junior Subordinated
Debt Securities shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security,
the redemption price paid by the Depositor upon the concurrent redemption of a
Like Amount of Junior Subordinated Debt Securities, allocated on a pro rata
basis (based on Liquidation Amounts) among the Trust Securities.
"Registration Agreement" means the Registration Agreement
dated as of June 6, 1997, among the Trust, the Depositor and the Initial
Purchaser.
"Registration Exchange Offer" has the meaning specified in the
Registration Agreement.
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"Registration Statement" has the meaning specified
in the Registration Agreement.
"Relevant Trustee" has the meaning specified in
Section 8.10.
"Remarketing Agent" has the meaning specified in
Section 1.01 of the Indenture.
"Responsible Officer" means, when used with respect to the
Property Trustee, any officer assigned to the Corporate Trust Office, including
any managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer to the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration for
this Declaration of Trust, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Capital Securities" means all Capital
Securities required pursuant to Section 5.05(c) to bear a Restricted Capital
Securities Legend. Such term includes the Global Capital Securities Certificate.
"Restricted Capital Securities Certificate" means a
certificate substantially in the form set forth in Exhibit D.
"Restricted Capital Securities Legend" means a legend
substantially in the form of the legend required in Section 5.05(c).
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as may be amended from time to time.
"Rule 144A Capital Securities" means the Capital Securities
purchased by the Initial Purchaser from the Trust pursuant to the Purchase
Agreement.
"Securities Act" means the Securities Act of 1933.
"Securities Register" and "Securities Registrar"
have the respective meanings specified in Section 5.05.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Trust Securities is registered in the Securities Register; any
such Person shall
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be deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act; PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite amount of Capital Securities have voted on any matter provided for in
this Declaration of Trust, then for the purpose of any such determination, so
long as Definitive Capital Securities Certificates have not been issued, the
term Securityholders or Holders as used herein shall refer to the Owners.
"Stated Maturity" has the meaning specified in Section 1.01 of
the Indenture.
"Tax Event" has the meaning specified in Section 1.01 of the
Indenture.
"Transfer Agent" means the Bank as set forth in the preamble
to this Declaration of Trust.
"Trust" means National City Capital Trust I.
"Trust Indenture Act" has the meaning specified in Section
1.01 of the Indenture.
"Trust Property" means (a) the Junior Subordinated Debt
Securities, (b) the rights of the Property Trustee under the Guarantee, (c) any
cash or deposit in, or owing to, the Payment Account and (d) all proceeds and
rights in respect of the foregoing.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Capital Securities.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
ARTICLE II
Continuation Of The Trust
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SECTION 2.01. NAME. The Trust continued hereby shall be known
as "National City Capital Trust I", as such name may be modified from time to
time by the Administrative Trustees following written notice to the Holders and
the other Trustees, in which name the Trustees may conduct the
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business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS. The address of the Delaware Trustee in the State of Delaware is The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is in care of National City Corporation, 1900 East Ninth Street, Cleveland, Ohio
441i4; Attention: Corporate Secretary.
SECTION 2.03. ORGANIZATIONAL EXPENSES. The Property Trustee
acknowledges receipt in trust from the Depositor in connection with this
Declaration the sum of $10, which constituted the initial trust property of the
Trust under the Original Declaration of Trust. The Depositor, as borrower on the
Junior Subordinated Debt Securities, shall pay all expenses of the Trust as they
arise or shall, upon request of any Trustee, promptly reimburse such Trustee for
any such expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such expenses.
SECTION 2.04. ISSUANCE OF THE CAPITAL SECURITIES. The Capital
Securities to be issued will be limited to $500 million aggregate Liquidation
Amount outstanding at any one time.
On May 29, 1997, the Depositor and the then sale
Administrative Trustee, on behalf of the Trust, and pursuant to the Original
Declaration of Trust, and the Initial Purchaser executed and delivered the
Purchase Agreement. Contemporaneously with the execution and delivery of this
Declaration of Trust, an Administrative Trustee, on behalf of the Trust, shall
execute or cause to be executed in accordance with Section 5.02 and delivered to
the Initial Purchaser, a Global Capital Securities Certificate in book-entry
form, registered in the name of the nominee of the initial Clearing Agency, in
an aggregate amount of Capital Securities having an aggregate Liquidation Amount
of $500 million against receipt of the aggregate purchase price of such Capital
Securities equal to 99.978% of the Liquidation Amount multiplied by the number
of Capital Securities being purchased which amount the Administrative Trustee
shall promptly deliver to the Property Trustee.
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SECTION 2.05. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF JUNIOR SUBORDINATED DEBT SECURITIES. Contemporaneously with the
execution and delivery of this Declaration of Trust, an Administrative Trustee,
on behalf of the Trust, shall execute or cause to be executed in accordance with
Section 5.02(a) and delivered to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 15,464 Common
Securities having an aggregate Liquidation Amount of $15,464,000 against payment
by the Depositor of $15,464,000 to the Trust. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Junior Subordinated Debt Securities, registered in the name
of the Property Trustee and held for the benefit of the holders of the Capital
Securities having an aggregate principal amount equal to $515,464,000, and, in
satisfaction of the purchase price for such Junior Subordinated Debt Securities,
the Trust shall deliver to the Depositor the sum of $515,354,000.
SECTION 2.06. DECLARATION OF TRUST. The exclusive purposes and
functions of the Trust are to (a) issue and sell Trust Securities, (b) use the
proceeds from the sale of Trust Securities to acquire the Junior Subordinated
Debt Securities, (c) receive payments to be made with respect to the Junior
Subordinated Debt Securities, and (d) engage in only those other activities
necessary or incidental thereto such as registering the transfer of the Capital
Securities and complying with the terms of the Registration Agreement. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Trustees
hereby accept such appointment. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS. (a) The Trustees shall conduct the affairs
<PAGE> 17
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of the Trust in accordance with the terms of this Declaration of Trust. Subject
to the limitations set forth in paragraph (b) of this Section and in accordance
with the following provisions (i) and (ii), the Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Declaration of Trust, and to
perform all acts in furtherance thereof, including without limitation, the
following:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust
Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Purchase
Agreement, the Registration Agreement, the Letter of
Representations and such other agreements as may be necessary
or desirable in connection with the purposes and function of
the Trust;
(C) assisting in the registration of the Capital
Securities under the Securities Act, and under state
securities or blue sky laws, and the qualification of this
Declaration of Trust as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing, if any, of the Capital
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Capital Securities under the Securities Exchange Act of 1934
(the "Exchange Act"), and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Junior Subordinated Debt Securities to the
Securityholders in accordance with this Declaration of Trust;
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(F) the appointment of a Paying Agent, Transfer Agent
and Securities Registrar in accordance with this Declaration
of Trust;
(G) registering transfer of the Trust Securities in
accordance with this Declaration of Trust;
(H) to the extent provided in this Declaration of
Trust, the winding up of the affairs and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Declaration of Trust;
and
(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration of Trust for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholders).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated
Debt Securities;
(C) the collection of interest, principal and any
other payments made in respect of the Junior Subordinated Debt
Securities in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
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(E) the exercise of all of the rights, powers and
privileges of a holder of the Junior Subordinated Debt
Securities;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Debt Securities to the Securityholders in
accordance with this Declaration of Trust;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of
Trust, the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default (other than an Event of
Default pursuant to paragraph (b), (c), (d) or (e) of the
definition of such term if such Event of Default is by or with
respect to the Property Trustee) the taking of any action
incidental to the foregoing as the Property Trustee may from
time to time determine is necessary or advisable to give
effect to the terms of this Declaration of Trust and protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder); and
(J) except as otherwise provided in this Section
2.07(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Declaration of Trust remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transactions except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Declaration of
Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided
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herein, (iii) intentionally take any action that would cause the Trust to fail
or cease to qualify as a "grantor trust" or as other than an association taxable
as a corporation for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) invest any proceeds received by the Trust from holding the Junior
Subordinated Debt Securities, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration of Trust and of the Trust Securities,
(vii) acquire any assets other than the Trust Property, (viii) possess any power
or otherwise act in such a way as to vary the Trust Property, (ix) possess any
power or otherwise act in such a way as to vary the terms of the Trust
Securities in any way whatsoever (except to the extent expressly authorized in
this Declaration of Trust or by the terms of the Trust Securities), (x) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities, or (xi) other than as
provided in this Declaration of Trust or by the terms of the Trust Securities,
so long as any Junior Subordinated Debt Securities are held by the Property
Trustee, (A) direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Junior Subordinated
Debt Securities, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration that the
principal of all Junior Subordinated Debt Securities shall be due and payable,
or (D) consent to any amendment, modification, or termination of the Indenture
or the Junior Subordinated Debt Securities where such consent shall be required
unless the Trust shall have received an Opinion of Counsel of a nationally
recognized independent law firm to the effect that such amendment, modification
or termination will not cause more than an insubstantial risk that the Trust
will be deemed an Investment Company required to be registered under the
Investment Company Act, the Trust will not be classified as a grantor trust or
will be classified as an association taxable as a corporation for United States
federal income tax purposes or the Junior Subordinated Debt Securities will not
be classified as indebtedness for such purposes. The Administrative Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or
<PAGE> 21
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effect on behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of this Declaration
of Trust are hereby ratified and confirmed in all respects):
(i) the preparation by the Trust of an offering memorandum
relating to the Trust Securities and the preparation and filing by the
Trust with the Commission and the execution on behalf of the Trust of a
registration statement on the appropriate form in relation to the Trust
Securities, including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the
Trust Securities and the determination of any and all such acts, other
than actions which must be taken by or on behalf of the Trust, and the
advice to the Trustees of actions they must take on behalf of the
Trust, and the preparation for execution and filing of any documents to
be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such states;
(iii) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Trust
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(iv) the negotiation of the terms of, and the execution and
delivery of, the Registration Agreement, the Purchase Agreement
providing for the sale of the Trust Securities and such other
agreements as may be necessary or desirable in connection with the
consummation of the transactions contemplated thereby, all in its
capacity as Depositor and on behalf of the Trust; and
(v) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, each
Administrative Trustee is authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that the Trust will not (i) be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, or (ii) fail to be
<PAGE> 22
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classified as a grantor trust or as other than an association taxable as a
corporation for United States federal income tax purposes and so that the Junior
Subordinated Debt Securities will be treated as indebtedness of the Depositor
for United States federal income tax purposes. In this connection, the Depositor
and each of the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Declaration
of Trust, that each of the Depositor and each Administrative Trustee determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Trust Securities.
SECTION 2.08. ASSETS OF TRUST. The assets of the
Trust shall consist solely of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to all
Trust Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property Trustee for
the benefit of the Trust and the Securityholders in accordance with this
Declaration of Trust.
ARTICLE III
Payment Account
---------------
SECTION 3.01. PAYMENT ACCOUNT. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and any agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Declaration of Trust. All moneys and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein or by applicable law.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated Debt
Securities. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
<PAGE> 23
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ARTICLE IV
Distributions; Redemption
-------------------------
SECTION 4.01. DISTRIBUTIONS. (a) Distributions on the Trust
Securities shall be cumulative and will accumulate whether or not there are
funds of the Trust available for the payment of Distributions. Distributions at
the rates set forth herein and in Section 4.01(b) shall accrue from June 6,
1997, and, except in the event (and to the extent) that the Depositor exercises
its right to defer the payment of interest on the Junior Subordinated Debt
Securities pursuant to the Indenture, shall be payable semi-annually in arrears
on the 1st day of June and December of each year, commencing on December 1,
1997. If any date on which a Distribution is otherwise payable is not a Business
Day, then the payment of such Distribution shall (subject to Section 4.03(a)) be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if such Business
Day is in the next calendar year, then such Distribution shall be on the
immediately preceding Business Day in each case with the same force and effect
as if made on such date (each date on which distributions are payable in
accordance with this Section 4.01(a), a "Distribution Date"). Accrued
Distributions that are not paid on the applicable Distribution Date will bear
interest on the amount thereof (to the extent permitted by law) at an annual
rate equal to the Applicable Rate, compounded semi-annually from the relevant
Distribution Date in accordance with Section 2.02 of the Indenture. Prior to the
Rate Reset Date the Applicable Rate will be equal to 6.75% per annum. The
Applicable Rate on and after the Rate Reset Date shall be equal to the rate per
annum that results on the Rate Reset Pricing Date from the implementation of the
Rate Reset Auction Procedures set forth in the Indenture.
(b) The Trust Securities represent undivided beneficial
ownership interests in the Trust Property, and, assuming payments of interest on
the Junior Subordinated Debt Securities are made when due (and before giving
effect to Additional Distributions, defined below, if applicable), Distributions
on the Trust Securities shall be payable at the Applicable Rate applied to the
Liquidation Amount of the Trust Securities in accordance with Section 2.02 of
the Indenture. The amount of Distributions payable for any period shall be
computed on the basis of the actual number of days
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elapsed in a year of twelve 30-day months; except that the amount of interest
payable for any partial period shall be computed on the basis of the actual
number of days elapsed in a 360-day year. The amount of Distributions payable
for any period shall include the Additional Distributions, if any.
(c) On and after the Rate Reset Date, and so long as no
Debenture Event of Default has occurred and is continuing, the Depositor has the
right under the Indenture to defer the payment of interest on the Junior
Subordinated Debt Securities at any time and from time to time for a period not
exceeding 10 consecutive semi-annual periods (an "Extension Period"), provided
that no Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. As a consequence of any such deferral, semi-annual
Distributions on the Trust Securities by the Trust will also be deferred during
any Extension Period and the amount of Distributions to which Holders are
entitled will accumulate additional Distributions thereon at a annual rate equal
to the Applicable Rate, compounded semi-annually from the relevant payment date
for such Distributions during any such Extension Period, to the extent permitted
by applicable law, but not exceeding the interest rate then accruing on the
Junior Subordinated Debt Securities. No interest or other amounts shall be due
and payable during an Extension Period except at the end thereof. In addition,
in the event that a Registration Default (as defined in the Registration
Agreement) occurs, an additional amount will be payable, as special interest and
additional interest, on the Junior Subordinated Debt Securities and the Trust
Securities, respectively, at a rate of 0.25% per annum of the principal amount
or the Liquidation Amount, as applicable, from and including the next day
following each such Registration Default to but excluding the date on which such
Registration Default shall have been cured. The aggregate amount of such
additional amounts payable with respect to the preceding sentence shall not
exceed 0.50% per annum (each type of increase in Distribution, described in this
Section 4.01(c), an "Additional Distribution").
(d) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on-hand and
available in the Payment Account for the payment of such Distributions.
(e) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders of record as they appear on
the Securities Register for the Trust Securities at the close of the Business
Day next preceding each 1st day of June and December.
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SECTION 4.02. REDEMPTION. (a) On each Junior Subordinated Debt
Securities Redemption Date and on the Stated Maturity of the Junior Subordinated
Debt Securities, the Trust will be required to redeem a Like Amount of Trust
Securities at the applicable Redemption Price.
(b) Other than at Stated Maturity or in the event of an Early
Mandatory Redemption, notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the Security
Register (i) not less than 45 nor more than 60 days prior to the Redemption Date
in the case of an Early Optional Redemption (except in the limited circumstances
set forth in (ii)), an Optional Redemption or a Tax Event, '40 Act or Capital
Treatment Event Redemption (each a "Special Event Redemption")or (ii) not less
than five Business Days prior to a Special Event Redemption that shall have
occured not more than 30 days prior to the Submission Deadline. Notices of
redemption shall identify the Trust Securities to be redeemed (including CUSIP
numbers) and shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after said date.
The Trust in issuing the Trust Securities may use "CUSIP",
and/or "private placement" numbers (if then generally in use), and, if so, the
Property Trustee shall indicate the "CUSIP" or "private placement" numbers of
the Trust Securities in notices or redemption and related materials as a
convenience to Securityholders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Trust Securities or as contained in any notice of redemption and related
material. The Depositor shall promptly notify the Property Trustee of any change
in such numbers.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous
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redemption of Junior Subordinated Debt Securities. Redemptions of the Trust
Securities shall be made and the applicable Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will, so long
as the Capital Securities are in book-entry-only form, irrevocably deposit with
the Clearing Agency for the Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
With respect to Capital Securities held in certificated form, the Property
Trustee, subject to Section 4.02(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the applicable Redemption Price and any Distribution
payable on or prior to the Redemption Date, but without interest, and such Trust
Securities will cease to be outstanding. In the event that any date on which any
applicable Redemption Price is payable is not a Business Day, then payment of
the applicable Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the applicable Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accrue, at the then
applicable rate, from the Redemption Date originally
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established by the Trust for such Trust Securities to the date such applicable
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the applicable
Redemption Price.
(e) Payment of the applicable Redemption Price on, and any
distributions of Junior Subordinated Debt Securities to Holders of, the Trust
Securities shall be made to the Holders thereof as they appear on the Securities
Register on the relevant record date, and, with respect to Trust Securities held
in certificated form, upon surrender of such certificated Trust Securities to
the Paying Agent.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities. The particular Trust Securities to be redeemed shall be selected on
a pro rata basis (based upon Liquidation Amounts) not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding Trust
Securities not previously called for redemption, by such method as the Property
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $1,000 or an integral multiple of $1,000 in
excess thereof, PROVIDED that the unredeemed portion of any Trust Security shall
not be less than $100,000) of the Liquidation Amount of Trust Securities of a
denomination larger than $1,000. The Property Trustee shall promptly notify the
Security Registrar in writing of the Trust Securities selected for redemption
and, in the case of any Trust Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration
of Trust, unless the context otherwise requires, all provisions relating to the
redemption of Trust Securities shall relate in the case of any Trust Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Trust Securities that has been or is to be redeemed.
SECTION 4.03. SUBORDINATION OF COMMON SECURITIES. (a) Payment
of Distributions (including Additional Distributions, if applicable) on, and the
Redemption Price of the Trust Securities, as applicable, shall be made subject
to Section 4.02(f), pro rata to the holders of the Trust Securities based on the
Liquidation Amount of the Trust Securities; PROVIDED, HOWEVER, that if on any
Distribution Date or Redemption Date any Debenture Event of Default (or other
event that, with notice or the passage
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of time or both, would become such an Event of Default) or an Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Distributions, if applicable) on, or Redemption Price of, any of the
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including
Additional Distributions, if applicable) on all outstanding Capital Securities
for all Distribution Dates occurring on or prior thereto, or, in the case of
payment of the applicable Redemption Price the full amount of such Redemption
Price on all outstanding Capital Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Distributions, if applicable) on, or the Redemption Price of, Capital
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of Common Securities
will be deemed to have waived any right to act with respect to any such Event of
Default under this Declaration of Trust until the effect of all such Events of
Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Declaration of
Trust with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital Securities will have the right
to direct the Property Trustee to act on their behalf.
SECTION 4.04. PAYMENT PROCEDURES. In the event Definitive
Capital Securities Certificates are issued, payments of Distributions (including
Additional Distributions, if applicable) in respect of the Capital Securities
shall be made by check mailed to the address of the Person entitled thereto at
such address as shall appear on the Securities Register. If the Capital
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which shall credit the
relevant Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
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SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense,
and file all United States federal, state and local tax and information returns
and reports required to be filed by or in respect of the Trust. In this regard,
the Administrative Trustees shall (a) prepare and file (or cause to be prepared
and filed) the appropriate Internal Revenue Service forms required to be filed
in respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder all
Internal Revenue Service forms required to be provided by the Trust. The
Administrative Trustees shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Administrative Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders.
SECTION 4.06. PAYMENT OF TAXES; DUTIES, ETC. OF THE TRUST.
Pursuant to Section 10.06 of the Indenture, the Depositor, as borrower on the
Junior Subordinated Debt Securities, has agreed to, and it shall, promptly pay
any taxes, duties or governmental charges of whatever nature (other than United
States withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 4.07. PAYMENTS UNDER INDENTURE. Any amount payable
hereunder to any Holder (and any Owner with respect thereto) shall be reduced by
the amount of any corresponding payment such Holder (and Owner) has directly
received pursuant to Section 5.08 of the Indenture or Section 5.13 of this
Declaration of Trust.
ARTICLE V
Trust Securities Certificates
-----------------------------
SECTION 5.01. INITIAL OWNERSHIP. Upon the formation of the
Trust and until the issuance of the Trust Securities, and at any time during
which no Trust Securities are outstanding, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 5.02. TRUST SECURITIES CERTIFICATES. (a) The Capital
Securities Certificates shall be issued only in minimum denominations of
$100,000 Liquidation Amount (100 Capital Securities)or an integral multiple of
$100,000 in excess thereof, and the Common Securities Certificates shall
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be issued in denominations of $1,000 Liquidation Amount or integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf of the
Trust by the manual or facsimile signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Declaration of Trust, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior to
the delivery of such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Sections 5.04, 5.05 and 5.06.
(b) Upon their original issuance, Capital Securities
Certificates representing Rule 144A Capital Securities shall be issued in the
form of a Global Capital Securities Certificate registered in the name of Cede &
Co. ("Cede") as DTC's nominee and deposited with or on behalf of DTC for credit
by DTC to the respective accounts of the Owners thereof (or such other accounts
as they may direct). Except as set forth herein, record ownership of the Global
Capital Security may be transferred, in whole or in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
(c) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.03. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES. At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to
the Property Trustee and upon such delivery the Property Trustee shall
countersign such Trust Securities Certificates and make available for delivery
such Trust Securities Certificates upon the written order of the Depositor,
signed by its chairman of the board, president, any executive vice president or
any vice president, treasurer or assistant treasurer or controller without
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further corporate action by the Depositor, in authorized denominations.
SECTION 5.04. GLOBAL CAPITAL SECURITY. (a) The Global Capital
Security issued under this Declaration of Trust shall be registered in the name
of Cede as nominee of the Clearing Agency and delivered to its custodian
therefor, and such Global Capital Security shall constitute a single Capital
Security for all purposes of this Declaration of Trust.
(b) Notwithstanding any other provision in this Declaration of
Trust, the Global Capital Security may not be exchanged in whole or in part for
Capital Securities registered, and no transfer of the Global Capital Security in
whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Global Capital Security, Cede, or other nominee thereof
unless (i) such Clearing Agency advises the Property Trustee in writing that
such Clearing Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global Capital
Security, and the Depositor is unable to locate a qualified successor, (ii) the
Trust at its sole option advises DTC in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) there shall have
occurred and be continuing a Debenture Event of Default. In addition, beneficial
interests in a Global Capital Security may be exchanged by or on behalf of DTC
for certificated Capital Securities upon request by DTC, but only upon at least
20 days prior written notice given to the Property Trustee in accordance with
the Applicable Procedures.
(c) If the Global Capital Security is to be exchanged for
Other Capital Securities or canceled in whole, it shall be surrendered by or on
behalf of the Clearing Agency or its nominee to the Securities Registrar for
exchange or cancellation as provided in this Article V. If the Global Capital
Security is to be exchanged for Other Capital Securities or canceled in part, or
if an Other Capital Security is to be exchanged in whole or in part for a
beneficial interest in the Global Capital Security, then either (i) such Global
Capital Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the aggregate Liquidation Amount thereof
shall be reduced, subject to Section 5.02, or increased by an amount equal to
the portion thereof to be so exchanged or canceled, or equal to the aggregate
Liquidation Amount of such Other Capital Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the
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Security Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of the Global Capital Security by the Clearing Agency
and Clearing Agency Participants, accompanied by registration instructions
executed by an Administrative Trustee on behalf of the Trust and, to the extent
required in Section 5.05(c), a Restricted Capital Securities Certificate in a
form substantially similar to that attached hereto as Exhibit D, the Property
Trustee shall, subject to this Article V, countersign and make available for
delivery any executed Capital Securities delivered to it issuable in exchange
for such Global Capital Security (or any portion thereof) in accordance with the
instructions of the Clearing Agency. The Property Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(d) The Clearing Agency or its nominee, as the registered
owner of the Global Capital Security, shall be considered the Holder of the
Capital Securities represented by the Global Capital Security for all purposes
under this Declaration of Trust and the Capital Securities, and owners of
beneficial interests in the Global Capital Security shall hold such interests
pursuant to the Applicable Procedures and, except as otherwise provided herein,
shall not be entitled to have any of the individual Capital Securities
represented by the Global Capital Security registered in their names, shall not
receive nor be entitled to receive physical delivery of any such Capital
Securities in definitive form and shall not be considered the Holders thereof
under this Declaration of Trust. Accordingly, any such owner's beneficial
interest in the Global Capital Security shall be shown only on, and the transfer
of such interest shall be effected only through, records maintained by the
Clearing Agency or its nominee. The Securities Registrar and the Trustees shall
be entitled to deal with the Clearing Agency for all purposes of this
Declaration of Trust relating to the Global Capital Securities (including the
payment of the Liquidation Amount of and Distributions on the Global Capital
Securities and the giving of instructions or directions to Owners of Global
Capital Securities) as the sole Holder of Global Capital Securities and shall
have no obligations to the Owners thereof. Neither the Property Trustee nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
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(e) The rights of Owners of beneficial interests in the Global
Capital Security shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such owners and
the Clearing Agency. Neither the Clearing Agency nor its nominee will consent or
vote with respect to the Capital Securities. Under its usual procedures, the
Clearing Agency or its nominee would mail an Omnibus Proxy to the Trust as soon
as possible after the relevant record date. The Omnibus Proxy assigns the
consenting or voting rights of the Clearing Agency or its nominee to those
Clearing Agency Participants, identified in a listing attached to such Omnibus
Proxy, to whose accounts the Capital Securities are credited on such record
date.
SECTION 5.05. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; CAPITAL SECURITIES CERTIFICATES; SECURITIES ACT
LEGENDS. (a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Capital Securities Certificates and Common Securities Certificates and transfers
and exchanges of Capital Securities Certificates and Common Securities
Certificates in which the registrar and transfer agent with respect to the
Capital Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Capital Securities Certificates and Common Securities
Certificates as herein provided. Such register is herein sometimes referred to
as the "Securities Register." The Property Trustee is hereby appointed
"Securities Registrar" for the purpose of registering Capital Securities and
transfers of Capital Securities as herein provided. The provisions of Sections
8.01, 8.03 and 8.06 hereunder shall apply to the Property Trustee also in its
role as Securities Registrar.
Upon surrender for registration of transfer of any Capital
Security at the offices or agencies of the Property Trustee designated for that
purpose, the Administrative Trustees shall execute, and the Property Trustee
shall countersign and make available for delivery, in the name of the designated
transferee or transferees, one or more new Capital Securities of any authorized
denominations of like tenor and aggregate liquidation amount and bearing such
restrictive legends as may be required by this Declaration of Trust.
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At the option of the Holder, Capital Securities may be
exchanged for other Capital Securities of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such restrictive legends as
may be required by this Declaration of Trust, upon surrender of the Capital
Securities to be exchanged at such office or agency. Whenever any securities are
so surrendered for exchange, an Administrative Trustee shall execute and the
Property Trustee shall countersign and make available for delivery the Capital
Securities that the Holder making the exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange of
Capital Securities shall be the valid obligations of the Trust, entitled to the
same benefits under this Declaration of Trust as the Capital Securities
surrendered upon such transfer or exchange.
Every Capital Security presented or surrendered for transfer
or exchange shall (if so required by the Property Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer
or exchange of Capital Securities, but the Property Trustee or the Securities
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities.
Neither the Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the transfer
of or exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of such mailing of the notice of redemption, or (ii) to register the transfer of
or exchange any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in part, any
portion thereof not to be redeemed.
The Capital Securities will be issued, and may be transferred,
only in blocks having a Liquidation Amount of not less than $100,000 or an
integral multiple of $100,000 in excess thereof. Any transfer, sale or other
disposition of Capital Securities in a block having a Liquidation Amount
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of other than $100,000 or an integral multiple of $100,000 in excess thereof
shall be deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the Holder of such Capital Securities for
any purpose, including but not limited to the receipt of Distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
(b) CERTAIN TRANSFERS AND EXCHANGES. Subject to Section
5.04(c), but notwithstanding any other provision of this Declaration of Trust,
transfers and exchanges of Capital Securities and beneficial interests in a
Global Capital Security shall be made only in accordance with this Section
5.05(b) and Section 5.04(c).
(i) NON-GLOBAL CAPITAL SECURITY TO NON-GLOBAL CAPITAL
SECURITY. A Capital Security that is not a Global Capital Security may
be transferred, in whole or in part, to a Person who takes delivery in
the form of another Capital Security that is not a Global Capital
Security as provided in Section 5.05(a) PROVIDED that if the Capital
Security to be transferred in whole or in part is a Restricted Capital
Security, the Securities Registrar shall have received a Restricted
Capital Securities Certificate duly executed by the transferor Holder
or such Holder's attorney duly authorized in writing.
(ii) EXCHANGES BETWEEN GLOBAL CAPITAL SECURITY AND NON-GLOBAL
CAPITAL SECURITY. A beneficial interest in the Global Capital Security
may be exchanged for a Capital Security that is not a Global Capital
Security as provided in Section 5.04.
(iii) LIMITATIONS RELATING TO LIQUIDATION AMOUNT.
Notwithstanding any other provision of this Declaration of Trust and
unless otherwise specified as permitted by this Declaration of Trust,
Capital Securities or portions thereof may be transferred or exchanged
only in Liquidation Amounts of not other than $100,000 or an integral
multiple of $100,000 in excess thereof. Any transfer, exchange or other
disposition of Capital Securities in contravention of this Section
5.05(b)(iii) shall be deemed to be void and of no legal effect
whatsoever, any such transferee shall be deemed not to be the Holder or
owner of any beneficial interest in such Capital Securities for any
purpose, including but not limited to the receipt of interest payable
on such Capital Securities, and such transferee shall be deemed to have
no interest whatsoever in such Capital Securities.
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(c) RESTRICTED SECURITIES LEGEND. (i) Except as
set forth in this Section 5.05(c), all Capital Securities
(excluding the Exchange Capital Securities) shall bear a
restricted capital securities legend substantially in the
following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH NATIONAL CITY CORPORATION (THE
"COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE
RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE PROPERTY TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY
OR THE PROPERTY TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE."
(ii) Subject to Section 5.05(d) and the following paragraphs
of this Section 5.05(c), a new Capital Security (other than a Global
Capital Security) that does not bear a Restricted Capital Securities
Legend may be issued in exchange for or in lieu of a Restricted Capital
Security or any portion thereof that
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bears such a legend if, in the Depositor's judgment, placing such a
legend upon such new Capital Security is not necessary to ensure
compliance with the registration requirements of the Securities Act,
and the Property Trustee, at the written direction of the Trust in the
form of an Officers' Certificate, shall countersign and deliver such a
new Capital Security as provided in this Article V.
(iii) Notwithstanding the foregoing provisions of this Section
5.05(c), a successor Capital Security of a Capital Security that does
not bear a Restricted Capital Securities Legend shall not bear such
form of legend unless the Depositor has reasonable cause to believe
that such successor Capital Security is a "restricted security" within
the meaning of Rule 144 under the Securities Act, in which case the
Property Trustee, at the written direction of the Trust in the form of
an Officers' Certificate, shall countersign and deliver a new Capital
Security bearing a Restricted Capital Securities Legend in exchange for
such successor Capital Security as provided in this Article V.
(iv) Upon any sale or transfer of a Restricted Capital
Security (including any Restricted Capital Security represented by a
Global Capital Security) pursuant to an effective registration
statement under the Securities Act or pursuant to Rule 144 under the
Securities Act after such registration ceases to be effective: (A) in
the case of any Restricted Capital Security that is a definitive
Capital Security, the Securities Registrar shall permit the Holder
thereof to exchange such Restricted Capital Security for a definitive
Capital Security that does not bear the Restricted Securities Legend
and rescind any restriction on the transfer of such Restricted Capital
Security; and (B) in the case of any Restricted Capital Security that
is represented by a Global Capital Security, the Securities Registrar
shall permit the Holder of such Global Capital Security to exchange
such Global Capital Security for another Global Capital Security that
does not bear the Restricted Securities Legend.
(v) If Restricted Capital Securities are being presented or
surrendered for transfer or exchange then there shall be (if so
required by the Property Trustee), (A) if such Restricted Capital
Securities are being delivered to the Securities Registrar by a Holder
for registration in the name of such Holder, without
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transfer, a certification from such Holder to that effect; or (B) if
such Restricted Capital Securities are being transferred, (i) a
certification from the transferor in a form substantially similar to
that attached hereto as Exhibit D, and (ii) if the Trust or Securities
Registrar so requests, evidence reasonably satisfactory to them as to
the compliance with the restrictions set forth in the Restricted
Capital Securities Legend.
(d) EXCHANGE OFFER. The Capital Securities may be exchanged
for Exchange Capital Securities (as defined in the Indenture) pursuant to the
terms set forth in the Registration Agreement and Article XII of the Indenture
(the "Exchange Offer"). The Property Trustee shall make the exchange as follows:
The Depositor shall present the Property Trustee with an
Officers' Certificate certifying the following:
(i) upon issuance of the Exchange Capital
Securities, the transactions contemplated by the
Exchange Offer have been consummated; and
(ii) the number of Capital Securities properly tendered in the
Exchange Offer that are represented by a Global Capital Security and
the liquidation amount of Capital Securities properly tendered in the
Exchange Offer that are represented by Other Capital Securities, the
name of such Holder of such Other Capital Securities, the liquidation
amount of Capital Securities properly tendered in the Exchange Offer by
each such Holder.
The Property Trustee, upon receipt of (i) such Officers'
Certificate, (ii) an Opinion of Counsel with respect to the matters set forth in
Section 4(s) of the Registration Agreement (including that the Exchange Capital
Securities have been registered under Section 5 of the Securities Act and the
Indenture, Declaration of Trust and Guarantee have been qualified under the
Trust Indenture Act) and (iii) a Company Order (as defined in the Indenture),
shall authenticate (A) a Global Capital Security representing Exchange Capital
Securities in aggregate liquidation amount equal to the aggregate liquidation
amount of Capital Securities represented by a Global Capital Security indicated
in such Officers' Certificate as having been properly tendered and (B) Capital
Securities Certificates representing Exchange Capital Securities registered in
the names of, and in the liquidation amounts indicated in such Officers'
Certificate.
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If, upon consummation of the Exchange Offer, less than all the
outstanding Capital Securities shall have been properly tendered and not
withdrawn, the Property Trustee shall make an endorsement on the Global Capital
Security for Capital Securities indicating that reduction in the number and
aggregate liquidation amount represented thereby as a result of the Exchange
Offer.
The Trust shall deliver such Capital Securities Certificates
for Exchange Capital Securities to the Holders thereof as indicated in such
Officers' Certificate.
SECTION 5.06. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES. Provided Definitive Capital Securities Certificates are
issued, if (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.07. PERSONS DEEMED SECURITYHOLDERS. The Trustees or
the Securities Registrar shall treat the Person in whose name any Trust
Securities are issued as the owner of such Trust Securities for the purpose of
receiving Distributions and for all other purposes whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.08. ACCESS TO LIST OF SECURITYHOLDERS'
NAMES AND ADDRESSES. Each Owner of Trust Securities
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acknowledges that the Depositor, the Property Trustee, the Delaware Trustee or
the Administrative Trustees may from time to time make reasonable use of
information consisting of such Owner's name and address, including the
furnishing of a list of such names and addresses as contemplated hereunder, and
each Owner shall be deemed to have agreed not to hold the Depositor, the
Property Trustee or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 5.09. MAINTENANCE OF OFFICE OR AGENCY; TRANSFER AGENT.
The Administrative Trustees shall maintain an office or offices or agency or
agencies where Definitive Capital Securities Certificates, if issued, may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities may be
served. The Administrative Trustees initially designate The Bank of New York,
101 Barclay Street, Floor 21 West, New York, New York 10286, as its corporate
trust office for such purposes. The Administrative Trustees shall give prompt
written notice to the Depositor and to the Securityholders of any change in the
location of the Securities Register or any such office or agency. The Bank shall
act as initial transfer agent for the Trust Securities.
SECTION 5.10. APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make Distributions to Securityholders from the Payment Account and shall
report the amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions referred to above. The Administrative Trustees may revoke such
power and remove any Paying Agent if such Administrative Trustees determine in
their sole discretion that such Paying Agent shall have failed to perform its
obligations under this Declaration of Trust in any material respect. The Paying
Agent shall initially be the Bank, and any co-paying agent chosen by the Bank,
and acceptable to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees, the Property Trustee and
the Depositor. In the event that the Bank shall no longer be the Paying Agent or
a successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause
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such successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 herein
shall apply to the Bank also in its role as Paying Agent, for so long as the
Bank shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Declaration of Trust to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. The
Depositor shall acquire and retain beneficial and record ownership of the Common
Securities. To the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another
corporation, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.01 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.12. NOTICES TO CLEARING AGENCY. To the extent
that a notice or other communication to the Owners is required under this
Declaration of Trust, for so long as Capital Securities are represented by a
Global Securities Certificate, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to give duplicates thereof to the Owners.
SECTION 5.13. RIGHTS OF SECURITYHOLDERS. (a) The legal title
to the Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders shall
not have any right or title therein other than the undivided beneficial
ownership interest in
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the assets of the Trust conferred by their Trust Securities and they shall have
no right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Declaration of Trust. The Trust Securities shall have no preemptive or singular
rights and when issued and delivered to Securityholders against payment of the
purchase price therefor will be fully paid and nonassessable. The Holders, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding,
if, upon a Debenture Event of Default, the Debenture Trustee fails or the
holders of not less than 25% in principal amount of the outstanding Junior
Subordinated Debt Securities fail to declare the principal amount of all of the
Junior Subordinated Debt Securities to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee with a copy to the Property Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Junior Subordinated Debt Securities shall become immediately due and payable;
PROVIDED that the payment of principal and interest on such Junior Subordinated
Debt Securities shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with
respect to the Junior Subordinated Debt Securities has been made and before a
judgment or decree for payment of the money due has been obtained by the
Debenture Trustee as provided in the Indenture, the holders of a majority in
principal amount of the outstanding Junior Subordinated Debt Securities, by
written notice to the Property Trustee, the Depositor and the Debenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest (including
any Additional Interest (as defined in the Indenture)) on all
of the Junior Subordinated Debt Securities,
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(B) the principal of any Junior Subordinated Debt
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Junior Subordinated Debt Securities, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee,
its agents and counsel; and
(ii) all Events of Default with respect to the Junior
Subordinated Debt Securities, other than the non-payment of the
principal of the Junior Subordinated Debt Securities which has become
due solely by such acceleration, have been cured or waived as provided
in Section 5.13 of the Indenture.
If such holders of the Junior Subordinated Debt Securities
fail to annul any such declaration and waive such default, the Holders of
Capital Securities representing a majority in aggregate Liquidation Amount of
all the Outstanding Capital Securities shall also have the right to rescind and
annul such declaration and its consequences by written notice to the Depositor,
the Property Trustee and the Debenture Trustee, subject to the satisfaction of
the conditions set forth in Clause (i) and (ii) of this Section 5.13(b).
Should the holders of a majority in aggregate principal amount
of the outstanding Junior Subordinated Debt Securities fail to take such
actions, the Holders of a majority in aggregate Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Junior
Subordinated Debt Security. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of the Capital Securities all or part of which is represented by Global Capital
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Securities, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; PROVIDED that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90 day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding,
to the fullest extent permitted by law and subject to the terms of this
Declaration of Trust and the Indenture, upon a Debenture Event of Default
specified in Section 5.01(1) or 5.01(2) of the Indenture, any Holder of Capital
Securities shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.08 of the Indenture, for enforcement of payment
to such Holder of the principal amount of or interest (including any Additional
Interest) on Junior Subordinated Debt Securities having a principal amount equal
to the aggregate Liquidation Amount of the Capital Securities held by such
Holder (a "Direct Action"). Except as set forth in Sections 5.13(b) and 5.13(c)
hereof, the Holders of Capital Securities shall have no right to exercise
directly any right or remedy available to the holders or, or in respect of, the
Junior Subordinated Debt Securities.
(d) A Securityholder may institute a legal proceeding directly
against the Guarantor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust or any
person or entity.
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ARTICLE VI
Acts Of Securityholders; Meetings; Voting
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SECTION 6.01. LIMITATIONS ON CAPITAL SECURITYHOLDER'S VOTING
RIGHTS. (a) Except as provided in this Declaration of Trust and in the Indenture
and as otherwise required by law, no Holder of Capital Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Capital Securityholders from
time to time as partners or members of an association. Unless a Debenture Event
of Default shall have occurred and be continuing, any Trustee may be removed at
any time by the vote of the Common Securityholder. The right to vote to appoint,
remove or replace the Administrative Trustees is vested exclusively in the
Depositor as the Holder of the Common Securities.
(b) So long as any Junior Subordinated Debt Securities are
held by the Property Trustee, the Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Property Trustee with
respect to such Junior Subordinated Debt Securities, (ii) waive any past default
which is waivable under Section 5.13 of the Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Junior
Subordinated Debt Securities shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Junior
Subordinated Debt Securities, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a majority in
aggregate Liquidation Amount of all Outstanding Capital Securities; PROVIDED,
HOWEVER, that where a consent under the Indenture would require the consent of
each holder of Junior Subordinated Debt Securities affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each Holder of Capital Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Capital
Securities, except by a subsequent vote of the Holders of Capital Securities.
The Property Trustee shall notify all Holders of the Capital Securities of any
notice of default received from the Debenture Trustee with respect to the Junior
Subordinated Debt Securities. In addition to obtaining the foregoing approvals
of the Holders of the
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Capital Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that the Trust will not be classified as an
association taxable as a corporation for United States federal income tax
purposes as a result of such action and such action would not cause the Trust to
be classified as other than a grantor trust.
(c) If any proposed amendment to the Declaration of Trust
provides for, or the Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the interests, powers,
preferences or special rights of the Trust Securities, whether by way of
amendment to the Declaration of Trust or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of this
Declaration of Trust, then the Holders of Outstanding Trust Securities as a
class will be entitled to vote on such amendment or proposal.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of
the Securityholders, stating the time, place and purpose of the meeting, shall
be given by the Property Trustee pursuant to Section 10.09 to each
Securityholder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
SECTION 6.03. MEETINGS OF SECURITYHOLDERS. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Securityholders of record of 25% of the Securities (based
upon their Liquidation Amount) and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of Securityholders
to vote on any matters as to which Securityholders are entitled to vote.
Securityholders of record of 50% of the Outstanding Securities
(based upon their Liquidation Amount), present in person or represented by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Securityholders of record present, in person or by proxy, holding more than
a majority of the Securities (based upon their Liquidation Amount) held by the
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Securityholders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Declaration of
Trust requires a greater number of affirmative votes.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be entitled
to one vote for each $1,000 of Liquidation Amount represented by their
Outstanding Trust Securities in respect of any matter as to which such
Securityholders are entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy; PROVIDED that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote shall not
be received in respect of such Securities. A proxy purporting to be executed by
or on behalf of a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any
action which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Declaration of Trust) shall consent to the action in
writing.
SECTION 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES. For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
Distribution in respect of which a record date is not otherwise provided for in
this Declaration of Trust, or for the purpose of any other action, the
Administrative Trustees
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may from time to time fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of a distribution or other action, as
the case may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by
Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners 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 Declaration of Trust and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be provided 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 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 any Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the
Securities Registrar.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust 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
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the Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust 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 part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under the
Guarantee Agreement without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee Agreement), the Trust, any
Trustee or any person or entity.
SECTION 6.09. INSPECTION OF RECORDS. Upon reasonable notice to
the Administrative Trustees and the Property Trustee, the records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations And Warranties
------------------------------
SECTION 7.01. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE. The Property Trustee and the Delaware Trustee,
each severally on behalf of and as to itself, hereby represents and warrants for
the benefit of the Depositor and the Securityholders that:
(a) The Property Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the
laws of New York, with trust power and authority to execute and
deliver, and to
<PAGE> 50
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carry out and perform its obligations under the terms of this
Declaration.
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee; and the
Declaration has been duly executed and delivered by the Property
Trustee, and constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration
by the Property Trustee does not conflict with or constitute a breach
of the certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee has not
knowingly created any liens or encumbrances on such Trust Securities.
(e) No consent, approval or authorization of, or registration
with or notice to, any New York State or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee, of the Declaration.
(f) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, the Declaration.
(g) The execution, delivery and performance by the Delaware
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; and the
Declaration has been duly executed and delivered by the Delaware
Trustee, and constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' right generally
and to general principles of equity and the discretion of the court
regardless of whether the enforcement
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of such remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance or the Declaration
by the Delaware Trustee does not conflict with or constitute a breach
of the certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required
for the execution, delivery or performance by the Delaware Trustee, of
this Declaration.
(j) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
SECTION 7.02. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by an Administrative Trustee pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Declaration of Trust, and the Securityholders will be, as of each such date,
entitled to the benefits of this Declaration of Trust.
ARTICLE VIII
The Trustees
------------
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The
duties and responsibilities of the Trustees shall be as provided by this
Declaration of Trust and, in the case of the Property Trustee, by the Trust
Indenture Act; PROVIDED, HOWEVER, that the Property Trustee shall not be subject
to the provisions of the Trust Indenture Act until such time as this Declaration
of Trust becomes qualified under the Trust Indenture Act upon the effectiveness
of a registration statement pursuant to the Registration Agreement.
Notwithstanding the foregoing, no provisions of this Declaration of Trust shall
require the Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to
it against such risk or liability is not reasonably assured to it. Whether or
not herein expressly
<PAGE> 52
52
so provided, every provision of this Declaration of Trust relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Article. Nothing in this Declaration
of Trust shall be construed to release an Administrative Trustee from liability
for his own grossly negligent action, his own grossly negligent failure to act,
or his own wilful misconduct. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Declaration of Trust.
The provisions of this Declaration of Trust, to the extent that they restrict
the duties and liabilities of the Administrative Trustees otherwise existing at
law or in equity, are agreed by the Depositor and the Securityholders to replace
such other duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Declaration of Trust or, in the case of
the Property Trustee, in the Trust Indenture Act, if applicable.
(c) No provision of this Declaration of Trust shall be
construed to relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
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(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debt Securities and the Payment Account shall be to deal
with such Property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the projections
and limitations on liability afforded to the Property Trustee under
this Declaration of Trust and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.01 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Declaration of Trust
nor shall the Property Trustee be liable for the default or misconduct
of the Administrative Trustees or the Depositor.
SECTION 8.02. EVENTS OF DEFAULT NOTICES; DEFERRAL OF INTEREST
PAYMENT NOTICES. Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.09, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived. The Depositor and the Administrative Trustees are
required to file annually with the Property Trustee a certificate as to whether
or not they are in compliance with all the conditions and covenants applicable
to them under the Declaration.
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Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, the Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.01:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written representation
of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, 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) if (i) in performing its duties under this Declaration of
Trust the Property Trustee is required to decide between alternative
courses of action or (ii) in construing any of the provisions of this
Declaration of Trust the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any Provision of this
Declaration of Trust, then, except as to any matter as to which the
Securityholders are entitled to vote under the terms of this
Declaration of Trust, the Property Trustee shall deliver a notice to
the Depositor requesting written instructions of the Depositor as to
the course of action to be taken and the Property Trustee shall take
such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; PROVIDED, HOWEVER, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Declaration of Trust as it shall deem advisable
and in the best interests of the Securityholders, in
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which event the Property Trustee shall have no liability except for its
own bad faith, negligence or wilful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustee contemplated by this Declaration of Trust shall
be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of
Trust, the Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Depositor
or the Administrative Trustees (which Officers' Certificate will be
evidence only for purposes of determining entitlement to
indemnification of the Property Trustee from the Depositor but not with
respect to any liability to Securityholders);
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel of its
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of
such 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 and in accordance with such advice, such
counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees; the Property Trustee shall have the
right at any time to seek instructions concerning the administration of
this Declaration of Trust from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
of Trust at the request or direction of any of the Securityholders
pursuant to this Declaration of Trust, unless such Securityholders
shall have offered to the Property Trustee security or indemnity
satisfactory to it
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against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Property 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,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(i) the Property Trustee may execute any of its trusts or
powers hereunder or perform any of its duties hereunder either directly
or by or through its agents or attorneys, and the Property Trustee
shall not be responsible for any misconduct or negligence on the part
of or for the supervision of any such agent or attorney appointed by it
with due care hereunder;
(j) whenever in the administration of this Declaration of
Trust the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be fully protected in acting
in accordance with instructions;
(k) except as otherwise expressly provided by this Declaration
of Trust, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration of Trust;
(l) when the Property Trustee incurs expenses or renders
services in connection with a Bankruptcy Event, such expenses
(including the fees and expenses of its counsel) and the compensation
for such services are intended to constitute expenses of administration
under
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any bankruptcy law or law relating to creditors rights generally; and
(m) the Property Trustee shall not be charged with knowledge
or an Event of Default unless a Responsible Officer of the Property
Trustee obtains actual knowledge of such event or the Property Trustee
receives written notice of such event from Securityholders holding at
least 25% of the Outstanding Trust Securities (based upon Liquidation
Amount).
No provision of this Declaration of Trust shall be deemed to
impose any duty or obligation on the Property Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS. The recitals
contained herein and in the Trust Securities Certificates shall be taken as the
statements of Trust, and the Trustees do not assume any responsibility for their
correctness. The Trustees shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debt Securities.
SECTION 8.05. MAY HOLD SECURITIES. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.08
and 8.13, may otherwise deal with the Trust with the same rights it would if it
were not a Trustee or such other agent.
SECTION 8.06. COMPENSATION, INDEMNITY, FEES. Pursuant to
Section 10.06 of the Indenture, the Depositor, as borrower on the Junior
Subordinated Debt Securities, agrees:
(a) to pay to the Trustees from time to time such compensation
as shall from time to time be agreed to in writing by the Depositor and
the respective Trustees for all services rendered by them hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
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(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Declaration of Trust (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or wilful misconduct;
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless each Trustee and any employee or agent of
the Trust or its Affiliates (each referred to herein as an "Indemnified
Person") from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination
of the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration of
Trust, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or wilful misconduct with
respect to such acts or omissions; and
(d) to the fullest extent permitted by applicable law, to
advance expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding, from
time to time, prior to the final disposition of such claim, demand
action, suit or proceeding upon receipt by the Depositor of (i) a
written affirmation by or on behalf of the Indemnified Person of its or
his good faith belief that it or he has met the standard of conduct set
forth in this Section 8.06 and (ii) an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.
The provisions of this Section 8.06 shall survive the
termination of this Declaration of Trust or the earlier resignation or removal
of any Trustee.
No Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.06.
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The Depositor and any Trustee (in the case of the Property
Trustee, subject to Section 8.08 hereof) may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and none of the
Trust, the Holders, the Depositor or any such Trustee shall have any rights by
virtue of this Declaration of Trust in and to such independent ventures or the
income or profits derived therefrom, and the pursuit of any such venture, even
if competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, nor any Trustee, shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and the Depositor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any committee or body of holders of, securities or other
obligations of the Depositor or its Affiliates.
SECTION 8.07. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY
OF TRUSTEES. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least $50
million. If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its 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 Property Trustee with respect to the Trust Securities 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; PROVIDED, HOWEVER, that the Property Trustee need not qualify under the
Trust Indenture Act until such time as this Declaration of Trust is qualified
under the Trust Indenture Act.
(b) There shall at all times be one or more Administrative
Trustees hereunder. Each Administrative Trustee shall be either a natural person
who is at least
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21 years of age or a legal entity that shall act through one or more persons
authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The
Delaware Trustee shall either be (i) a natural person who is at least 21 years
of age and a resident of the State of Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.08. CONFLICTING INTERESTS. If the Property Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property 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 Declaration of Trust.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE. Unless an
Event of Default shall have occurred and be continuing, at any time or times,
for the purpose of meeting the legal requirements of the Trust Indenture Act or
of any jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor and the Administrative Trustees, by agreed action of the
majority of such Trustees, shall have power to appoint, and upon the written
request of the Administrative Trustees, the Depositor shall for such purpose
join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity.
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Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and made available
for delivery and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Trustees specified hereunder,
shall be exercised, solely by such Trustees and not by such co-trustee or
separate trustee.
(b) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument appointing
such co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case a Debenture Event of Default has occurred and
is continuing, the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without the concurrence
of the Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this Section.
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(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(e) The Property Trustee shall not be required to supervise
any co-trustee or separate trustee nor shall it be liable by reason of any act
of a co-trustee or separate trustee or any employees or agents of a co-trustee
or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. No resignation or removal of any Trustee (the "Relevant 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 8.11.
Subject to the immediately preceding paragraph, a Relevant
Trustee may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 8.11 shall not have been delivered to the Relevant Trustee
within 30 days after the giving of such notice of resignation or removal, the
Relevant Trustee may petition, at the expense of the Trust, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Outstanding Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust). An Administrative
Trustee may be removed by Act of the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees and the
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retiring Trustee shall comply with the applicable requirements of Section 8.11.
If the Property Trustee or the Delaware Trustee shall resign, be removed or
become incapable of continuing to act as the Property Trustee or the Delaware
Trustee, as the case may be, at a time when a Debenture Event of Default shall
have occurred and be continuing, the Capital Securityholders, by Act of the
Capital Securityholders of a majority in Liquidation Amount of the Capital
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the Administrative Trustee, shall promptly appoint a
successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Capital Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a Securityholder of Trust Securities 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 Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration of Trust, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies, or becomes, in the opinion of the
Depositor, incompetent or incapacitated, or, in the case of an Administrative
Trustee, ceases to be an employee of the Depositor, the vacancy created by such
death, incompetence or incapacity may be filled by (a) the unanimous act of
remaining Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees or
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Delaware Trustee, as the case may be, set forth in Section 8.07).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In the
case of the appointment hereunder of a successor Trustee, such successor Trustee
so appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee any 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 the rights, powers, trusts and duties of the retiring Trustee, but,
on the request of the Depositor 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 if the Property Trustee is the resigning Trustee the
Property Trustee shall duly assign, transfer and deliver to the successor
Property Trustee all Trust Property and money held by such retiring Property
Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Declaration of Trust as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees if the same trust and that each such Relevant
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee;
and upon the execution and delivery of such amendment the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such
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retiring Relevant Trustee hereunder with respect to the Trust Securities and the
Trust.
Upon written request of any such successor Relevant Trustee,
the Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any Person into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person 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 Relevant Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person 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.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
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claim for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute to 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 Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. Upon qualification
of this Declaration of Trust under the Trust Indenture Act,
(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. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each June 1 following the date of this
Indenture deliver to Holders a brief report, dated as of such June 1, which
complies with the provisions of such Section 313(a).
(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, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. Upon
qualification of this Indenture under the Trust
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Indenture Act, the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. Upon qualification of this Indenture under the Trust Indenture Act,
each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration of Trust that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17. NUMBER OF TRUSTEES. (a) The number of Trustees
shall be five; PROVIDED that the Holder of all of the Common Securities by
written instrument may increase or decrease the number of Administrative
Trustees. The Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filed with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustee
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
Provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
SECTION 8.18. DELEGATION OF POWER. (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 his or her power for the purpose of
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executing any documents contemplated in Section 2.07(a), including any
registration statement or amendment thereto filed with the Commission, or making
any other governmental filing; and
(b) The Administrative Trustee shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Declaration of Trust, as
set forth herein.
ARTICLE IX
Termination, Liquidation And Merger
-----------------------------------
SECTION 9.01. TERMINATION UPON EXPIRATION DATE; TERMINATION
UPON SPECIAL EVENT. Unless earlier terminated, the Trust shall automatically
terminate on May 29, 2037 (the "Expiration Date"), following the distribution of
the Trust Property in accordance with Section 9.04.
SECTION 9.02. EARLY TERMINATION. The first to
occur of any of the following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the
Depositor or the Holder of the Common Securities;
(b) the written direction to the Property Trustee from the
Depositor, as borrower with respect to the Junior Subordinated Debt
Securities, at any time (which direction is optional and wholly within
the discretion of the Depositor subject to receipt of prior approval of
the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve (including upon the
occurrence and continuation of a Tax Event, '40 Act Event or Capital
Treatment Event in respect of the Trust)) to terminate the Trust and,
after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, distribute a Like Amount of the Junior Subordinated
Debt Securities to Securityholders;
(c) the redemption of all of the Trust Securities in
connection with the redemption of all the Junior
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Subordinated Debt Securities (including upon the occurrence and
continuation of a Tax Event, '40 Act Event or a Capital Treatment Event
pursuant to Section 11.07(b) of the Indenture); and
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 9.03. TERMINATION. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the payment of
any expenses owed by the Trust, (b) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities, and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) If an Early Termination Event
specified in clause (a), (b) or (d) of Section 9.02 occurs or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
Securityholder a Like Amount of Junior Subordinated Debt Securities, subject to
Section 9.04(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 30 nor more than 90
days prior to the Liquidation Date to each Holder at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date (which in the case of any
liquidation following the occurrence of a Special Event shall not be
more than 90 days following such occurrence);
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust
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Securities Certificates for Junior Subordinated Debt Securities, or if
Section 9.04(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order
to effect the liquidation of the Trust and distribution of the Junior
Subordinated Debt Securities to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Junior
Subordinated Debt Securities in exchange for the Outstanding Trust Securities
Certificate.
(c) Except where Section 9.02(c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Junior Subordinated
Debt Securities will be issued to Holders, upon surrender of such certificates
to the Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities accruing interest
at the rate provided for in the Junior Subordinated Debt Securities from the
last Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (or until such
certificates are so surrendered, no payments of interest or principal will be
made to the Holders of Trust Securities Certificates with respect to such Junior
Subordinated Debt Securities) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Debt Securities upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debt Securities in the manner provided herein is determined by the
Property Trustee not to be practical, the Trust Property shall be liquidated,
and the Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such event, on the
date of the dissolution, winding-up or other termination of the Trust,
Securityholders will be entitled
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to receive out of the assets of the Trust available for distribution to
Securityholders after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the aggregate of the Liquidation
Amount plus accumulated and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). Holders of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid) with
Holders of Capital Securities, except that, if a Debenture Event of Default has
occurred and is continuing, the Capital Securities shall have a priority over
the Common Securities, and no payments shall be made with respect to the Common
Securities until Holders of Capital Securities have been paid in full. Any such
determination and liquidation by the Property Trustee shall be conclusive upon
the Securityholders and the Property Trustee shall have no liability in
connection therewith.
SECTION 9.05. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST. The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other Person, except
pursuant to this Section 9.05. At the request of the Depositor, with the consent
of the Administrative Trustees and without the consent of the Holders of the
Capital Securities, the Property Trustee or the Delaware Trustee, the Trust may
merge with or into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; PROVIDED, HOWEVER, that (i)
such successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Capital Securities or (b) substitutes for the Capital
Securities other securities having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Capital Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Junior
Subordinated Debt
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Securities, (iii) the Successor Securities (if Capital Securities) are listed or
traded, or any Successor Securities will be listed or traded upon notification
of issuance, on any national securities exchange or other organization on which
the Capital Securities are then listed or traded, if any, (iv) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Capital Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose identical and limited
to that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor such successor entity will be required
to register as an investment company under the 1940 Act and (viii) the Depositor
or any permitted successor or assignee owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as an association taxable as a corporation or as other than a grantor trust for
United States federal income tax purposes.
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ARTICLE X
Miscellaneous Provisions
------------------------
SECTION 10.01. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The
death, incapacity, liquidation, dissolution, termination or bankruptcy of any
Person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Declaration of Trust, nor entitle the legal
representatives or heirs of such person or any Securityholder for such person,
to claim an accounting, take any action or bring any proceeding in any court for
a partition or winding-up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
SECTION 10.02. LIABILITY OF THE DEPOSITOR. The Depositor, as
borrower with respect to the Junior Subordinated Debt Securities, shall be
liable for all the debts and obligations of the Trust (other than with respect
to payments of principal, interest, or premium, if any, on the Trust Securities)
to the extent not satisfied out of the Trust's assets.
SECTION 10.03. AMENDMENT. (a) This Declaration of Trust may be
amended from time to time by the Property Trustee, the Administrative Trustees
and the Depositor, without the consent of any Securityholders (i) to cure any
ambiguity, 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 Declaration of Trust, which shall not be
inconsistent with the other provisions of this Declaration of Trust; (ii) to
modify, eliminate or add to any provisions of this Declaration of Trust to such
extent as shall be necessary to ensure that the Trust will be classified for
United States federal income tax purposes as a grantor trust or as other than an
association taxable as a corporation at all times that any Trust Securities are
Outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; or (iii) to modify, correct or supplement
in any respect the provisions relating to the exchange of the Trust Securities
for identical securities pursuant to the Registration Rights Agreement;
PROVIDED, HOWEVER, that in the case of clauses (i) and (iii), such action shall
not adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Declaration of Trust shall become
effective when notice thereof is given to the Securityholders.
<PAGE> 74
74
(b) Except as provided in Section 10.02(c) hereof, any
provision of this Declaration of Trust may be amended by the Trustees and the
Depositor with (i) the consent of Securityholders representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust or as other than an association taxable as a corporation for
United States federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Declaration of Trust, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.03 or 6.08 hereof),
this Declaration of Trust may not be amended to (i) change the amount or timing
of any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a Securityholder
to institute suit for the enforcement of any such payment on or after such date.
Notwithstanding any other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 6.03 or
6.08 hereof), this paragraph (c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration
of Trust, no Trustee shall enter into or consent to any amendment to this
Declaration of Trust which would cause the Trust to fail or cease to qualify for
the exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust or as other than an association
taxable as a corporation for United States federal income tax purposes.
(e) Notwithstanding anything in this Declaration of Trust to
the contrary, without the consent of the Depositor this Declaration of Trust may
not be amended in a manner which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Declaration of
Trust is made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware
Trustee shall be required to enter into any amendment to
<PAGE> 75
75
this Declaration of Trust which affects its own rights, duties or immunities
under this Declaration of Trust or would otherwise expose the Property Trustee
to any liability or be contrary to applicable law. The Property Trustee shall be
entitled to receive an Officers' Certificate stating that any amendment to this
Declaration of Trust is in compliance with this Declaration of Trust.
SECTION 10.04. SEPARABILITY. In case any provision in this
Declaration of Trust or in the Trust Securities Certificates 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 10.05. GOVERNING LAW. This Declaration of Trust and
the rights and obligations of each of the Securityholders, the Trust and the
Trustees with respect to this Declaration of Trust and the Trust Securities
shall be construed in accordance with and governed by the laws of the State of
Delaware without regard to its conflict of laws principles. The provisions of
Sections 3540 and 3561 of Title 12 of the Delaware Code shall not apply to this
Trust.
SECTION 10.06. PAYMENTS DUE ON NON-BUSINESS DAY. If the date
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be made on
the next succeeding day that is a Business Day except that, if such Business Day
is in the next calendar year, then such Distribution shall be on the immediately
preceding Business Day (except as otherwise provided in Section 4.02(d)), with
the same force and effect as though made on the date fixed for such payment, and
no interest shall accrue thereon for the period after such date.
SECTION 10.07. SUCCESSORS. This Declaration of Trust shall be
binding upon and shall inure to the benefit of any successor to the Depositor,
the Trust or the Relevant Trustee, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article VI of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.08. HEADINGS. The Article and Section
headings are for convenience only and shall not affect the construction of this
Declaration of Trust.
<PAGE> 76
76
SECTION 10.09. REPORTS, NOTICES AND DEMANDS. Any report,
notice, demand or other communication which by any provision of this Declaration
of Trust is required or permitted to be given or served to or upon any
Securityholder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such Securityholder's name and
address may appear on the Securities Register, and (b) in the case of the Common
Securityholder or the Depositor, to National City Corporation, 1900 East Ninth
Street, Cleveland, Ohio 44114, Attention: Corporate Secretary. Any notice to
Capital Securityholders may also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Declaration of Trust is required or permitted to be given or
served to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to The Bank of New York, 100 Barclay Street, Floor 21 West, New York,
New York 10286; (b) with respect to the Delaware Trustee to The Bank of New York
(Delaware), White Clay Center, Route 273, Newark, Delaware 19711; and (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention: Administrative Trustees of National City
Capital Trust I". Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust or the Property
Trustee.
SECTION 10.10. AGREEMENT NOT TO PETITION. Each of the
Trustees and the Depositor agree for the benefit of the Securityholders that,
until at least one year and one day after the Trust has been terminated in
accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, insolvency, reorganization or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any
<PAGE> 77
77
Bankruptcy Laws. In the event the Depositor takes action in violation of this
Section 10.10, the Property Trustee agrees, for the benefit of Securityholders,
that at the expense of the Depositor, it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such petition by
the Depositor against the Trust or the commencement of such action and raise the
defense that the Depositor has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other defenses, if any, as
counsel for the Trustee or the Trust may assert. The provisions of this Section
10.09 shall survive the termination of this Declaration of Trust.
SECTION 10.11. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT. This Declaration of Trust will not be qualified under the Trust
Indenture Act except upon the effectiveness of a registration statement and the
consummation of an exchange offer pursuant to the Registration Agreement. By its
terms, however, this Declaration of Trust incorporates certain provisions of the
Trust Indenture Act. Upon the consummation of an exchange offer pursuant to the
Registration Agreement, clauses (a), (b), (c) and (d), below, shall apply to
this Declaration of Trust.
(a) This Declaration of Trust is subject to the provisions of
the Trust Indenture Act that are required to be part of this Declaration of
Trust and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Declaration of Trust by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision of this Declaration of Trust
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Declaration of Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration of Trust shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
<PAGE> 78
78
SECTION 10.12. ACCEPTANCE OF TERMS OF DECLARATION OF TRUST,
GUARANTEE AND INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS DECLARATION OF TRUST AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND
OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS DECLARATION OF TRUST SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
<PAGE> 79
79
SECTION 10.13. EXECUTION IN COUNTERPARTS. 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.
THIS AMENDED AND RESTATED DECLARATION OF TRUST is executed as
of the day and year first above written.
NATIONAL CITY CORPORATION, as
Depositor
by /s/ Jeffrey D. Kelly
------------------------
Name: JEFFREY D. KELLY
Title: Senior Vice President and
Investment Officer
THE BANK OF NEW YORK, as
Property Trustee
by /s/ Lucille Firrincieli
------------------------
Name: LUCILLE FIRRINCIELI
Title: Assistant Vice President
THE BANK OF NEW YORK
(DELAWARE), as Delaware
Trustee and not in its
individual capacity
by /s/ Walter N. Gitlin
------------------------
Name: WALTER N. GITLIN
Title: Authorized Signatory
/s/ J. A. Schwartz
-----------------------------
JANET A. SCHWARTZ
as Administrative Trustee not
in an individual capacity but
solely as Administrative
Trustee
/s/ David J. Lucido
-----------------------------
DAVID J. LUCIDO
as Administrative Trustee
/s/ N. Hartofillis
-----------------------------
NIKOLITSA HARTOFILLIS
as Administrative Trustee
<PAGE> 80
EXHIBIT A
CERTIFICATE OF TRUST OF
NATIONAL CITY CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of National City Capital Trust I
(the "Trust"), dated as of May 29, 1997, is being duly executed and filed by The
Bank of New York (Delaware), a Delaware banking corporation, as trustee, [ ] an
individual, as trustee, and the Delaware Business Trust Act (12 Del. C. Section
3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is
National City Capital Trust I.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are as follows: The Bank of New York (Delaware), White Clay Center, Route 273,
Newark, Delaware 19711.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first written
above.
THE BANK OF NEW YORK
(DELAWARE), not in its
individual capacity but solely
as trustee
by
----------------------------
Name:
Title: Authorized Signatory
<PAGE> 81
EXHIBIT B
IF THE CAPITAL SECURITY IS A RESTRICTED SECURITY,
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH NATIONAL CITY CORPORATION (THE
"COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE
RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE PROPERTY TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY
OR THE PROPERTY TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.]
IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL
SECURITIES CERTIFICATE, INSERT--[This Capital Securities Certificate is a Global
Capital Securities Certificate within the meaning of the Declaration of Trust
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Capital
Securities Certificate is exchangeable for Capital Securities Certificates
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the
<PAGE> 82
2
Declaration of Trust and no transfer of this Capital Securities Certificate
(other than a transfer of this Capital Securities Certificate as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
the limited circumstances described in the Declaration of Trust.
Unless this Capital Securities Certificate is presented by an
authorized representative of The Depository Trust Company (55 Water Street, New
York) to Central Fidelity Capital Trust I or its agent for registration of
transfer, exchange or payment, and any Capital Securities Certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.]
The Capital Securities are issued, any may be transferred, only in blocks having
a Liquidation Amount of other than $100,000 or an integral multiple of $100,000
in excess thereof. Any transfer, sale or other disposition of Capital Securities
in a block having a Liquidation Amount of less than $100,000 shall be deemed to
be void and of no legal effect whatsoever. Any such transferee shall be deemed
not to be the Holder of such Capital Securities for any purpose, including but
not limited to the receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH, A "PLAN"),
NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR
ANY INTEREST HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH
PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS CAPITAL SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING HEREOF THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET
ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS"
OF ANY PLAN, OR (B) IS ELIGIBLE FOR THE EXEMPTIVE
<PAGE> 83
3
RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO
SUCH PURCHASE OR HOLDING.
<PAGE> 84
4
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER CAPITAL SECURITIES
CUSIP NO. [ ]
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
NATIONAL CITY CAPITAL TRUST I
RESET ASSET CAPITAL SECURITIES(SM)
(RACS)(SM)
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
National City Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that Cede & Co. (the "Holder") is the registered owner of _________ ( ) Capital
Securities of the Trust in an aggregate liquidation amount of $____________,
representing an undivided beneficial interest in the assets of Trust and
designated National City Capital Trust I Reset Asset Capital Securities
(Liquidation Amount $1,000 per Capital Security) (the "Capital Securities"). The
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.05 of the
Declaration of Trust (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities are set forth in, and this certificate and the Capital Securities
presented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of Trust of the Trust
dated as of June 6, 1997, as the same may be amended from time to time (the
"Declaration of Trust") among National City Corporation, as Depositor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and the Administrative Trustees named therein, including the
designation of the terms of Capital Securities as set forth therein. The Holder
is entitled to the benefits of the Guarantee Agreement entered into by National
City Corporation, a Delaware corporation, and The Bank of New York, as Guarantee
Trustee, dated as of June 6, 1997 (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Declaration of Trust and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
<PAGE> 85
5
Terms used but not defined herein have the meanings set forth
in the Declaration of Trust. The Declaration of Trust and this Capital Security
shall be governed by and construed in accordance with the laws of the State of
Delaware without regard to conflicts of laws principles thereof.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this Certificate this _____ day of __________________.
NATIONAL CITY CAPITAL TRUST I
by
------------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as
Property Trustee
by
-------------------------------------
Authorized Signatory
Dated:
<PAGE> 86
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security to:
(Insert assignee's social security or tax identification
number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: __________
Signature
--------------------------------------------------------------------
(Sign exactly as your name appears on the other
side of this Capital Security Certificate)
The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with
membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.
<PAGE> 87
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER COMMON SECURITIES
Certificate Evidencing Common Securities
of
National City Capital Trust I
Floating Rate Common Securities
(Liquidation Amount $1,000 per Common Security)
National City Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that National City Corporation (the "Holder") is the registered owner of
_____________________________( ) common securities of the Trust representing
beneficial interests of the Trust and designated the Reset Asset Capital
Securities (Liquidation Amount $1,000 per Common Security) (the "Common
Securities"). Except as provided in Section 5.11 of the Declaration of Trust (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of Trust of the Trust
dated as of June 6, 1997, as the same may be amended from time to time (the
"Declaration of Trust"), among National City Corporation, as Depositor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and the Administrative Trustees named therein, including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Declaration of Trust to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Terms used but not defined herein have the meanings set forth
in the Declaration of Trust. The Declaration of Trust and this Common Security
shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to conflicts of laws principles thereof.
<PAGE> 88
2
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this _____ day of __________________.
NATIONAL CITY CAPITAL TRUST I
by
--------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as
Property Trustee
by
--------------------------------
Authorized Signatory
Dated:
<PAGE> 89
EXHIBIT D
[Form of Restricted Securities Certificate]
RESTRICTED CAPITAL SECURITIES CERTIFICATE
(For transfers pursuant to ss. 5.05(b)
of the Declaration of Trust)
[ ],
------------------------
as Security Registrar
[address]
Re: Reset Asset Capital Securities of
National City Capital Trust I (the "Trust")
(THE "CAPITAL SECURITIES")
--------------------------------------------
Reference is made to the Amended and Restated Declaration of
Trust, dated as of June 6, 1997 (the "Declaration of Trust"), among National
City Corporation, as Depositor, The Bank of New York, as Property Trustee, The
Bank of New York (Delaware), as Delaware Trustee, and the Administrative
Trustees named therein. Terms used herein and defined in the Declaration of
Trust or in Regulation D, Rule 144A or Rule 144 under the U.S. Securities Act of
1933, as amended (the "Securities Act"), are used herein as so defined.
This certificate relates to $___________ aggregate Liquidation
Amount of Capital Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s).
------------------------------------------------------------
CERTIFICATE No(s).
------------------------------------------------------
CURRENTLY IN BOOK-ENTRY FORM: Yes No (check one)
-- --
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Capital Securities
Certificate, they are held through the Clearing Agency or a Clearing Agency
Participant in the name of the Undersigned,
<PAGE> 90
2
as or on behalf of the Owner. If the Specified Securities are not represented by
a Global Capital Securities Certificate, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Capital Security. In connection with such transfer, the Owner
hereby certifies that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act, it is being effected
in accordance with one of the following (CHECK ONE):
__(1) transferred to the Depositor; or
__(2) exchanged for the undersigned's own account
without transfer; or
__(3) transferred pursuant to and in compliance with
Rule 144A under the Securities Act; or
__(4) to an institutional "accredited investor" within
the meaning of subparagraph (a)(1), (2), (3) or
(7) of Rule 501 under the Securities Act of 1933
that is acquiring the Capital Securities for its
own account, or for the account of such an
institutional "accredited investor," for
investment purposes and not with a view to, or for
offer or sale in connection with, any distribution
in violation of the Securities Act; or
__(5) transferred pursuant to another available
exemption from the registration requirements of
the Securities Act.
Unless such transfer is being effected in accordance with one of the above, the
Transfer Agent will refuse to register any of the Capital Securities evidenced
by this certificate in the name of any person other than the Holder thereof;
PROVIDED, HOWEVER, that if (4) or (5) is applicable, the Transfer Agent may
require, prior to registering any such transfer of the Capital Securities such
legal opinions, certifications and other information as the Trust has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act, such as the exemption provided by Rule 144 under such Act;
PROVIDED, FURTHER, that if (3) is applicable, the transferee must also certify
that it is a qualified institutional buyer as defined in Rule 144A.
<PAGE> 91
3
This certificate and the statements contained herein are made
for your benefit and the benefit of the Depositor, the Trust and the Initial
Purchaser.
Dated:
-----------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By:
--------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
<PAGE> 1
Exhibit 4.5
NATIONAL CITY CAPITAL TRUST I
$500,000,000
Reset Asset Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
NATIONAL CITY CORPORATION
AUCTION AGENCY AGREEMENT
June 6, 1997
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Ladies and Gentlemen:
National City Capital Trust I, a Delaware statutory trust (the
"Trust") proposes to issue and sell to UBS Securities LLC ("UBS"), upon the
terms set forth in a purchase agreement dated May 29, 1997 (the "Purchase
Agreement"), 500,000 of the Trust's Reset Asset Capital Securities, liquidation
amount $1,000 per Capital Security (the "Liquidation Amount") (including any
securities issued in exchange therefor, the "Capital Securities"), the payment
of which will be guaranteed by National City Corporation, a Delaware corporation
(the "Company") to the extent set forth in a guarantee agreement dated of even
date herewith (the "Guarantee"). The proceeds of the sale by the Trust of the
Capital Securities and its Common Securities, liquidation amount $1,000 per
Common Security (the "Common Securities"), are to be invested in the Junior
Subordinated Debt Securities of the Company having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities and the
Common Securities (including any securities issued in exchange therefor, the
"Junior Subordinated Debt Securities"). The Junior Subordinated Debt Securities
will be distributed to holders of the Capital Securities in certain
circumstances (each, a "Distribution Event").
<PAGE> 2
2
The Junior Subordinated Debt Securities will bear interest at
the applicable rate (the "Applicable Rate"). Holders of the Capital Securities
will be entitled to receive cumulative cash distributions equal to the
Applicable Rate applied to the Liquidation Amount per Capital Security, accruing
from the original date of issuance of the Capital Securities (the "Issue Date").
Prior to June 1, 1999 (or if such date is not a business day, the succeeding
business day) (the "Rate Reset Date"), the Applicable Rate will be 6.75% per
annum. The Applicable Rate on and after the Rate Reset Date will be equal to the
rate per annum resulting on the Rate Reset Pricing Date (as defined below) from
the implementation of auction procedures (the "Auction Procedures") pursuant to
which existing holders of beneficial ownership interests in the Capital
Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities) ("Existing Holders") and other persons may
determine to hold or offer to sell or, based on rates offered to them, offer to
purchase Capital Securities (or, if a Distribution Event shall have occurred,
Junior Subordinated Debt Securities). Existing Holders and other persons will
submit these determinations to hold or offers to sell or purchase to UBS, as
remarketing agent (the "Remarketing Agent") under a remarketing agreement
between the Company and UBS dated June 6, 1997 (the "Remarketing Agreement"),
prior to 1:00 p.m. (the "Submission Deadline") on the business day five business
days prior to the Rate Reset Date (the "Submission Date"). Pursuant to the
Remarketing Agreement, the Remarketing Agent will submit all the determinations
to hold or offers to sell or purchase received by it prior to the Submission
Deadline, along with certain deemed offers to sell and the Maximum Applicable
Rate (as defined herein), to the auction agent prior to 10:00 a.m. on the
business day following the Submission Date. The implementation of the Auction
Procedures will occur on the third business day preceding the Rate Reset Date
(the "Rate Reset Pricing Date") and will hereinafter be referred to as the "Rate
Reset Auction."
As used in this Agreement, the terms "rates" and "rates per
annum" shall include rates and rates per annum expressed as or determined by
reference to a spread to a specified United States Treasury security.
This is to confirm the agreement between The Bank of New York
and the Company for The Bank of New York to act as auction agent (together with
any successor or assign, the "Auction Agent") in connection with the Rate Reset
Auction.
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following
<PAGE> 3
3
meanings (terms defined in the singular shall include the plural):
"ADMINISTRATIVE TRUSTEES" means the individuals named as
administrative trustees in the Amended and Restated Declaration of Trust (the
"Declaration of Trust") relating to the Trust among the Company, as depositor,
The Bank of New York, as property trustee, The Bank of New York (Delaware), as
Delaware trustee, and the individuals named as administrative trustees
therein, or their successors or assigns as such trustees.
"AUTHORIZED OFFICER" means each Senior Vice President, Vice
President, Assistant Vice President, Senior Trust Officer and Trust Officer of
the Auction Agent assigned to its Corporate Trust Department and every other
officer or employee of the Auction Agent designated as an Authorized Officer for
purposes hereof in a communication to the Company.
"BID" means an Order (i) indicating the Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of outstanding Junior Subordinated Debt Securities), if
any, that an Existing Holder desires to continue to hold if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or (ii) indicating the Liquidation Amount of outstanding
Capital Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding Junior Subordinated Debt Securities), if any,
that a Potential Holder desires to purchase if the Applicable Rate on and after
the Rate Reset Date is not less than the rate per annum specified by such
Potential Holder.
"BUSINESS DAY" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or a day on
which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
"COMPANY OFFICER" means the Chairman of the Board of Directors
of the Company, the President, each Vice President (whether or not designated by
a number or word or words added before or after the title Vice President), the
Secretary, the Treasurer, each Assistant Secretary and each Assistant Treasurer
of the Company and every other officer or employee of the Company designated as
a Company Officer for purposes hereof in a notice to the Auction Agent.
<PAGE> 4
4
"DEBENTURE TRUSTEE" means The Bank of New York, as trustee
under the Indenture, or its successor or assign as such trustee.
"DELAWARE TRUSTEE" means The Bank of New York (Delaware), as
Delaware trustee for the Amended and Restated Declaration of Trust relating to
the Trust among the Company, as depositor, The Bank of New York, as property
trustee, The Bank of New York (Delaware), as Delaware trustee, and the
individuals named as administrative trustees therein, or its successor or assign
as such trustee.
"HOLD ORDER" means an Order indicating the Liquidation Amount
of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder desires to continue to hold
without regard to the Applicable Rate on and after the Rate Reset Date.
"INDENTURE" means the indenture, as supplemented from time to
time, between the Company and the Debenture Trustee, under which the Junior
Subordinated Debt Securities are to be issued as a separate series.
"ISSUER TRUSTEES" means, collectively, the Administrative
Trustee, the Delaware Trustee and the Property Trustee.
"MAXIMUM APPLICABLE RATE" means the Treasury Rate (as defined
in Section 2.02 of the Indenture) on the Rate Reset Pricing Date plus 5.0% per
annum.
"ORDER" means any Hold Order, Bid or Sell Order communicated
or deemed communicated to the Remarketing Agent in writing on a form provided by
the Company and approved by the Remarketing Agent for the purpose.
"PERSON" means any individual, corporation, association,
company, joint-stock company, business trust, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"POTENTIAL HOLDER" means an Existing Holder or other Person
who makes a Bid to purchase Capital Securities (or, if a Distribution Event
shall have occurred, Junior Subordinated Debt Securities) if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or other Person.
<PAGE> 5
5
"PROPERTY TRUSTEE" means The Bank of New York, as property
trustee for the Amended and Restated Declaration of Trust relating to the Trust
among the Company, as depositor, The Bank of New York, as property trustee, The
Bank of New York (Delaware), as Delaware trustee, and the individuals named as
administrative trustees therein, or its successor or assign as such trustee.
"SELL ORDER" means (i) an Order indicating the Liquidation
Amount of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder offers to sell without regard to
the Applicable Rate on and after the Rate Reset Date, or (ii) a Sell Order
deemed by the Remarketing Agent to have been submitted by an Existing Holder
because an Order or Orders covering the entire outstanding Liquidation Amount of
Capital Securities (or, if a Distribution Event shall have occurred, the entire
outstanding principal amount of Junior Subordinated Debt Securities) held by
such Existing Holder was not submitted to the Remarketing Agent prior to the
Submission Deadline.
"SUBMISSION DATE" means the business day five business days
prior to the Rate Reset Date.
"SUBMISSION DEADLINE" means 1:00 p.m. on the Submission Date.
"SUBMITTED BID" means, after the Submission Deadline, all Bids
submitted by Existing Holders or Potential Holders through the Remarketing Agent
to the Auction Agent.
"SUBMITTED HOLD ORDER" means, after the Submission Deadline,
all Hold Orders submitted by Existing Holders through the Remarketing Agent to
the Auction Agent.
"SUBMITTED SELL ORDER" means, after the Submission Deadline,
all Sell Orders submitted or deemed submitted by Existing Holders through the
Remarketing Agent to the Auction Agent.
"SUFFICIENT CLEARING BIDS" means an amount of Submitted Bids
by Potential Holders such that the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the principal
amount of outstanding Junior Subordinated Debt Securities) that is the subject
of such Submitted Bids with rates not higher than the Maximum Applicable Rate
equals or exceeds the Liquidation Amount of outstanding Capital Securities (or,
if a Distribution Event shall have occurred, the principal amount of outstanding
Junior Subordinated Debt
<PAGE> 6
6
Securities) that is the subject of Submitted Sell Orders (including the
Liquidation Amount of Capital Securities (or, if a Distribution Event shall
have occurred, the principal amount of Junior Subordinated Debt Securities) as
to which Sell Orders are deemed to have been submitted and the Liquidation
Amount of Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of Junior Subordinated Debt Securities) subject to Bids by
Existing Holders specifying rates higher than the Maximum Applicable Rate).
2. APPOINTMENT OF AUCTION AGENT; OBLIGATIONS OF AUCTION AGENT.
(a) Subject to the terms and conditions herein contained, the Company hereby
appoints The Bank of New York, and The Bank of New York hereby accepts such
appointment, as the Auction Agent in connection with the Rate Reset Auction.
(b) The Auction Agent hereby agrees that it will assemble all
Orders submitted to it by the Remarketing Agent prior to 10:00 a.m. on the
business day following the Submission Date and will determine whether one or
more of the submitted Orders cover, in the aggregate, more than the Liquidation
Amount of Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of the Junior Subordinated Debt Securities) held by any
Existing Holder. If so, the Auction Agent hereby agrees that it will consider
such Orders valid in the following order of priority:
(i) all Hold Orders shall be considered valid, but only up to
and including the Liquidation Amount of outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of outstanding Junior Subordinated Debt Securities) held by such
Existing Holder;
(ii)(A) any Bid shall be considered valid up to and including
the excess of the Liquidation Amount of outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of outstanding Junior Subordinated Debt Securities) held by such
Existing Holder over the aggregate Liquidation Amount of Capital
Securities (or, if a Distribution Event shall have occurred, the
aggregate principal amount of Junior Subordinated Debt Securities)
subject to any Hold Orders referred to in clause (i) above;
(B) subject to subclause (A), if more than one Bid with the
same rate is submitted by such Existing Holder and the aggregate
Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the aggregate principal amount
of
<PAGE> 7
7
outstanding Junior Subordinated Debt Securities) subject to such Bids
is greater than such excess, such Bids shall be considered valid
up to and including the amount of such excess;
(C) subject to subclause (A), if more than one Bid with
different rates is submitted by such Existing Holder, such Bids shall
be considered valid in the ascending order of their respective rates up
to the amount of such excess; and
(D) in any such event, the aggregate Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal amount of outstanding Junior
Subordinated Debt Securities), if any, subject to Bids not valid under
this clause (ii) shall be treated as the subject of a Bid by a
Potential Holder; and
(iii) all Sell Orders shall be considered valid but only up to
and including the excess of the Liquidation Amount of outstanding
Capital Securities (or, if a Distribution Event shall have occurred,
the excess of the principal amount of outstanding Junior Subordinated
Debt Securities) held by such Existing Holder over the aggregate
Liquidation Amount of Capital Securities (or, if a Distribution Event
shall have occurred, the aggregate principal amount of Junior
Subordinated Debt Securities) subject to Hold Orders referred to in
clause (i) above and valid Bids referred to in clause (ii) above.
(c) The Auction Agent hereby agrees that it will, if any rate
specified in any Bid contains more than three figures to the right of the
decimal point, round such rate up to the next highest one-thousandth (.001) of
1%.
(d) The Auction Agent hereby agrees that it will reject any
Order covering an aggregate Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, aggregate principal amount of Junior
Subordinated Debt Securities) not equal to $100,000 or an integral multiple of
$100,000 in excess thereof.
(e) The Auction Agent hereby agrees that it will determine
whether any Bids specify a rate higher than the Maximum Applicable Rate and will
(i) treat any such Bids as a Sell Order if submitted by an Existing Holder and
(ii) reject any such Bids if submitted by a Potential Holder.
(f) The Auction Agent hereby agrees that it will assemble all
Orders submitted or deemed submitted to it by the Remarketing Agent prior to
10:00 a.m. on the business
<PAGE> 8
8
day following the Submission Date and will determine the excess of the
Liquidation Amount of outstanding Capital Securities (or, if a Distribution
Event shall have occurred, the excess of the principal amount of outstanding
Junior Subordinated Debt Securities) over the Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities) subject to Submitted Hold Orders (such excess, the "Available
Capital Securities", or, if a Distribution Event shall have occurred, the
"Available Junior Subordinated Debt Securities") and whether Sufficient
Clearing Bids have been made in the Rate Reset Auction.
(g) The Auction Agent hereby agrees that it will, if
Sufficient Clearing Bids have been made (other than because all of the
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
all of the outstanding Junior Subordinated Debt Securities) are subject to
Submitted Hold Orders), determine the lowest rate per annum specified in the
Submitted Bids (the "Winning Bid Rate") which, taking into account the rates in
the Submitted Bids by Existing Holders, would result in Existing Holders which
submitted Submitted Bids continuing to hold an aggregate Liquidation Amount of
Capital Securities (or, if a Distribution Event shall have occurred, aggregate
principal amount of Junior Subordinated Debt Securities) which, when added to
the Liquidation Amount of outstanding Capital Securities (or, if a Distribution
Event shall have occurred, the principal amount of outstanding Junior
Subordinated Debt Securities) to be purchased by Potential Holders, based on the
rates in the Submitted Bids submitted by them, would equal not less than the
Available Capital Securities (or, if a Distribution Event shall have occurred,
the Available Junior Subordinated Debt Securities).
(h) The Auction Agent hereby agrees that it will, if
Sufficient Clearing Bids have been made (other than because all of the
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
all of the outstanding Junior Subordinated Debt Securities) are subject to
Submitted Hold Orders) and subject to paragraph (i) below, accept or reject
Submitted Bids so that Existing Holders and Potential Holders of Capital
Securities (or, if a Distribution Event shall have occurred, Junior Subordinated
Debt Securities) sell, continue to hold (it being understood that Existing
Holders which submitted Hold Orders shall continue to hold the Capital
Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities) subject to such Hold Orders) and/or purchase
Capital Securities (or, if a Distribution Event shall have occurred, Junior
Subordinated Debt Securities) as set forth below:
<PAGE> 9
9
(i) each Existing Holder that submitted a Submitted Sell Order
or a Submitted Bid specifying a rate higher than the Winning Bid Rate
shall sell the Liquidation Amount of outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of outstanding Junior Subordinated Debt Securities) subject to such
Submitted Sell Order or Submitted Bid;
(ii) each Existing Holder that submitted a Submitted Bid
specifying a rate lower than the Winning Bid Rate shall continue to
hold the Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to such
Submitted Bid;
(iii) each Potential Holder that submitted a Submitted Bid
specifying a rate lower than the Winning Bid Rate shall purchase the
Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to such
Submitted Bid;
(iv) each Existing Holder that submitted a Submitted Bid
specifying a rate equal to the Winning Bid Rate shall continue to hold
the Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to such
Submitted Bid, unless the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding Junior Subordinated Debt Securities)
subject to all such Submitted Bids is greater than the excess of the
Available Capital Securities (or, if a Distribution Event shall have
occurred, the excess of the Available Junior Subordinated Debt
Securities) over the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding Junior Subordinated Debt Securities)
accounted for in clauses (ii) and (iii) above, in which event each
Existing Holder with such a Submitted Bid shall sell a Liquidation
Amount of outstanding Capital Securities (or, if a Distribution Event
shall have occurred, a principal amount of outstanding Junior
Subordinated Debt Securities) subject to such Submitted Bid determined
on a pro rata basis based on the aggregate Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal
<PAGE> 10
10
amount of outstanding Junior Subordinated Debt Securities) subject to
all such Submitted Bids by such Existing Holders; and
(v) each Potential Holder that submitted a Submitted Bid
specifying a rate equal to the Winning Bid Rate shall purchase any
Available Capital Securities (or, if a Distribution Event shall have
occurred, any Available Junior Subordinated Debt Securities) not
accounted for in clauses (ii), (iii) or (iv) above on a pro rata basis
based on the Liquidation Amount of outstanding Capital Securities (or,
if a Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to all such
Submitted Bids.
(i) The Auction Agent hereby agrees that, if as a result of
the procedures enumerated in this Section 2, any Existing Holder would be
entitled or required to sell, or any Potential Holder would be entitled or
required to purchase, a Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, a principal amount of Junior
Subordinated Debt Securities) that is not equal to $100,000 or an integral
multiple of $100,000 in excess thereof, it will, in such manner as is in its
sole discretion, round up or down the Liquidation Amount of Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount of Junior
Subordinated Debt Securities) being sold or purchased in the Rate Reset Auction
so that the Liquidation Amount of Capital Securities (or, if a Distribution
Event shall have occurred, the principal amount of Junior Subordinated Debt
Securities) sold or purchased by each Existing Holder or Potential Holder shall
be equal to $100,000 or an integral multiple of $100,000 in excess thereof.
(j) The Auction Agent hereby agrees that, if as a result of
the procedures enumerated in this Section 2, any Potential Holder would be
entitled or required to purchase less than $100,000 Liquidation Amount of
Capital Securities (or, if a Distribution Event shall have occurred, less than
$100,000 principal amount of Junior Subordinated Debt Securities), it will, in
such manner as is in its sole discretion, allocate Liquidation Amounts of
Capital Securities (or, if a Distribution Event shall have occurred, principal
amounts of Junior Subordinated Debt Securities) for purchase among Potential
Holders so that only Liquidation Amounts of Capital Securities (or, if a
Distribution Event shall have occurred, principal amounts of Junior Subordinated
Debt Securities) equal to $100,000 or an integral multiple in excess thereof are
purchased by any such Potential Holder, it being understood that the Auction
Agent will effect such allocation even if one or more
<PAGE> 11
11
Potential Holders who would otherwise be entitled or required to do so will be
as a result prevented thereby from purchasing Capital Securities (or, if a
Distribution Event shall have occurred, Junior Subordinated Debt Securities).
(k) The Auction Agent hereby agrees that it will, if
applicable, advise the Remarketing Agent, the Company, the Issuer Trustees and
the Debenture Trustee of the Winning Bid Rate by 9:00 a.m. on the Rate Reset
Pricing Date.
(l) The Auction Agent hereby agrees that it will, if
applicable, advise the Remarketing Agent, the Company, the Issuer Trustees and
the Debenture Trustee by 9:00 a.m. on the Rate Reset Pricing Date if all of the
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, all of the outstanding Junior Subordinated Debt Securities) are
subject to Submitted Hold Orders.
(m) The Auction Agent hereby agrees that it will, if
applicable, advise the Remarketing Agent, the Company, the Issuer Trustees and
the Debenture Trustee by 9:00 a.m. on the Rate Reset Pricing Date that
Sufficient Clearing Bids were not made in the Rate Reset Auction.
(n) The Auction Agent will be entitled to rely on all Orders
submitted or deemed submitted to it and the Maximum Applicable Rate submitted to
it, in each case by the Remarketing Agent prior to 10:00 a.m. on the business
day following the Submission Date.
3. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
THE COMPANY. (a) The Company represents, warrants, covenants and agrees with the
Auction Agent as follows:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware
and is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended, and has all necessary power and
authority to execute and deliver this Agreement and to authorize,
create and issue the Capital Securities, Common Securities and Junior
Subordinated Debt Securities;
(ii) this Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Auction Agent, constitutes the legal,
valid and binding obligation of the Company subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium,
receivership or similar laws, whether statutory or decisional, relating
to or
<PAGE> 12
12
affecting creditors' rights and to general equitable principles
(regardless of whether enforcement is sought in equity or at law);
(iii) the form of the respective certificates evidencing the
Capital Securities, Common Securities and Junior Subordinated Debt
Securities complies with all applicable laws of the State of Delaware;
(iv) the Capital Securities, Common Securities and Junior
Subordinated Debt Securities, when issued, delivered and paid for on
the Issue Date as contemplated by the Purchase Agreement, will have
been duly authorized, validly issued, fully paid and nonassessable;
(v) no consent, authorization or order of, or filing or
registration with, any court, governmental agency or official (except
such as have been obtained and such as may be required under the
Securities Act of 1933, as amended, or the Investment Company Act
or under the blue sky or state securities laws) is required in
connection with the execution and delivery of this Agreement or the
issuance of the Capital Securities, Common Securities or Junior
Subordinated Debt Securities; and
(vi) the issuance and sale of the Capital Securities, Common
Securities and Junior Subordinated Debt Securities, the execution,
delivery and performance of this Agreement, compliance by the Company
with all provisions hereof, and the consummation of the transactions
contemplated hereby or by the Purchase Agreement will not conflict
with, constitute a breach of any of the terms or provisions of, or a
default under, or result in the creation or imposition of any material
lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, any agreement, indenture or instrument to
which the Company is a party or by which the Company is bound, or
result in a violation of the Declaration of Trust or by-laws of the
Company or of any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or its
property which conflict, breach, default, lien or violation,
individually or in the aggregate, would have a material adverse effect
on the business, financial position or results of operations of the
Company.
4. DUTIES AND RESPONSIBILITIES OF THE AUCTION AGENT. (a) The
Auction Agent is acting solely as agent for the Company hereunder and owes no
fiduciary duties to any other Person by reason of this Agreement.
<PAGE> 13
13
(b) The Auction Agent undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Auction
Agent.
(c) In the absence of bad faith or gross negligence on its
part, the Auction Agent shall not be liable for any action taken, suffered, or
omitted or for any error of judgment made by it in the performance of its duties
under this Agreement except that the Auction Agent shall be liable for any error
of judgment made in good faith if the Auction Agent shall have been grossly
negligent in ascertaining the pertinent facts.
(d) Any funds deposited with the Auction Agent by the Company
for any reason that remain with the Auction Agent after 12 months shall be
repaid to the Company upon the written request of the Company.
5. RIGHTS OF THE AUCTION AGENT. (a) The Auction Agent may rely
and shall be protected in acting or refraining from acting upon any
communication authorized hereby and upon any written instruction, notice,
request, direction, consent, report, certificate or other instrument, paper or
document believed by it to be genuine.
(b) The Auction Agent may consult with counsel reasonably
acceptable to the Company and the advice of such 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.
(c) The Auction Agent shall not be required to advance, expend
or risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder.
6. AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no
representation as to the validity or adequacy of this Agreement (except as to
the Auction Agent's duties hereunder and as to the due authorization, execution
and delivery of this Agreement), or the Capital Securities, Common Securities or
Junior Subordinated Debt Securities.
7. COMPENSATION, EXPENSES AND INDEMNIFICATION. (a) The Company
shall pay the Auction Agent from time to time reasonable compensation for all
services rendered by it under this Agreement in such amounts as may be agreed to
by the Company and the Auction Agent from time to time.
(b) The Company shall reimburse the Auction Agent upon its
request for all reasonable expenses, disbursements
<PAGE> 14
14
and advances incurred or made by the Auction Agent in accordance with any
provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel), except any expense or disbursement
attributable to its gross negligence or bad faith.
(c) The Company shall indemnify the Auction Agent for and hold
it harmless against, any loss, liability or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection with its
agency under this Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with its exercise or
performance of its duties hereunder for which indemnification is provided by
this subsection.
8. MISCELLANEOUS. (a) The term of this Agreement is unlimited
unless it shall be terminated as provided in this Section 8(a). The Company may
terminate this Agreement any time by so notifying the Auction Agent in writing,
provided that the Company has entered into an agreement in substantially the
form of this Agreement with a successor trust company. The Auction Agent may
terminate this Agreement upon written notice to the Company, such termination to
be effective on the date on which a successor trust company is appointed by the
Company pursuant to an agreement containing substantially the same terms and
conditions as this Agreement. If the agreement of appointment shall not have
been delivered to the Company within 30 days after giving of such notice of
resignation, the Auction Agent may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor trust
company to serve as Auction Agent in connection with the Rate Reset Auction.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Company and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The Company's
obligations under Section 7 hereof and its representations and warranties
contained in Section 3 hereof shall survive the termination hereof. Upon
termination of this Agreement, the Auction Agent shall, at the Company's
request, promptly deliver to the Company copies of all books and records
maintained by it in connection with its duties hereunder.
<PAGE> 15
15
(c) All notices, requests and other communications to any
party hereunder shall be in writing (including telecopy or similar writing)
given to such person at its address or telecopy number set forth below:
The Auction Agent:
The Bank of New York
101 Barclay Street, 12E Floor
New York, NY 10286
Attention: Freddy Acebedo
Corporate Trust Administration
Facsimile: (212) 815-7157
The Company:
The address set forth on the first page of this
Agreement.
Attention: Corporate Treasury
Facsimile: (216) 575-2983
The Remarketing Agent:
UBS Securities LLC
299 Park Avenue
New York, NY 10171
Attention: Richard Messina
Facsimile: (212) 821-4816
or to such other address as the party to whom the communication is addressed
shall have previously communicated to the other party. Communications shall be
given on behalf of the Company by a Company Officer and on behalf of the Auction
Agent by an Authorized Officer. Communications shall be effective when received
at the proper address.
(d) This Agreement contains the entire agreement between the
parties relating to the subject matter hereof, and there are no other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties.
(e) Nothing herein, express or implied, shall give to any
Person, other than the Company, the Auction Agent and their respective
successors and assigns, any
<PAGE> 16
16
benefit of any legal or equitable right, remedy or claim hereunder.
(f) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged. Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such rights or remedies with respect to any
subsequent breach.
<PAGE> 17
(g) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the respective successors of each of the Company and
the Auction Agent.
(h) If any clause, provision or section hereof shall be ruled
invalid or unenforceable by any court of competent jurisdiction, the invalidity
or unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
(i) This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
(j) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
THE BANK OF NEW YORK,
by /s/ F. Acebedo
----------------------
FERNANDO ACEBEDO
Title: Assistant Treasurer
Accepted and agreed to as of
the date first above written:
NATIONAL CITY CORPORATION,
by /s/ Jeffrey D. Kelly
------------------------------------
Title: Executive Vice President and
Senior Investment Officer
Acknowledged and accepted as
of the date first above written:
UBS SECURITIES LLC,
by /s/ Matthew J. Grayson
-----------------------------------
Title: Managing Director
<PAGE> 1
EXHIBIT 4.6
NATIONAL CITY CAPITAL TRUST I
$500,000,000
RESET ASSET CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED
BY
NATIONAL CITY CORPORATION
REMARKETING AGREEMENT
June 6, 1997
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Ladies and Gentlemen:
National City Capital Trust I, a Delaware statutory trust (the
"Trust") proposes to issue and sell to UBS Securities LLC ("UBS"), upon the
terms set forth in a purchase agreement dated May 29, 1997, 500,000 of the
Trust's Reset Asset Capital Securities, liquidation amount $1,000 per Capital
Security (the "Liquidation Amount") (including any securities issued in exchange
therefor, the "Capital Securities"), the payment of which will be guaranteed by
National City Corporation, a Delaware corporation (the "Company") to the extent
set forth in a guarantee agreement dated of even date herewith (the
"Guarantee"). The proceeds of the sale by the Trust of the Capital Securities
and its Common Securities, liquidation amount $1,000 per Common Security (the
"Common Securities"), are to be invested in the Junior Subordinated Debt
Securities of the Company having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities and the Common Securities
(including any securities issued in exchange therefor, the "Junior Subordinated
Debt Securities"). The Junior Subordinated Debt Securities will be distributed
to holders of the Capital Securities in certain circumstances (each, a
"Distribution Event").
The Junior Subordinated Debt Securities will bear interest at
the applicable rate (the "Applicable Rate").
<PAGE> 2
2
Holders of the Capital Securities will be entitled to receive cumulative cash
distributions equal to the Applicable Rate applied to the Liquidation Amount per
Capital Security, accruing from the original date of issuance of the Capital
Securities (the "Issue Date"). Prior to June 1, 1999 (or if such date is not a
business day, the succeeding business day) (the "Rate Reset Date"), the
Applicable Rate will be 6.75% per annum. The Applicable Rate on and after the
Rate Reset Date will be equal to the rate per annum resulting on the Rate Reset
Pricing Date (as defined below) from the implementation of auction procedures
(the "Auction Procedures") pursuant to which existing holders of beneficial
ownership interests in the Capital Securities (or, if a Distribution Event shall
have occurred, the Junior Subordinated Debt Securities) ("Existing Holders") and
other persons may determine to hold or offer to sell or, based on rates offered
to them, offer to purchase Capital Securities (or, if a Distribution Event shall
have occurred, Junior Subordinated Debt Securities). The implementation of the
Auction Procedures will occur on the third business day preceding the Rate Reset
Date (the "Rate Reset Pricing Date") and will hereinafter be referred to as the
"Rate Reset Auction."
As used in this Agreement, the terms "rates" and "rates per
annum" shall include rates and rates per annum expressed as or determined by
reference to a spread to a specified United States Treasury security.
This is to confirm the agreement between UBS and the Company
for UBS to act as exclusive remarketing agent (the "Remarketing Agent") in
connection with the Rate Reset Auction.
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following meanings (terms defined in
the singular shall include the plural):
"AUCTION AGENT" means The Bank of New York, as auction agent
under the Auction Agency Agreement, or its successor or assign as such auction
agent.
"BID" means an Order (i) indicating the Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of outstanding Junior Subordinated Debt Securities), if
any, that an Existing Holder desires to continue to hold if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or (ii) indicating the Liquidation Amount of outstanding
Capital Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding
<PAGE> 3
3
Junior Subordinated Debt Securities), if any, that a Potential Holder desires to
purchase if the Applicable Rate on and after the Rate Reset Date is not less
than the rate per annum specified by such Potential Holder.
"BIDDER" means an Existing Holder or a Potential Holder which
submits an Order.
"BUSINESS DAY" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or a day on
which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
"DEBENTURE TRUSTEE" means The Bank of New York, as trustee
under the Indenture, or its successor or assign as such trustee.
"HOLD ORDER" means an Order indicating the Liquidation Amount
of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder desires to continue to hold without
regard to the Applicable Rate on and after the Rate Reset Date.
"INDENTURE" means the indenture, as supplemented from time to
time, between the Company and the Debenture Trustee, under which the Junior
Subordinated Debt Securities are to be issued as a separate series.
"MAXIMUM APPLICABLE RATE" means the Treasury Rate (as defined
in Section 2.02 of the Indenture) on the Rate Reset Pricing Date plus 5.0% per
annum.
"ORDER" means any Hold Order, Bid or Sell Order communicated
or deemed communicated to the Remarketing Agent in writing on a form provided by
the Company and approved by the Remarketing Agent for the purpose.
"PERSON" means any individual, corporation, association,
company, joint-stock company, business trust, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"POTENTIAL HOLDER" means an Existing Holder or other Person
who makes a Bid to purchase Capital Securities (or, if a Distribution Event
shall have occurred, Junior Subordinated Debt Securities) if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or other Person.
<PAGE> 4
4
"PROPERTY TRUSTEE" shall mean The Bank of New York, as
property trustee for the Amended and Restated Declaration of Trust relating to
the Trust among the Company, as depositor, The Bank of New York, as property
trustee, The Bank of New York (Delaware), as Delaware trustee, and the
individuals named as administrative trustees therein, or its successor or assign
as such trustee.
"SELL ORDER" means an Order indicating the Liquidation Amount
of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder offers to sell without regard to
the Applicable Rate on and after the Rate Reset Date, and any deemed Sell Order
pursuant to Section 2(c)(ii) hereof.
"SUBMISSION DATE" means the business day five business days
prior to the Rate Reset Date.
"SUBMISSION DEADLINE" means 1:00 p.m. on the Submission Date.
"SUBMITTED BID" means, after the Submission Deadline, all Bids
submitted by Existing Holders or Potential Holders through the Remarketing Agent
to the Auction Agent.
"SUBMITTED SELL ORDER" means, after the Submission Deadline,
all Sell Orders submitted or deemed submitted by Existing Holders through the
Remarketing Agent to the Auction Agent.
"SUFFICIENT CLEARING BIDS" means an amount of Submitted Bids
by Potential Holders such that the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the principal
amount of outstanding Junior Subordinated Debt Securities) that is the subject
of such Submitted Bids with rates not higher than the Maximum Applicable Rate
equals or exceeds the Liquidation Amount of outstanding Capital Securities (or,
if a Distribution Event shall have occurred, the principal amount of outstanding
Junior Subordinated Debt Securities) that is the subject of Submitted Sell
Orders (including the Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of Junior
Subordinated Debt Securities) as to which Sell Orders are deemed to have been
submitted and the Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of Junior
Subordinated Debt Securities) subject to Bids by
<PAGE> 5
5
Existing Holders specifying rates higher than the Maximum Applicable Rate).
2. APPOINTMENT OF REMARKETING AGENT; OBLIGATIONS
OF COMPANY AND REMARKETING AGENT. (a) Subject to the terms and conditions herein
contained, the Company hereby appoints UBS, and UBS hereby accepts such
appointment, as the exclusive Remarketing Agent in connection with the Rate
Reset Auction.
(b) The Company hereby agrees that it will provide, or cause
to be provided, to the Remarketing Agent a list of the registered holders of the
Capital Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities), and, if the Capital Securities (or, if a
Distribution Event shall have occurred, the Junior Subordinated Debt Securities)
are represented by global certificates ("Global Certificates") registered to the
Depository Trust Company ("DTC") or its nominee, the participants in DTC (the
"Participants") that hold interests in the Capital Securities (or, if a
Distribution Event shall have occurred, the Junior Subordinated Debt
Securities), by the tenth business day prior to the Rate Reset Date, and will
update such list from time to time as requested by the Remarketing Agent. The
Remarketing Agent will be entitled to rely on the information furnished by the
Company and any Participant.
(c) The Remarketing Agent, on the condition that it has
received any Offering Materials requested pursuant to Section 3 hereof and any
other document requested pursuant to Section 3(b) hereof, hereby agrees that it
will:
(i) exercise its best efforts to solicit Hold Orders from
Existing Holders and Bids from Existing Holders and Potential Holders
so that there are Sufficient Clearing Bids;
(ii) deem a Sell Order to have been submitted in the amount of
the difference by which an Existing Holder's Order or Orders, if any,
submitted to it prior to the Submission Deadline account for less than
the entire outstanding Liquidation Amount of Capital Securities (or, if
a Distribution Event shall have occurred, the entire outstanding
principal amount of Junior Subordinated Debt Securities) held by such
Existing Holder;
(iii) submit all Orders submitted to it or deemed submitted to
it pursuant to clause (ii) above prior to the Submission Deadline to
the Auction Agent prior to 10:00 a.m. on the business day following the
Submission Date, it being understood that the Remarketing Agent
<PAGE> 6
6
will be under no obligation to submit to the Auction Agent (A) any
communications submitted to it other than on the form provided by the
Company for the purpose of indicating Orders, (B) any Orders submitted
to it other than in a Liquidation Amount of Capital Securities (or, if
a Distribution Event shall have occurred, a principal amount of Junior
Subordinated Debt Securities) of $100,000 or an integral multiple of
$100,000 in excess thereof, (C) any Bid from any Potential Holder which
specifies more than one rate or Liquidation Amount of Capital
Securities (or, if a Distribution Event shall have occurred, principal
amount of Junior Subordinated Debt Securities) or (D) any Orders
submitted to it after the Submission Deadline;
(iv) submit the Maximum Applicable Rate in writing
to the Auction Agent prior to 10:00 a.m. on the
business day following the Submission Date;
(v) on the Rate Reset Pricing Date, advise each Existing
Holder or Potential Holder that submitted an Order of the Applicable
Rate which will apply on and after the Rate Reset Date, and, if such
Order was a Bid, whether such Bid was accepted or rejected, and whether
in whole or in part;
(vi) on the Rate Reset Pricing Date, confirm purchases and
sales with each Bidder purchasing or selling Capital Securities (or, if
a Distribution Event shall have occurred, Junior Subordinated Debt
Securities) as a result of the Rate Reset Auction;
(vii) if the Capital Securities (or, if a Distribution Event
shall have occurred, the Junior Subordinated Debt Securities) are
represented by Global Certificates, advise DTC on the Rate Reset
Pricing Date as to which of its Participants' book-entry accounts for
the Capital Securities (or, if a Distribution Event shall have
occurred, the Junior Subordinated Debt Securities) should be adjusted
(and in what amount) to reflect Bids, Hold Orders and/or Sell Orders
which were accepted in the Rate Reset Auction;
(viii) if any of the Capital Securities (or, if a Distribution
Event shall have occurred, the Junior Subordinated Debt Securities) are
represented by individual certificates, advise The Bank of New York (or
any successor or assign), as Registrar, at an address and to a contact
person to be provided by the Company, on the Rate Reset Pricing Date as
to which of the registered holders of Capital Securities (or, if a
Distribution Event shall have occurred, Junior
<PAGE> 7
7
Subordinated Debt Securities) in individual certificated form submitted
(or were deemed to submit) Bids, Hold Orders and/or Sell Orders which
were accepted in the Rate Reset Auction and in what amounts; and
(ix) purchase on the Rate Reset Date the aggregate Liquidation
Amount of Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal amount of Junior Subordinated Debt
Securities) purchased by Potential Holders whose Bids were accepted in
the Rate Reset Auction.
3. FURNISHING OF OFFERING MATERIALS. (a) If the Remarketing
Agent determines that it is necessary or desirable to use any offering materials
in connection with the performance of its obligations enumerated in Section 2,
the Remarketing Agent will so notify the Company, and the Remarketing Agent will
not be obligated to perform those obligations until it has been provided (and
the Company will use its best efforts to provide) such offering materials which
are satisfactory to the Remarketing Agent and its outside counsel. If, based on
the advice of its outside counsel, the Remarketing Agent concludes that it
cannot perform its obligations enumerated in Section 2 without all or any
portion of the outstanding Capital Securities (together with the Guarantee) (or,
if a Distribution Event shall have occurred, the outstanding Junior Subordinated
Debt Securities) being registered under the Securities Act of 1933, as amended
(the "Act"), the Company agrees to file, and, if applicable, agrees to cause the
Trust to file a registration statement relating to any such Capital Securities
(together with the Guarantee) (or, if a Distribution Event shall have occurred,
Junior Subordinated Debt Securities) with the Securities and Exchange Commission
(the "Commission"). Each prospectus included in such registration statement, or
amendment thereof, before it becomes effective under the Act and any prospectus
which may be filed by the Company with the Commission pursuant to Rule 424(a)
(or any successor applicable rule) of the rules and regulations under the Act
(the "Rules and Regulations") in connection with such registration statement is
hereinafter referred to as a "Preliminary Prospectus." The final prospectus
which will be filed with the Commission pursuant to Rule 424(b) (or any
successor applicable rule) of the Rules and Regulations and deemed to be a part
of such registration statement at the time of its effectiveness under the Act
pursuant to paragraph (b) of Rule 430A (or any successor applicable rule) of the
Rules and Regulations is hereinafter referred to as the "Prospectus". Such
registration statement, as amended at the date and the time as of which it or
its most recent post-effective amendment is declared effective by the Commission
(the "Effective
<PAGE> 8
8
Time"), is hereinafter referred to as the "Registration Statement". Any
offering materials requested by the Remarketing Agent pursuant to the first
sentence of this Section 3(a), any registration statement filed with the
Commission pursuant to the second sentence of this Section 3(a), the
Registration Statement, the Prospectus, any Preliminary Prospectus and any
amendment or supplement to any of them are hereinafter referred to as the
"Offering Materials".
(b) The Company will provide the Remarketing Agent with such
certificates, opinions of counsel, accountants' letters and other support for
the information contained in any Offering Materials as the Remarketing Agent and
its counsel may reasonably request.
(c) If, at any time from the day 90 days prior to the
Submission Date to and including the Rate Reset Date, any event relating to or
affecting the Company, the Capital Securities (or, if a Distribution Event shall
have occurred, the Junior Subordinated Debt Securities) or any of the documents
described in any Offering Materials shall occur which might materially affect
the correctness or completeness of any statement of a material fact contained in
any Offering Materials, the Company will promptly notify the Remarketing Agent
in writing of the circumstances and details of such event, including as provided
in Section 3(e)(v).
(d) The Company will supply the Remarketing Agent, at no
expense to the Remarketing Agent, with as many copies as the Remarketing Agent
may request of any Offering Materials, including as provided in Section 3(e)(v),
and will amend the Offering Materials (and any documents that may be
incorporated by reference therein), including as provided in Section 3(e)(v) and
otherwise at the request of the Remarketing Agent, so that the Offering
Materials will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading.
(e) If a registration statement is filed with the Commission
pursuant to Section 3(a), the Company hereby agrees that it will:
(i) make such filing at least 90 days prior to the Submission
Date (such date of filing, the "Filing Date") and use its best efforts
to cause such registration statement (including any post-effective
amendment thereto) to become effective prior to the Submission Date;
<PAGE> 9
9
(ii) prepare such registration statement in conformity with
the requirements of the Act and the Rules and Regulations;
(iii) prepare the Prospectus in a form approved by the
Remarketing Agent and file the Prospectus pursuant to Rule 424(b) (or
any successor applicable rule) under the Act prior to the Rate Reset
Date or, if applicable, such earlier time as may be required by Rule
430A(a)(3) (or any successor applicable rule) under the Act; make no
further amendment or any supplement to the Registration Statement or to
the Prospectus except as permitted herein; advise the Remarketing
Agent, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and furnish the Remarketing Agent with copies thereof;
advise the Remarketing Agent, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the Capital
Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt 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 the Prospectus or for
additional information; and in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, promptly use its best efforts to obtain its withdrawal;
(iv) furnish promptly to the Remarketing Agent and to counsel
for the Remarketing Agent a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
(v) deliver promptly to the Remarketing Agent such number of
the following documents as the Remarketing Agent shall reasonably
request: (1) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits) and (2) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the
<PAGE> 10
10
Capital Securities (or, if a Distribution Event shall have occurred,
the Junior Subordinated Debt Securities) or any other securities
relating thereto and if at such time any events 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 to amend or supplement the Prospectus in order to
comply with the Act, notify the Remarketing Agent and, upon its
request, prepare and furnish without charge to the Remarketing Agent as
many copies as the Remarketing Agent may from time to time reasonably
request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(vi) file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Act or requested by the Commission;
(vii) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 (or any applicable successor rule) of
the Rules and Regulations, furnish a copy thereof to the Remarketing
Agent and counsel for the Remarketing Agent and obtain the consent of
the Remarketing Agent to the filing;
(viii) as soon as practicable after the Effective Time, make
generally available to the Company's security holders and deliver to
the Remarketing Agent an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
(or any applicable successor section) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158 (or any
applicable successor rule)).
(ix) promptly from time to time take such action as the
Remarketing Agent may request to qualify the Capital Securities (or, if
a Distribution Event shall have occurred, the Junior Subordinated Debt
Securities) for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to take all
steps necessary to comply with such laws so as to permit the
continuance of sales and dealings
<PAGE> 11
11
therein in such jurisdictions for as long as may be necessary to
complete the distribution of Capital Securities (or, if a Distribution
Event shall have occurred, the Junior Subordinated Debt Securities);
PROVIDED, HOWEVER, that in connection therewith the Company will not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not so
qualified.
4. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
THE COMPANY. (a) The Company represents, warrants, covenants and agrees with
the Remarketing Agent as follows:
(i) the Company has full power and authority to enter into
this Agreement and will have full power and authority to enter into any
agreements which it may enter into in connection with the transactions
contemplated by any Offering Materials; this Agreement and the
transactions contemplated hereby have been, and each other such
agreement and the transactions contemplated thereby will be, duly
authorized, executed and delivered by the Company; and this Agreement
is, and each such other agreement will be at the Rate Reset Date, a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(ii) the consummation of the transactions contemplated herein
do not now, and the consummation of the transactions contemplated in
any other agreement entered into by the Company in connection with the
transactions contemplated by any Offering Materials will not, at the
Rate Reset Date, conflict with or constitute a breach of, or a default
under, or result in the creation or imposition of any lien, charge or
other encumbrance upon any property or assets of the Trust, the Company
or any of the Company's subsidiaries pursuant to any contract,
indenture, declaration of trust, deed of trust, mortgage, loan
agreement, note, lease or other instrument or agreement to which the
Trust, the Company or any of its subsidiaries is or will be a party or
by which it or any of them may be bound, or to which any of the
property or assets of any of them is or will be subject, nor will such
actions result in any violation of the provisions of the by-laws of the
Company or any of its subsidiaries or any statute (including the Act,
the Exchange Act and state securities laws) or any order, rule or
regulation of any court or governmental agency or body (including the
Commission) which has or will have jurisdiction over the Company or any
of its subsidiaries or any of their
<PAGE> 12
12
material property or assets except for a conflict, breach, default,
lien, charge or encumbrance which could not reasonably be expected to
have a material adverse effect on the consummation of the transactions
contemplated herein or therein;
(iii) all required consents, rulings and approvals of
governmental authorities (other than "Blue Sky" authorities) required
in connection with the execution and delivery by the Company of this
Agreement and any agreement entered into by the Company in connection
with the transactions contemplated by any Offering Materials, and the
performance by the Company of its obligations hereunder and thereunder,
have been obtained and are in full force and effect or, at the Rate
Reset Date, will have been obtained and be in full force and effect;
(iv) except as disclosed in the Offering Materials, neither
the Company nor any of its subsidiaries is or, at the Rate Reset Date,
will be (i) in violation of its by-laws, (ii) in default in any
respect, and no event has occurred or will have occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any contract, indenture, declaration of trust, deed of
trust, mortgage, loan agreement, note, lease or other instrument or
agreement to which it is or will be bound or to which any of its
properties or assets is or will be subject or (iii) in violation of any
law, ordinance, governmental rule, regulation or court decree to which
it or its property or assets may be subject;
(v) the Offering Materials, including as provided in Section
4(x), will not, at the Rate Reset Date, 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 that no representation or warranty is made as to information
contained in or omitted from the Offering Materials in reliance upon
and in conformity with written information furnished to the Company by
the Remarketing Agent specifically for inclusion therein;
(vi) the financial statements of the Company contained (or
incorporated by reference) in the Offering Materials will present
fairly the financial position of the Company as of the dates indicated,
and the results of operations and changes in financial position of the
Company for the periods covered, in
<PAGE> 13
13
conformity with generally accepted accounting principles applied on a
consistent basis, except as otherwise set forth therein;
(vii) after the date of the most recent financial statements
of the Company contained (or incorporated by reference) in the Offering
Materials, there will not have been any material adverse change in the
condition (financial or other), stockholders' equity, results of
operations or business of the Company and its subsidiaries, except as
disclosed in the Offering Materials;
(viii) except as disclosed in the Offering Materials, there
will be no legal or governmental proceedings pending at the Rate Reset
Date to which the Company or any of its subsidiaries is a party or of
which any material property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse
effect on the condition (financial or other), stockholders' equity,
results of operations or business of the Company and its subsidiaries,
taken as a whole;
(ix) any description of a contract, indenture, declaration of
trust, deed of trust, mortgage, loan agreement, note, lease or other
instrument or agreement contained in the Offering Materials will be, at
the Rate Reset Date, true, complete and correct; and
(x) If a registration statement is filed pursuant to Section
3(a), the Registration Statement at the Effective Time will conform to
the requirements of the Act 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, and the Prospectus, as of the Rate
Reset Date, will conform to the requirements of the Act and the Rules
and Regulations and will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that no representation or warranty
is made as to information contained in or omitted from any Preliminary
Prospectus, the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for inclusion therein.
<PAGE> 14
14
5. TERM OF REMARKETING AGREEMENT; RESIGNATION OF REMARKETING
AGENT; SURVIVAL. This Agreement shall become effective upon execution and
delivery by the Remarketing Agent and the Company and shall continue in full
force and effect to and including the Rate Reset Date. The Remarketing Agent may
resign on not less than 15 calendar days' written notice.
6. PAYMENT OF FEES AND EXPENSES. In consideration of the
services to be performed by the Remarketing Agent under this Agreement, the
Company agrees to pay to the Remarketing Agent, if there are Sufficient Clearing
Bids in the Rate Reset Auction, a fee equal to .50% of the Liquidation Amount of
the Capital Securities (or, if a Distribution Event shall have occurred, .50% of
the principal amount of the Junior Subordinated Debt Securities) outstanding on
the Rate Reset Pricing Date.
In addition, the Company will reimburse the Remarketing Agent
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by it in connection with
the performance of its obligations enumerated in Section 2.
Whether or not there are Sufficient Clearing Bids in the Rate
Reset Auction, the Company agrees to pay (a) the costs incident to the
preparation, printing and distribution of the Offering Materials; (b) the
registration fee and other costs of filing under the Act any Registration
Statement, any Prospectus and any exhibits or amendments thereto; (c) the fees
and expenses of qualifying the Capital Securities (or, if a Distribution Event
shall have occurred, the Junior Subordinated Debt Securities) under the
securities laws of the several jurisdictions as provided in Section 3(e)(ix) and
of preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Remarketing Agent); (d) the fees and
disbursements of counsel for the Remarketing Agent in connection with its review
of the Offering Materials; and (e) the fees and expenses of the Auction Agent,
the Property Trustee and the Debenture Trustee (including any fees and expenses
of their respective counsel) in connection with the transactions contemplated
hereby, including the Rate Reset Auction.
7. CONDITIONS. The obligations of the Remarketing Agent
hereunder will be subject to the accuracy, when made and on the Rate Reset Date,
as applicable, of the representations and warranties of the Company, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
<PAGE> 15
15
(i) the Offering Materials at the Rate Reset Date 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 that this condition to the
Remarketing Agent's obligations hereunder will not apply with respect
to information contained in or omitted from the Offering Materials in
reliance upon and in conformity with written information furnished to
the Company by the Remarketing Agent specifically for inclusion
therein;
(ii) to the extent that any Offering Materials have been
provided to the Remarketing Agent pursuant to Section 3, the
Remarketing Agent will have received such certificates, opinions of
counsel, accountants' letters and other support for the information
contained in such Offering Materials as the Remarketing Agent or its
counsel shall have requested pursuant to Section 3(b) with effect, if
requested by the Remarketing Agent, on and as of the Rate Reset Date;
(iii) on the Rate Reset Date (a) trading generally shall not
have been suspended or materially limited on or by, as the case may be,
the New York Stock Exchange, (b) trading of any notes or other
securities of or guaranteed by the Company shall not have been
suspended on any exchange or in any over-the-counter market, (c) a
general moratorium on commercial banking activities in New York shall
not have been declared by either federal or New York State authorities
or (d) there shall not have occurred any outbreak or escalation of
hostilities or any calamity or crisis that, in the judgment of the
Remarketing Agent, is material and adverse and which, in the judgment
of the Remarketing Agent, makes it impracticable for it to perform any
of its obligations enumerated in Section 2;
(iv) subsequent to the day ninety days prior to the Submission
Date or, if earlier, the Filing Date, there will not have been any
decrease in the rating of any of the Company's debt securities by a
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) (or any applicable successor rule) under the
Act) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not
indicate the direction of the possible change;
(v) no event will have occurred which would permit a Capital
Event, '40 Act Event or Tax Event (each as defined in the Indenture) to
become effective, except as disclosed in the Offering Materials; and
<PAGE> 16
16
(vi) any registration statement required to be filed with the
Commission pursuant to Section 3(a) will have been so filed and become
effective on or prior to the respective dates specified in Section
3(a); the Prospectus will have been filed with the Commission pursuant
to Rule 424(b) (or any applicable successor rule) within the applicable
time period prescribed for such filing by the Rules and Regulations and
prior to the Rate Reset Date; no stop order suspending the
effectiveness of the Registration Statement or any part thereof will
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with;
and no order suspending the qualification of the Capital Securities
(or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities) under any applicable state securities or
"Blue Sky" laws shall have been issued, and no proceeding for that
purpose shall have been initiated or threatened.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees
to indemnify and hold harmless the Remarketing Agent, the directors, officers,
employees and agents of the Remarketing Agent and each person who controls the
Remarketing Agent within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Offering Materials, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made in any Offering Materials, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by the
<PAGE> 17
17
Remarketing Agent specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) The Remarketing Agent agrees to indemnify and hold
harmless each of the Company, its directors and officers, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to the
Remarketing Agent, but only with reference to written information relating to
the Remarketing Agent furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion in any Offering Materials (or in
any amendment or supplement thereto). This indemnity agreement will be in
addition to any liability which the Remarketing Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, 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
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ one separate counsel (and, in addition, one local counsel in
any relevant jurisdiction for an indemnified party), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
<PAGE> 18
18
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Remarketing Agent agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and the Remarketing
Agent may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and by the Remarketing Agent from the
actions contemplated hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Remarketing Agent shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Remarketing Agent in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the aggregate Liquidation Amount of the Capital Securities (or, if a
Distribution Event shall have occurred, the aggregate principal amount of the
Junior Subordinated Debt Securities) outstanding after the Rate Reset Date, less
the amount of the remarketing fee payable to the Remarketing Agent pursuant to
the first paragraph of Section 6, and benefits received by the Remarketing Agent
shall be deemed to be equal to the remarketing fee received by the Remarketing
Agent pursuant to the first paragraph of Section 6. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company, on the one hand, or the
Remarketing Agent, on the other. The Company and the
<PAGE> 19
19
Remarketing Agent agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Remarketing Agent within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of the Remarketing
Agent shall have the same rights to contribution as the Remarketing Agent, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act and each officer and director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. NOTICES. All notices under this Agreement
shall be in writing and mailed, delivered or transmitted to:
The Remarketing Agent:
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Attention of Richard Messina
Facsimile: (212) 821-4816
The Company:
The address set forth on the first page of
this Agreement.
Attention of Corporate Treasury
Facsimile: (216) 575-2983
Any party may, by notice given under this Agreement, designate
another address to which notices hereunder shall be directed.
10. MISCELLANEOUS. (a) The rights and obligations of the
respective parties hereto may not be assigned or delegated to any other person
without the consent of the other party hereto. This Agreement will inure to the
benefit of and be binding upon the Company and
<PAGE> 20
20
the Remarketing Agent and their respective successors and assigns, and, except
as expressly set forth herein, will not confer any rights upon any other person,
partnership, association or corporation.
(b) All of the representations, warranties, covenants and
agreements (including Sections 6, 8 and 10(f) of this Agreement) of the Company
and the Remarketing Agent in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Remarketing Agent or the Company or (ii) termination or cancelation of this
Agreement.
(c) Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
<PAGE> 21
21
(d) If any provision of this Agreement shall be held or deemed
to be or shall, in fact, be invalid, inoperative or unenforceable as applied in
any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions, because it conflicts with any provisions of any constitution,
statute, rule of public policy or any other reason, such circumstances shall not
have the effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions of this Agreement invalid, inoperative or unenforceable
to any extent whatever.
(e) This Agreement may be executed in several counterparts
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
UBS SECURITIES LLC,
by /s/ Matthew J. Grayson
------------------------------
Title: Managing Director
Accepted and agreed to as of
the date first above written:
NATIONAL CITY CORPORATION,
by /s/ Jeffrey D. Kelly
--------------------------------
Title: Executive Vice President
and Senior Investment
Officer
<PAGE> 1
Exhibit 4.8
===============================================================================
GUARANTEE AGREEMENT
Between
NATIONAL CITY CORPORATION
(as Guarantor)
and
THE BANK OF NEW YORK
(as Trustee)
Dated as of
_________________, 1997
===============================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310(a) ................................................................ 4.01(a)
310(b) ................................................................ 4.01(c), 2.08
310(c) ................................................................ Inapplicable
311(a) ................................................................ 2.02(b)
311(b) ................................................................ 2.02(b)
311(c) ................................................................ Inapplicable
312(a) ................................................................ 2.02(a)
312(b) ................................................................ 2.03(b)
313(a) ................................................................ 2.03
313(b) ................................................................ 2.03
313(c) ................................................................ 2.03
313(d) ................................................................ 2.03
314(a) ................................................................ 2.04
314(b) ................................................................ Inapplicable
314(c) ................................................................ 2.05
314(d) ................................................................ Inapplicable
314(e) ................................................................ 1.01, 2.05,
3.02
314(f) ................................................................ 2.01, 3.02
315(a) ................................................................ 3.01(d)
315(b) ................................................................ 2.07
315(c) ................................................................ 3.01(c)
315(d) ................................................................ 3.01(d)
316(a) ................................................................ 1.01, 2.06,
5.04
316(b) ................................................................ 5.03, 5.04
316(c) ................................................................ 8.02
317(a) ................................................................ Inapplicable
317(b) ................................................................ Inapplicable
318(a) ................................................................ 2.01(b)
</TABLE>
- --------------------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any of
its terms or provisions.
- i -
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Definitions
-----------
<S> <C> <C>
SECTION 1.01. Definitions..................................................... 2
ARTICLE II
Trust Indenture Act
-------------------
SECTION 2.01. Trust Indenture Act; Application................................ 6
SECTION 2.02. List of Holders................................................. 6
SECTION 2.03. Reports by the Guarantee Trustee................................ 7
SECTION 2.04. Periodic Reports to Guarantee Trustee........................... 7
SECTION 2.05. Evidence of Compliance with Conditions
Precedent..................................................... 7
SECTION 2.06. Events of Default; Waiver....................................... 7
SECTION 2.07. Event of Default; Notice........................................ 8
SECTION 2.08. Conflicting Interests........................................... 8
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
--------------------------------------------------
SECTION 3.01. Powers and Duties of the Guarantee
Trustee...................................................... 8
SECTION 3.02. Certain Rights of Guarantee Trustee............................ 10
SECTION 3.03. Indemnity...................................................... 12
SECTION 3.04. Expenses....................................................... 12
ARTICLE IV
Guarantee Trustee
-----------------
SECTION 4.01. Guarantee Trustee; Eligibility................................... 12
SECTION 4.02. Appointment, Removal and Resignation of
the Guarantee Trustee......................................... 13
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE V
Guarantee
---------
<S> <C> <C>
SECTION 5.01. Guarantee...................................................... 13
SECTION 5.02. Waiver of Notice and Demand.................................... 14
SECTION 5.03. Obligations Not Affected....................................... 14
SECTION 5.04. Rights of Holders.............................................. 15
SECTION 5.05. Guarantee of Payment........................................... 15
SECTION 5.06. Subrogation.................................................... 15
SECTION 5.07. Independent Obligations........................................ 16
ARTICLE VI
Covenants and Subordination
---------------------------
SECTION 6.01. Subordination.................................................. 16
SECTION 6.02. Pari Passu Guarantees.......................................... 16
ARTICLE VII
Termination
-----------
SECTION 7.01. Termination.................................................... 16
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. Successors and Assigns......................................... 17
SECTION 8.02. Amendments..................................................... 17
SECTION 8.03. Notices........................................................ 17
SECTION 8.04. Benefit........................................................ 18
SECTION 8.05. Interpretation................................................. 18
SECTION 8.06. Governing Law.................................................. 19
</TABLE>
- iii -
<PAGE> 5
GUARANTEE AGREEMENT, dated as of
____________, 1997, executed and delivered by
NATIONAL CITY CORPORATION, a Delaware corporation
(the "Guarantor") having its principal office at 1900
East Ninth Street, Cleveland, Ohio 44114- 3484, and
THE BANK OF NEW YORK, a New York banking corporation,
as trustee (the "Guarantee Trustee"), for the benefit
of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of
NATIONAL CITY CAPITAL TRUST I, a Delaware statutory
business trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as of June 6, 1997, executed by the
Company, as Depositor, The Bank of New York (Delaware), as Delaware Trustee, The
Bank of New York, as Property Trustee, and the Administrative Trustees named
therein, the Issuer issued $500,000,000 aggregate Liquidation Amount of its
Reset Asset Capital Securities, Liquidation Amount $1,000 per security (the "Old
Capital Securities"), and $15,463,918 aggregate Liquidation Amount of its Common
Securities, Liquidation Amount $1,000 per security (the "Common Securities"),
representing undivided beneficial ownership interests in the assets of the
Issuer and having the terms set forth in the Declaration of Trust in a
transaction not subject to the registration requirements of the Securities Act
of 1933, as amended (the "Act");
WHEREAS the Old Capital Securities and the Common Securities
were issued by the Issuer and the proceeds thereof were used by the Issuer to
purchase Junior Subordinated Debt Securities, due June 1, 2029 (the "Old Junior
Subordinated Debt Securities") of the Guarantor, which have been exchanged for
Exchange Junior Subordinated Debt Securities due June 1, 2029 of the Guarantor
(the "Exchange Junior Subordinated Debt Securities," and together with the Old
Junior Subordinated Debt Securities, collectively the "Junior Subordinated Debt
Securities"), which Exchange Junior Subordinated Debt Securities will be
deposited with The Bank of New York, as Property Trustee under the Declaration
of Trust, as trust assets;
WHEREAS as incentive for the Holders to purchase the Old
Capital Securities the Guarantor desired irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders of the Capital
Securities (as defined herein) the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein;
WHEREAS, the Guarantor and the Issuer agreed to conduct an
exchange offer pursuant to which the Old Capital Securities would be exchanged
for up to $500,000,000 aggregate Liquidation Amount of the Issuer's Exchange
Reset Asset Capital Securities,
<PAGE> 6
Liquidation Amount $1,000 per security (the "Exchange Capital Securities," and
together with the Old Capital Securities, collectively the "Capital Securities")
of the Issuer representing identical preferred individual beneficial interests
in the assets of the Issuer that have been registered under the Act and the
Guarantor agreed to exchange its guarantee of the Old Capital Securities for a
guarantee of the Exchange Capital Securities registered under the Act (the
Capital Securities and the Common Securities are collectively referred to herein
as the "Trust Securities"); and
WHEREAS, the guarantees provided by this Guarantee Agreement
with respect to the Exchange Capital Securities have been registered under the
Act.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Capital Securities, which purchase the Guarantor agreed shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Capital Securities.
ARTICLE I
Definitions
SECTION 1.01. DEFINITIONS. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings assigned to such
terms in the Declaration of Trust as in effect on the date hereof.
"Act" shall have the meaning specified in the recitals
of this Guarantee Agreement.
"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; PROVIDED, HOWEVER, that the Issuer
shall not be deemed to be an Affiliate of the Guarantor. 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.
"Capital Securities" shall have the meaning specified in the recitals
of this Guarantee Agreement.
"Common Securities" shall have the meaning specified in the
recitals of this Guarantee Agreement.
- 2 -
<PAGE> 7
"Debt" means, with respect to any Person, (i) the principal of
and premium, if any, and unpaid interest on indebtedness for money borrowed,
(ii) purchase money and similar obligations, (iii) obligations under capital
leases, (iv) guarantees, assumptions or purchase commitments relating to, or
other transactions as a result of which the Company is responsible for the
payment of such indebtedness of others, (v) renewals, extensions and refunding
of any such indebtedness, (vi) interest or obligations in respect of any such
indebtedness accruing after the commencement of any insolvency or bankruptcy
proceedings and (vii) obligations associated with derivative products such as
interest rate and currency exchange contracts, foreign exchange contracts,
commodity contracts and similar arrangements.
"Declaration of Trust" shall have the meaning specified in the
recitals of this Guarantee Agreement.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement; PROVIDED,
HOWEVER, that, except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not have
cured such default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration of Trust) required to be
paid on the Capital Securities, to the extent the Issuer shall have funds on
hand available therefor at such time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to the Capital Securities called for redemption by the
Issuer to the extent the Issuer shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Issuer, unless Junior Subordinated Debt Securities are
distributed to the Holders of the Capital Securities or all of the Capital
Securities are redeemed, the lesser of (a) the aggregate of the Liquidation
Amount of $1,000 per Capital Security plus accrued and unpaid Distributions on
the Capital Securities to the date of payment (the "Liquidation Distribution")
to the extent the Issuer shall have funds on hand available to make such payment
at such time and (b) the amount of assets of the Issuer remaining available for
distribution to Holders of the Capital Securities upon liquidation of the Issuer
after satisfaction of liabilities to creditors of the Issuer as required by
applicable law.
"Guarantee Trustee" means The Bank of New York, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee
- 3 -
<PAGE> 8
Agreement and thereafter means each such Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Capital Securities; PROVIDED, HOWEVER, that in
determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as
of June 6, 1997, as supplemented and amended between the Guarantor and The Bank
of New York, as trustee, relating to the issuance of the Junior Subordinated
Debt Securities.
"Issuer" shall have the meaning specified in the
recitals of this Guarantee Agreement.
"List of Holders" has the meaning specified in Section
2.02(a).
"Majority in Liquidation Amount of the Capital Securities"
means, except as provided by the Trust Indenture Act, a vote by the Holder(s),
voting separately as a class of more than 50% of the aggregate Liquidation
Amount of all then Outstanding Capital Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer, President or a
Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each officer,
condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" when used with respect to the Guarantee
Trustee means any officer assigned to the Corporate Trust Office, including any
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Guarantee Agreement,
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Senior Debt" means (a) the principal of, and premium, if any,
and interest on all indebtedness of the Guarantor for money borrowed, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, (b) all obligations to make payment pursuant to the terms
of financial instruments, such as (i) securities contracts and foreign currency
exchange contracts, (ii) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts, and (iii) similar financial instruments; except, in the case
of both (a) and (b) above, such indebtedness and obligations that are expressly
stated to rank junior in right of payment to, or PARI PASSU in right of payment
with, the Junior Subordinated Debt Securities, (c) and indebtedness or
obligations of others of the kind described in both (a) and (b) above for the
payment of which the Guarantor is responsible or liable as guarantor or
otherwise, and (d) any deferrals, renewals or extensions of any such Senior
Debt; PROVIDED, HOWEVER, that Senior Debt shall not be deemed to include (i) any
Debt of the Guarantor which, when incurred and without respect to any election
under Section 1111(b) of the United States Bankruptcy Code of 1978, was without
recourse to the Guarantor, (ii) any Debt of the Guarantor to any of its
subsidiaries, (iii) Debt to any employee of the Guarantor, (iv) Debt which by
its terms is subordinated to trade accounts payable or accrued liabilities
arising in the ordinary course of business to the extent that payments made to
the holders of such debt by the holders of the Junior Subordinated Debt
Securities as a result of the subordination provisions of the Indenture would be
greater than
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such payments otherwise would have been as a result of any obligation of such
holders of such debt to pay amounts over to the obligees on such trade accounts
payable or accrued liabilities arising in the ordinary course of business as a
result of subordination provisions to which such Debt is subject and (v) any
other debt securities issued pursuant to the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended.
"Trust Securities" shall have the meaning specified in the
recitals of this Guarantee Agreement.
ARTICLE II
Trust Indenture Act
-------------------
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement will not be qualified under the
Trust Indenture Act except upon the effectiveness of a registration statement
with respect to this Guarantee Agreement pursuant to a registration rights
agreement as contemplated in Article XII of the Indenture.
(b) Upon qualification under the Trust Indenture Act as
contemplated in clause (a) above, if and to the extent that any provision of
this Guarantee Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.02. LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (i) semiannually, on or before May 15th and November 15th
of each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of a
date not more than 15 days prior to the delivery thereof, and (ii) at such other
times as the Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders as of a date not
more than 15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and is
not identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee
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<PAGE> 11
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), Section 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE.
(a) The Guarantee Trustee shall transmit to Holders such
reports concerning the Guarantee Trustee and its actions under this Guarantee as
may be required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than September 15th in
each calendar year, commencing with September 15, 1997.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Guarantee Trustee with each securities
exchange upon which the Capital Securities are listed and also with the
Securities and Exchange Commission. The Guarantor will promptly notify the
Guarantee Trustee whenever the Capital Securities are listed on any securities
exchange.
SECTION 2.04. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by any officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of the Capital Securities may, by vote, on behalf
of the Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to
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any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 2.07. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known to the Guarantee
Trustee, unless such Events of Default have been cured before the giving of such
notice; PROVIDED, that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee or a
trust committee of directors and/or Responsible Officers in good faith determine
that the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written notice of
such Event of Default.
SECTION 2.08. CONFLICTING INTERESTS. The Declaration of Trust
shall be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
--------------------------------------------------
SECTION 3.01. POWERS AND DUTIES OF THE GUARANTEE
TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder exercising his
or her rights pursuant to Section 5.04(iv) or to a Successor Guarantee Trustee
on acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
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<PAGE> 13
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.06), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically required
to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders
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<PAGE> 14
of not less than a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Guarantee Agreement or indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely and shall be
fully 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 reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by all
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
relating to compliance by the Guarantor with any of its obligations
contained in this Guarantee Agreement be proved or established before
taking, suffering or omitting to take any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or written opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any
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<PAGE> 15
action taken, suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or opinion. Such legal counsel
may be legal counsel to the Guarantor or any of its Affiliates and may
be one of its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity reasonably satisfactory to it, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including
such reasonable advances as may be requested by the Guarantee Trustee;
PROVIDED, that nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement.
(vi) The Guarantee 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 Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received and (C) shall be fully protected in acting in accordance with
such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or
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obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Guarantee Trustee shall be unqualified or incompetent
in accordance with applicable law, to perform any such act or acts or to
exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
SECTION 3.03. INDEMNITY. The Guarantor agrees to indemnify the
Guarantee Trustee and its directors, officers, agents and employees for, and to
hold them harmless against, any and all loss, damage, claim, liability or
expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the 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. The Guarantee Trustee will
not claim or exact any lien or charge on any Guarantee Payments as a result of
any amount due to it under this Guarantee Agreement. This indemnity shall
survive the termination of this Guarantee Agreement or the resignation or
removal of the Guarantee Trustee.
SECTION 3.04. EXPENSES. The Guarantor shall from time to time
reimburse the Guarantee Trustee for its expenses and costs incurred in
connection with the performance of its duties hereunder. This reimbursement
obligation shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
ARTICLE IV
Guarantee Trustee
-----------------
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY. (a)
There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) 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, and shall be a corporation meeting the
requirements of Section 310(c) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
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<PAGE> 17
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.10(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF
THE GUARANTEE TRUSTEE.
(a) Subject to Section 4.02(b), in the absence of the
existence of an Event of Default, the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 30
days after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
---------
SECTION 5.01. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the
Issuer), as and when due, regardless
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of any defense, right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders. The Guarantor shall give
written notice to the Guarantee Trustee as promptly as practicable in the event
it makes any direct payment hereunder.
SECTION 5.02. WAIVER OF NOTICE AND DEMAND. The Guarantor
hereby waives notice of acceptance of the Guarantee Agreement and, with respect
to its obligations under Section 5.01, hereby waives presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.03. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee Agreement
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Capital
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than any extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Junior Subordinated Debt Securities as
so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Capital Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
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<PAGE> 19
(e) any invalidity of, or defect or deficiency in, the
Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain the consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.04. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount of the Capital
Securities have the right among themselves, the other Holders, if any, and the
Guarantee Trustee to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer or any other Person.
SECTION 5.05. GUARANTEE OF PAYMENT. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Junior Subordinated Debt Securities to Holders as provided in
the Declaration of Trust.
SECTION 5.06. SUBROGATION. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Issuer in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee Agreement and
shall have the right to waive payment by the Issuer pursuant to Section 5.01;
PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee
Agreement, if at the time of any such payment, any amounts are
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<PAGE> 20
due and unpaid under this Guarantee Agreement. If any amount shall be paid to
the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders. Any amounts paid over to and not subsequently recovered from the
Holders pursuant to any insolvency law shall be deemed to have been applied by
the Holders to the Guarantee Payments.
SECTION 5.07. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Capital Securities and that the Guarantor
shall (without duplication of amounts paid by or on behalf of the issuer) be
liable as principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.03
hereof.
ARTICLE VI
Covenants and Subordination
---------------------------
SECTION 6.01. SUBORDINATION. This Guarantee Agreement
will constitute an unsecured obligation of the Guarantor and will
rank subordinate and junior in right of payment to all Senior
Debt of the Guarantor.
SECTION 6.02. PARI PASSU GUARANTEES. This Guarantee Agreement
shall rank PARI PASSU with any similar guarantee agreements issued by the
Guarantor on behalf of the holders of trust securities issued by a trust created
by the Guarantor similar to National City Capital Trust I.
ARTICLE VII
Termination
-----------
SECTION 7.01. TERMINATION. This Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full payment of the
Redemption Price of all Capital Securities, (ii) the distribution of Junior
Subordinated Debt Securities to the Holders in exchange for all of the Capital
Securities or (iii) full payment of the amounts payable in accordance with the
Declaration of Trust upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must repay any sums
paid with respect to Capital Securities or this Guarantee Agreement.
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<PAGE> 21
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities then outstanding.
Except in connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article VIII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. AMENDMENTS. Except with respect to any changes
which do not adversely affect the rights of the Holders in any material respect
(in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not less
than a Majority in Liquidation Amount of the outstanding Capital Securities. The
provisions of Article VI of the Declaration of Trust concerning meetings of the
Holders shall apply to the giving of such approval.
SECTION 8.03. NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied
(confirmed by delivery of the original) or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below
or such other address, facsimile number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
NATIONAL CITY CORPORATION
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Facsimile No.: (216) 575-2983
Attention: Corporate Treasury
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer
may, at the Issuer's direction, give notice to the Holders:
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NATIONAL CITY CAPITAL TRUST I
c/o National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Facsimile No.: (216) 575-2983
Attention: Corporate Treasury
with a copy to:
The Bank of New York
101 Barclay Street
21st Floor West
New York, NY 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee:
The Bank of New York
101 Barclay Street
21st Floor West
New York, NY 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.04. BENEFIT. This Guarantee Agreement is
solely for the benefit of the Holders and is not separately
transferable from the Capital Securities.
SECTION 8.05. INTERPRETATION. In this Guarantee
Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
- 18 -
<PAGE> 23
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06 GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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.
- 19 -
<PAGE> 24
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
NATIONAL CITY CORPORATION
By:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Guarantee
Trustee
By:
-----------------------------------------
Name:
Title:
- 20 -
<PAGE> 1
EXHIBIT 4.10
NATIONAL CITY CAPITAL TRUST I
$500,000,000
Reset Asset Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
NATIONAL CITY CORPORATION
REGISTRATION AGREEMENT
June 6, 1997
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Dear Sirs:
National City Capital Trust I, a Delaware statutory business
trust (the "Trust"), and National City Corporation, a Delaware corporation (the
"Company"), as guarantor, propose to issue and sell to UBS Securities LLC (the
"Purchaser"), upon the terms set forth in a purchase agreement dated May 29,
1997 (the "Purchase Agreement"), 500,000 of the Trust's Reset Asset Capital
Securities, liquidation amount $1,000 per Capital Security (the "Capital
Securities" and together with the guarantee by the Company of the payment of the
Capital Securities to the extent set forth in the Guarantee, the "Pass-through
Securities") (the "Initial Placement"). The proceeds of the sale by the Trust of
the Pass-through Securities and its Common Securities, liquidation amount $1,000
per Common Security (the "Common Securities"), are to be invested in the Junior
Subordinated Debt Securities of the Company having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities and the
Common Securities (the "Junior Subordinated Debt Securities"). As an inducement
to the Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Trust and the Company agree with
you, (i) for your benefit and (ii) for the benefit of the holders from time to
time (each of the foregoing a "Holder" and together the "Holders") of the
Securities (as defined herein) or the Exchange Securities (as defined herein),
as follows:
<PAGE> 2
2
1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"ADDITIONAL DISTRIBUTIONS" has the meaning given
such term in Section 7(a) hereof.
"AFFILIATE" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person.
"BUSINESS DAY" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in the City of New York are
authorized or required by law or executive order to remain closed, or a day on
which the principal office of the Trustee is closed for business.
"CAPITAL SECURITIES" has the meaning set forth in the preamble
hereto.
"CLOSING DATE" has the meaning given such term in
the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SECURITIES" has the meaning set forth in the preamble
hereto.
"DECLARATION" means the Amended and Restated Declaration of
Trust relating to the Trust dated as of June 6, 1997, among the Company, as
Depositor, Janet A. Schwartz, David J. Lucido and Nickolitsa Hartofillis, as
Administrative Trustees, the Property Trustee and The Bank of New York
(Delaware), a Delaware corporation, as Delaware Trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"DISTRIBUTION EVENT" shall mean the distribution of Junior
Subordinated Debt Securities or Exchange Junior Subordinated Debt Securities, as
the case may be, to the holders of Capital Securities or Exchange Capital
Securities, as the case may be, as provided in the Declaration.
<PAGE> 3
3
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE CAPITAL SECURITIES" means securities of the Trust to
be issued under the Declaration and which are identical in all material respects
to the Capital Securities.
"EXCHANGE GUARANTEE" means the guarantee by the Company of the
Exchange Capital Securities, identical in all material respects to the
Guarantee.
"EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES" means debt
securities of the Company to be issued under the Junior Subordinated Indenture
and which are identical in all material respects to the Junior Subordinated Debt
Securities.
"EXCHANGE OFFER REGISTRATION PERIOD" means the one year period
following the issuance of the Exchange Capital Securities, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a registration
statement of the Trust and the Company on an appropriate form under the Act with
respect to the Registered Exchange Offer (and, if a Distribution Event shall not
have occurred prior to the effectiveness of such Exchange Offer Registration
Statement and the Company shall not have elected to include the Junior
Subordinated Debt Securities held by the Trust in the Registered Exchange Offer
pursuant to Section 2(g) hereof, with respect to the distribution of the Junior
Subordinated Debt Securities upon the occurrence of a Distribution Event), and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"EXCHANGE PASS-THROUGH SECURITIES" means the Exchange Capital
Securities together with the Exchange Guarantee.
"EXCHANGE SECURITIES" means (i) if a Distribution Event shall
not have occurred prior to the Registered Exchange Offer, (a) the Exchange
Pass-through Securities and (b) if the Company shall elect to include the Junior
Subordinated Debt Securities held by the Trust in the Registered Exchange Offer
pursuant to Section 2(g) hereof, the Exchange Junior Subordinated Debt
Securities or (ii) if a Distribution Event shall have occurred prior to the
<PAGE> 4
4
Registered Exchange Offer, the Exchange Junior Subordinated Debt Securities.
"EXCHANGING DEALER" means any Holder (which may include the
Purchaser) which is a broker-dealer electing to exchange Securities acquired for
its own account as a result of market-making activities or other trading
activities for Exchange Securities.
"FINAL MEMORANDUM" has the meaning set forth in the Purchase
Agreement.
"GUARANTEE" means the guarantee by the Company of the Capital
Securities and the Common Securities pursuant to the Guarantee Agreement dated
as of June 6, 1997 between the Company and the Guarantee Trustee.
"GUARANTEE TRUSTEE", "INDENTURE TRUSTEE" and "PROPERTY
TRUSTEE" each means The Bank of New York, a New York banking corporation.
"HOLDER" has the meaning set forth in the preamble hereto.
"INITIAL PLACEMENT" has the meaning set forth in the preamble
hereto.
"JUNIOR SUBORDINATED DEBT SECURITIES" has the meaning set
forth in the preamble hereto.
"JUNIOR SUBORDINATED INDENTURE" means the Junior Subordinated
Indenture relating to the Junior Subordinated Debt Securities and the Exchange
Junior Subordinated Debt Securities dated as of June 6, 1997 between the Company
and the Indenture Trustee.
"LETTER OF TRANSMITTAL" has the meaning given to such term in
Section 2(c) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the
aggregate liquidation amount or of the aggregate principal amount, as
applicable, of securities registered under a Registration Statement.
"MANAGING UNDERWRITERS" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"PASS-THROUGH SECURITIES" has the meaning set
forth in the preamble hereto.
"PROSPECTUS" means the prospectus included in any
Registration Statement (including a prospectus that
<PAGE> 5
5
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the Exchange Securities,
covered by such Registration Statement, and all amendments and supplements to
the Prospectus, including post-effective amendments.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"PURCHASER" has the meaning set forth in the preamble hereto.
"REGISTERED EXCHANGE OFFER" means the proposed offer to the
Holders to issue and deliver to such Holders a like liquidation amount or
principal amount, as the case may be, of the Exchange Securities, in exchange
for (i) if a Distribution Event shall not have occurred, (a) the Pass-Through
Securities and (b) if the Company shall elect to include the Junior Subordinated
Debt Securities held by the Trust in the Registered Exchange Offer pursuant to
Section 2(g) hereof, the Junior Subordinated Debt Securities or (ii) if a
Distribution Event shall have occurred, the Junior Subordinated Debt Securities.
"REGISTRATION DEFAULT" has the meaning given such term in
Section 7(a) hereof.
"REGISTRATION STATEMENT" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, and
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SECURITIES" means (i) if a Distribution Event shall not have
occurred, (a) the Pass-through Securities and (b) if the Company shall elect to
include the Junior Subordinated Debt Securities held by the Trust in the
Registered Exchange Offer pursuant to Section 2(g) hereof, the Junior
Subordinated Debt Securities or (ii) if a Distribution Event shall have
occurred, the Junior Subordinated Debt Securities.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning given such term in
Section 3(b) hereof.
<PAGE> 6
6
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of the Trust and the Company pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or the Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SPECIAL INTEREST" has the meaning given such term in Section
7(a) hereof.
"TRUST" has the meaning set forth in the preamble hereto.
"TRUSTEE" means the Guarantee Trustee, the Indenture Trustee
or the Property Trustee, as applicable.
"UNDERWRITER" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER; RESALES OF EXCHANGE SECURITIES
BY EXCHANGING DEALERS. (a) The Trust and the Company shall prepare and, not
later than 60 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement. The Trust and the Company shall use
their best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 150 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Trust and the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Trust or the Company
within the meaning of the Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements with any person to
participate in the distribution (within the meaning of the Act) of the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of at least two-thirds of the several
states of the United States.
<PAGE> 7
7
(c) In connection with the Registered Exchange
Offer, the Trust and the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal (a "Letter of Transmittal") and
related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the
Borough of Manhattan, the City of New York; and
(iv) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Trust and the Company shall:
(i) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Registered
Exchange Offer;
(ii) deliver to the Trustee for cancelation all
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of tendered Securities, Exchange Securities equal in
liquidation amount or principal amount, as the case may be, to the
Securities of such Holder so accepted for exchange therefor.
(e) The Purchaser and the Trust and the Company acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Trust and the Company shall:
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a
section
<PAGE> 8
8
setting forth details of the Registered Exchange Offer, and in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration Statement,
and include the information set forth in Annex D hereto in the Letter
of Transmittal delivered pursuant to the Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus
forming a part thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the Registered Exchange
Offer, as contemplated by Section 4(h) below.
(f) In the event that the Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of its initial unsold allotment,
at the request of the Purchaser, the Company and the Trust, as applicable, shall
issue and deliver to the Purchaser, in exchange for such Securities, Exchange
Securities equal in liquidation amount or principal amount, as the case may be,
to such Securities (provided that such Exchange Securities shall include legends
with respect to restrictions on transfer), and the Company shall, starting on
the date of the Exchange Offer Registration Statement and ending on the close of
business on the first anniversary following such date, make available as many
copies of the Prospectus relating to the Exchange Offer Registration Statement,
as amended or supplemented, as reasonably requested by the Purchaser. The Trust
and the Company shall seek to cause the CUSIP Service Bureau to issue the same
CUSIP number for such Exchange Securities as for Exchange Securities issued
pursuant to the Registered Exchange Offer. The Purchaser agrees to promptly
notify the Company in writing following the resale of their initial allotment of
Securities or Exchange Securities, as applicable.
(g) Notwithstanding anything in this Agreement to the
contrary, if a Distribution Event shall not have occurred prior to the
Registered Exchange Offer, the Company may offer to, and the Trust shall agree
to, exchange the Junior Subordinated Debt Securities held by the Trust for an
identical principal amount of Exchange Junior Subordinated Debt Securities as
part of the Registered Exchange Offer; PROVIDED, HOWEVER, that, until a
Distribution Event shall have occurred, such Exchange Junior Subordinated Debt
Securities shall include appropriate legends with respect to transfer
restrictions.
<PAGE> 9
9
3. SHELF REGISTRATION. If, (i) because of any change in law or
in currently prevailing interpretations thereof (including oral interpretations)
by the Commission's staff, the Trust and the Company determine upon advice of
their outside counsel that they are not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof, (ii) for any other reason
the Registered Exchange Offer is not consummated within 180 days of the Closing
Date, (iii) the Purchaser so requests with respect to Securities held by it
following consummation of the Registered Exchange Offer, or (iv) in the event
that the Purchaser participates in the Registered Exchange Offer or acquires
Exchange Securities pursuant to Section 2(f) hereof and the Purchaser does not
receive freely tradeable Exchange Securities in exchange for Securities
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that the Purchaser delivers a
Prospectus containing the information required by Items 507 and/or 508 of
Regulation S-K under the Act in connection with sales of Exchange Securities
acquired in exchange for such Securities shall result in such Exchange
Securities being not "freely tradeable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such Exchange Securities being not "freely tradeable"), the
following provisions shall apply:
(a) The Trust and the Company shall, as promptly as
practicable (but in no event more than 60 days after so required or requested
pursuant to this Section 3), file with the Commission and thereafter use their
best efforts to cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the Securities or the
Exchange Securities, as applicable, by the applicable Holders from time to time
in accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; PROVIDED, HOWEVER, that with respect
to Exchange Securities received by the Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Trust and the Company may,
if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of their obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
<PAGE> 10
10
(b) The Trust and the Company shall use their best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for a period of two
years from the Closing Date or such shorter period that will terminate when all
the Securities or Exchange Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period").
4. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to the Purchaser,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement and any Exchange Offer Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein and shall use their best efforts to
reflect in each such document, when so filed with the Commission, such
comments as you reasonably may propose.
(b) The Trust and the Company shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies
in all material respects with the Act and the rules and regulations
thereunder, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, 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 and
(iii) any Prospectus forming part of any Registration Statement, and
any amendment or supplement to such Prospectus, does not, during the
period when delivery thereof is required, include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements, in light of the circumstances under which they
were made, not misleading.
(c) (1) The Trust and the Company shall advise
the Purchaser and, in the case of a Shelf Registration
<PAGE> 11
11
Statement, the Holders of securities covered thereby, and, if requested
by you or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Trust and the Company shall advise the Purchaser and,
in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer which has provided in
writing to the Trust and the Company a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company or the Trust of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening, during the period when delivery of
a Prospectus is required, of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes
have been made).
(d) The Trust and the Company shall use their
best efforts to obtain the withdrawal of any order
<PAGE> 12
12
suspending the effectiveness of any Registration Statement at the
earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing,
all exhibits (including those incorporated by reference).
(f) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Holder of securities included
within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request;
and the Trust and the Company consent to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been
given pursuant to paragraph 4(c)(2) above by each of the selling
Holders in connection with the offering and sale of the securities
covered by the Prospectus or any amendment or supplement thereto during
the Shelf Registration Period.
(g) The Trust and the Company shall furnish to each Exchanging
Dealer which so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, any documents
incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including those incorporated
by reference).
(h) The Trust and the Company shall, during the Exchange Offer
Registration Period, deliver as promptly as practicable to each
Exchanging Dealer, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such Exchanging Dealer may
reasonably request for delivery by such Exchanging Dealer in connection
with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer; and the Trust and the Company consent to the
use of the Prospectus or any amendment or supplement thereto as to
which no notice has been given pursuant to paragraph 4(c)(2) above by
any such Exchanging Dealer, as aforesaid during the Exchange Offer
Registration Period.
<PAGE> 13
13
(i) Prior to the Registered Exchange Offer or any other
offering of securities pursuant to any Registration Statement, the
Trust and the Company shall, if required by applicable law, register or
qualify or cooperate with the Holders of securities included therein
and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Registration Statement;
PROVIDED, HOWEVER, that neither the Trust nor the Company will be
required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject
it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(j) Unless the applicable securities shall be in book-entry
only form, the Trust and the Company shall cooperate with the Holders
to facilitate the timely preparation and delivery of certificates
representing the securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of
securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraphs 4(c)(1)(ii) or 4(c)(2)(iii) above, the Trust and the Company
shall prepare as soon as practicable a post-effective amendment to any
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(l) The Trust and the Company shall use their best efforts to
cause The Depository Trust Company ("DTC") on the first business day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Pass-through Securities and/or
Junior Subordinated Debt Securities, as the case may be, any
designation indicating that such securities are "restricted
securities", which efforts shall include delivery to
<PAGE> 14
14
DTC of a letter executed by the Trust and the Company substantially in
the form of Annex E hereto and (ii) any other stop or restriction on
DTC's system with respect to such securities. In the event the Trust
and the Company are unable to cause DTC to take the actions described
in the immediately preceding sentence, the Company shall take such
actions as UBS Securities LLC may reasonably request to provide, as
soon as practicable, a CUSIP number for the Pass-through Securities
and/or Junior Subordinated Debt Securities, as the case may be,
registered under such Registration Statement and to cause such CUSIP
number to be assigned to such securities (or to the maximum aggregate
principal amount of such securities to which such number may be
assigned). Upon compliance with the foregoing requirements of this
Section 4(l), the Trust and the Company shall provide the Trustee with
printed certificates for such securities, in a form eligible for
deposit with DTC.
(m) The Trust and the Company shall use their best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to its security holders as soon as
practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section
11(a) of the Act.
(n) The Trust and the Company shall cause the Junior
Subordinated Indenture, the Declaration and the Guarantee to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Trust and the Company may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Trust and the Company such information regarding such
Holder and the distribution of such securities by such Holder as the
Trust and the Company may from time to time reasonably require for
inclusion in such Shelf Registration Statement.
(p) The Trust and the Company shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters and Majority Holders reasonably agree should be included
therein and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
<PAGE> 15
15
(q) In the case of any Shelf Registration Statement, the Trust
and the Company shall enter into such agreements (including
underwriting agreements) and take all other appropriate actions in
order to expedite or facilitate the registration or the disposition of
the Securities or the Exchange Securities, as the case may be, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other
provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the Trust
and the Company shall (i) make reasonably available for inspection by
the Holders of securities to be registered thereunder, any underwriter
participating in any distribution pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by such
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Trust or
the Company and its subsidiaries as shall reasonably be required in
connection with the discharge of their due diligence obligations; (ii)
cause the Company's officers, directors and employees and any relevant
trustee to supply at the Company's expense all relevant information
reasonably requested by such Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; PROVIDED,
HOWEVER, that, in the case of clauses (i) and (ii) above, any
information that is designated in writing by the Trust or the Company,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Holders and any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality; and
PROVIDED FURTHER, HOWEVER, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders and
the other parties entitled thereto by one counsel designated by and on
behalf of such Holders and other parties; (iii) make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in primary
underwritten offerings and covering such
<PAGE> 16
16
matters as are customarily covered in representations and warranties
requested in primary underwritten offerings; (iv) obtain opinions of
counsel to the Trust and the Company and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the underwriters, if any, covering such matters and
with such exceptions as are customarily covered or taken in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters (it being agreed
that the matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective date
of the Registration Statement or most recent post-effective amendment
thereto, as the case may be, a statement by such counsel regarding the
absence from such Registration Statement and the Prospectus included
therein, as then amended or supplemented, including the documents
incorporated by reference therein, of an untrue statement of a material
fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading); (v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by the Majority Holders and
the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Trust and the Company. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 4(r) shall be
performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) In the case of any Exchange Offer Registration Statement,
if requested by the Purchaser, the Trust and the Company shall (i)
make reasonably
<PAGE> 17
17
available for inspection by the Purchaser, and any attorney, accountant
or other agent retained by the Purchaser, all relevant financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries or the Trust as shall reasonably be
required in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and employees
and any relevant trustee to supply at the Company's expense all
relevant information reasonably requested by the Purchaser or any such
attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;
PROVIDED, HOWEVER, that, in the case of clauses (i) and (ii) above, any
information that is designated in writing by the Company or the Trust,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Purchaser and any such
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Purchaser, in
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering such
matters as are customarily covered in representations and warranties
requested in primary underwritten offerings; (iv) obtain opinions of
counsel to the Trust and the Company and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Purchaser and its counsel) addressed to the
Purchaser, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by the Purchaser or its counsel (it being agreed
that the matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective date
of the Registration Statement or most recent post-effective amendment
thereto, as the case may be, a statement by such counsel regarding the
absence from such Registration Statement and the Prospectus included
therein, as then amended or supplemented, including the documents
incorporated by reference therein, of an untrue statement of a material
fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading); (v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified
<PAGE> 18
18
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to the Purchaser, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings, or if requested by the
Purchaser or its counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards No.
35, covering matters requested by the Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Purchaser or its counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 4(s) shall be performed, if requested by the Purchaser, at
the closing of the Registered Exchange Offer and the effective date of
any post-effective amendment to the Exchange Offer Registration
Statement.
5. REGISTRATION EXPENSES. The Trust and the Company shall bear
all expenses incurred in connection with the performance of their obligations
under Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders of securities registered thereunder for
the reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for the Holders in connection therewith, and,
in the case of any Exchange Offer Registration Statement, will reimburse the
Purchaser for the reasonable fees and disbursements of counsel acting in
connection therewith.
6. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with
any Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including the Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
<PAGE> 19
19
contained in the Registration Statement as originally filed or in any amendment
thereof, or in any preliminary Prospectus or Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that (i) the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such 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 Trust and the Company by or on behalf of any such Holder specifically for
inclusion therein and (ii) such indemnity with respect to any untrue statement
or omission in any preliminary Prospectus relating to a Shelf Registration
Statement shall not inure to the benefit of any Holder from whom the person
asserting any such loss, claim, damage or liability purchased the securities
that are the subject thereof, to the extent that any such loss, claim, damage or
liability of such Holder occurs under the circumstances where it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (w) the Trust and the Company had previously furnished copies of
the final Prospectus to such Holder, (x) delivery of the final Prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the preliminary Prospectus was
completely corrected in the final Prospectus and (z) there was not sent or given
to such person, at or prior to the written confirmation of the sale of such
securities to such person, a copy of the final Prospectus. This indemnity
agreement will be in addition to any liability which the Trust and the Company
may otherwise have.
The Company also agrees to indemnify or contribute to Losses
(as defined below) of, as provided in Section 6(d), any underwriters of
securities registered under a Shelf Registration Statement, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Purchaser and the selling
Holders provided in this Section 6(a) and shall, if requested by any
underwriter, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including the Purchaser and, with
<PAGE> 20
20
respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless (i) the Trust
and the Company, (ii) each of the Company's directors, (iii) each of the
Company's officers or any Trustee who signs such Registration Statement and (iv)
each person who controls the Company or the Trust within the meaning of either
the Act or the Exchange Act to the same extent as the foregoing indemnity from
the Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Trust or the Company by or on behalf of
such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above or paragraph
(d) below unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than obligations
provided under this Section 6. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel) (it
being understood that the indemnifying party shall not be liable for the fees,
costs and expenses of more than one separate counsel (and, to the extent
necessary, one local counsel in each jurisdiction)), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel (and
local counsel) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the
<PAGE> 21
21
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; PROVIDED, HOWEVER, that in
no case shall the Purchaser be responsible, in the aggregate, for any amount in
excess of the compensation received by it per Security, or in the case of an
Exchange Security, per Security which was exchangeable into such Exchange
Security, as set forth in Section 2 of the Purchase Agreement, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the securities purchased by such underwriter under
the Registration Statement which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements
<PAGE> 22
22
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Trust and the Company shall
be deemed to be equal to the total net proceeds ($498,910,000) from the Initial
Placement (after compensation paid to the Purchaser and before deducting
expenses). Benefits received by the Purchaser shall be deemed to be equal to the
total compensation as set forth in Section 2 of the Purchase Agreement, and
benefits received by any other Holders shall be deemed to be equal to the
excess, if any, of the value to such Holder of receiving Securities or Exchange
Securities, as applicable, registered under the Act over the value to such
Holder of holding Securities not registered under the Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus forming a part
of the Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The parties agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company or the Trust within the meaning of either the
Act or the Exchange Act, each officer of the Company and each trustee of the
Trust who shall have signed the Registration Statement and each director of the
Company and each trustee of the Trust shall have the same rights to contribution
as the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company or the Trust or any of the officers, directors, trustees or
controlling persons referred to in Section 6 hereof, and will survive the sale
by a Holder of securities covered by a Registration Statement.
7. SPECIAL INTEREST AND ADDITIONAL DISTRIBUTIONS
UNDER CERTAIN CIRCUMSTANCES. (a) Special interest (the
<PAGE> 23
23
"Special Interest") shall become payable in respect of the Junior Subordinated
Debt Securities (including in respect of amounts accruing during any Extension
Period (as defined in the Junior Subordinated Indenture)), and corresponding
additional distributions (the "Additional Distributions") shall become payable
on the Capital Securities as follows if any of the following events occur (each
such event in clauses (i) through (iv) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 60th day following the Closing Date;
(ii) if the Exchange Offer Registration Statement is not
declared effective on or prior to the 150th day following the Closing Date;
(iii) if the Registered Exchange Offer is not consummated or
the Shelf Registration Statement is not declared effective on or prior to the
180th day following the Closing Date; or
(iv) if, after the 180th day following the Closing Date, and
after the Shelf Registration Statement is declared effective, (A) such Shelf
Registration Statement ceases to be effective prior to the end of the Shelf
Registration Period (except as permitted in paragraph (b) of this Section 7); or
(B) such Shelf Registration Statement or the related Prospectus ceases to be
useable in connection with resales of Securities or Exchange Securities, as the
case may be, covered by such Shelf Registration Statement prior to the end of
the Shelf Registration Period (except as permitted in paragraph (b) of this
Section 7) because either (1) any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading or (2) it shall be necessary to amend such Shelf
Registration Statement, or supplement the related Prospectus, to comply with the
Securities Act or the Exchange Act or the respective rules thereunder.
Special Interest and Additional Distributions shall accrue on
the Junior Subordinated Debt Securities and the Capital Securities,
respectively, over and above the interest rate or distribution rate, as the case
may be, set forth in the title to the Junior Subordinated Debt Securities and
the Capital Securities, respectively, following the occurrence of each
Registration Default set forth in clauses (i), (ii), (iii) and (iv) above from
and including the next day following each such Registration Default, in each
case at a rate equal to 0.25% per annum (to
<PAGE> 24
24
be increased, in the case of clause (iv) above, from and including the next day,
to 0.50% per annum if the Shelf Registration Statement ceases to be effective or
useable prior to the end of the Shelf Registration Period for 60 days or more);
PROVIDED, HOWEVER, that the aggregate amount of Special Interest and Additional
Distributions, respectively, payable pursuant to this Section 7(a) with respect
to Registration Defaults under clauses (i), (ii) and (iii) above will in no
event exceed 0.50% per annum. The Special Interest and the Additional
Distributions attributable to each Registration Default set forth in clauses
(i), (ii) and (iii) above shall cease to accrue from the date such Registration
Default is cured, and, with respect to the Registration Default set forth in
clause (iv) above, shall cease to accrue upon the earliest of (A) the date that
the Shelf Registration Statement is again deemed effective, (B) the date that is
the second anniversary of the Closing Date and (C) the date as of which all of
the securities covered by the Shelf Registration Statement are sold thereunder
or may, in the judgment of the Trust and the Company based upon advice of their
outside counsel, be sold without registration under the Act.
(b) A Registration Default referred to in Section 7(a)(iv)
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Trust or the Company that would need
to be described in such Registration Statement or the related Prospectus and
(ii) in the case of clause (y), the Trust and the Company are proceeding
promptly and in good faith to amend or supplement such Registration Statement
and related Prospectus to describe such events; PROVIDED, HOWEVER, that in any
case, if such Registration Default occurs for a continuous period in excess of
45 days, Special Interest and Additional Distributions shall be payable in
accordance with the above paragraph from the first day of such 45-day period
until the date on which such Registration Default is cured.
(c) Any amounts of Special Interest and Additional
Distributions due pursuant to the foregoing paragraphs will be payable in cash
in arrears on June 1 and December 1 each year to the Holders of record at the
close of business on the preceding May 15th and November 15th.
<PAGE> 25
25
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Trust and the
Company has not, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to the Securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Holders of at least a majority of the then
outstanding aggregate liquidation amount or principal amount, as the case may
be, of Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of Exchange Securities); PROVIDED, HOWEVER,
that, with respect to any matter that affects the rights of the Purchaser
hereunder, the Trust and the Company shall obtain the written consent of the
Purchaser. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of securities being sold rather than registered
under such Registration Statement.
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 8(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy
in like manner to UBS Securities LLC;
(2) if to you, initially at the address set
forth in the Purchase Agreement; and
(3) if to the Company or the Trust, initially
at the address set forth in the Purchase
Agreement.
<PAGE> 26
26
All such notices and communications shall be deemed to have
been duly given when received.
The Purchaser, the Trust or the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or the Trust thereto, subsequent Holders of Securities and/or
Exchange Securities. The Trust and the Company hereby agree to extend the
benefits of this Agreement to any Holder of Securities and/or Exchange
Securities and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
<PAGE> 27
27
(i) SECURITIES HELD BY THE TRUST OR THE COMPANY, ETC. Whenever
the consent or approval of Holders of a specified percentage of liquidation
amount or principal amount, as the case may be, of Securities or Exchange
Securities is required hereunder, Securities or Exchange Securities, as
applicable, held by the Trust or the Company or their respective Affiliates
(other than subsequent Holders of Securities or Exchange Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets forth the
agreement among the Trust, the Company and you.
Very truly yours,
NATIONAL CITY CAPITAL TRUST I,
by /s/ David J. Lucido
-----------------------------
Name: DAVID J. LUCIDO
Title: Administrative Trustee
by /s/ Nikolitsa Hartofillis
-----------------------------
Name: NIKOLITSA HARTOFILLIS
Title: Administrative Trustee
NATIONAL CITY CORPORATION,
by /s/ Jeffrey D. Kelly
-----------------------------
Name: JEFFREY D. KELLY
Title: Executive Vice President
and Senior Investment
Officer
Accepted as of the date hereof
UBS SECURITIES LLC,
by /s/ Matthew S. Grayson
-------------------------------
Name: MATTHEW S. GRAYSON
Title: Managing Director
<PAGE> 28
ANNEX A
ANNEX A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Trust and the Company have agreed
that, ending on the close of business on the first anniversary following the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
<PAGE> 29
ANNEX B
ANNEX B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
<PAGE> 30
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Trust and the Company have agreed that, starting on the
Expiration Date and ending on the close of business on the first anniversary
following the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until , 199 , all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any proceeds from
any sale of Exchange Securities by broker-dealers. Exchange Securities received
by broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the
Exchange Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Trust
and the Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that
<PAGE> 31
2
requests such documents in the Letter of Transmittal. The Trust and the Company
have agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
<PAGE> 32
ANNEX D
RIDER A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
-------------------------------------------------
Address:
---------------------------------------------
RIDER B
-------
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a broker-dealer that
will receive Exchange Securities for its own account in exchange for Securities,
it represents that the Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
<PAGE> 33
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
National City Capital Trust I
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004
Re: Reset Asset Capital Securities (the
"Securities") of National City Capital
Trust I, fully and unconditionally guaranteed
by National City Corporation
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933 with regard to all of the Securities referenced above. Accordingly,
there is no longer any restriction as to whom such Securities may be sold and
any restrictions on the CUSIP designation are no longer appropriate and may be
removed. We understand that upon receipt of this letter, DTC will remove any
stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
NATIONAL CITY CAPITAL TRUST I,
by
------------------------------
Authorized Officer
NATIONAL CITY CORPORATION,
by
------------------------------
Authorized Officer
<PAGE> 1
Exhibit 5.2
July 22, 1997
National City Corporation
1900 E. Ninth Street
Cleveland, OH 44114
Re: National City Capital Trust I
Reset Asset Capital Securities
------------------------------
Dear Ladies and Gentlemen:
We have acted as special Delaware counsel for National City Capital
Trust I, a Delaware statutory business trust (the "Trust") in connection with
the matters set forth herein and that certain Amended and Restated Declaration
of Trust (the "Declaration") dated as of June 6, 1997, by and among National
City Corporation, as Depositor, The Bank of New York (Delaware), as Delaware
Trustee, The Bank of New York, as Property Trustee, and the Administrative
Trustees named therein. Initially capitalized terms used herein and not
otherwise defined are used herein as defined in the Declaration.
For purposes of giving the opinions hereinafter set forth, we have
examined only the following documents and have conducted no independent factual
investigations of our own:
1. The Certificate of Trust for the Trust, dated as of May 29, 1997
(the "Certificate"), as filed in the Office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 29, 1997;
2. The original declaration of trust of the Trust, dated as of May
29, 1997 by and among National City Corporation, as Sponsor, The Bank of New
York (Delaware), as
<PAGE> 2
National City Corporation
July 22, 1997
Page 2
Delaware Trustee and the Administrative Trustee named therein (the "Original
Declaration");
3. The Declaration;
4. A Certificate of Good Standing for the Trust, dated as of July 22,
1997, obtained from the Secretary of State; and
5. The Registration Statement on Form S-4 (the "Registration
Statement"), including a prospectus with respect to the Trust (the
"Prospectus"), relating to, among other things, an Exchange Offer (the
"Exchange Offer") involving the issuance by the Trust of the Reset Asset
Capital Securities of the Trust representing preferred, undivided beneficial
interests in the assets of the Trust (each, a "New Capital Security" and
collectively, the "New Capital Securities"), to be offered in exchange for the
presently outstanding Reset Asset Capital Securities of the Trust (the "Old
Capital Securities"), filed by the Depositor and the Trust with the Securities
and Exchange Commission.
As to certain facts material to the opinions expressed herein, we
have relied upon the representations and warranties contained in the documents
examined by us all of which we have assumed to be true, complete and accurate
in all material respects. The documents referred to in paragraphs 1, 2, 3 and 5
above are hereinafter collectively referred to as the "Agreements."
Based upon the foregoing, and upon an examination of such questions
of law of the State of Delaware as we have considered necessary or appropriate,
and subject to the assumptions, qualifications, limitations and exceptions set
forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The New Capital Securities, upon issuance pursuant to the Exchange
Offer, will represent valid, and, subject to the qualifications set forth in
number 3 below, fully paid and non-assessable undivided beneficial interests in
the assets of the Trust.
3. The Holders of New Capital Securities, as beneficial owners of New
Capital Securities of the Trust, will
<PAGE> 3
National City Corporation
July 22, 1997
Page 3
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware, except that the Holders of New Capital
Securities may be obligated to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from transfers or
exchanges of certificates representing New Capital Securities and the issuance
of replacement certificates representing New Capital Securities, and (b) provide
security or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the Declaration.
All of the foregoing opinions contained herein are subject to the
following assumptions, qualifications, limitations and exceptions:
a. The foregoing opinions are limited to the laws of the State of
Delaware presently in effect, excluding the securities laws thereof. We have
not considered and express no opinion on the laws of any other jurisdiction,
including, without limitation, federal laws and rules and regulations relating
thereto.
b. We have assumed the due execution and delivery by each party
listed as a party to each document examined by us. We have assumed further the
due authorization by each party thereto (exclusive of the Trust) of each
document examined by us, and that each of such parties (exclusive of the Trust)
has the full corporate, or trust or banking, power, authority, and legal right
to execute, deliver and perform each such document. We also have assumed that
each of the parties to each of the Agreements (exclusive of the Trust and the
Administrative Trustees) is a corporation, bank, national banking association
or trust company, validly existing and in good standing under the laws of their
respective jurisdictions of organization and that the Agreements to which they
are a party do not result in the breach of the terms of, and do not contravene
their respective constituent documents, any contractual restriction binding on
them or any law, rule or regulation applicable to them. In addition, we have
assumed the legal capacity of any natural persons who are parties to any of the
documents examined by us.
c. We have assumed that all signatures on documents examined by
us are genuine, that all documents submitted to use as originals are authentic
and that all documents submitted to us as copies conform with the originals.
<PAGE> 4
National City Corporation
July 22, 1997
Page 4
d. We have assumed that the Original Declaration and the
Declaration collectively, constitute the entire agreement among each of the
respective parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation, dissolution and winding up
of the Trust and that the Declaration and the Certificate are in full force and
effect.
e. We have assumed that no event set forth in Article IX of the
Declaration has occurred.
f. We have assumed that the New Capital Securities will be issued
and exchanged in accordance with the Declaration and the Prospectus. We have
further assumed the receipt of each Person to whom a New Capital Security is to
be issued by the Trust of a certificate for such New Capital Security and the
exchange by it of an equivalent liquidation amount of Old Capital Securities in
accordance with the Declaration and the Prospectus.
g. We note that we have not participated in the preparation, and
do not assume responsibility for the contents, of the Registration Statement or
the Prospectus.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Matters" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ POTTER ANDERSON & CORROON
<PAGE> 1
Exhibit 8
July 22, 1997
National City Capital Trust I
-----------------------------
$500,000,000 Reset Asset Capital Securities
-------------------------------------------
Ladies and Gentlemen:
We have acted as special tax counsel to National City
Corporation, a Delaware corporation (the "Company"), and National City Capital
Trust I, a statutory business trust formed under the laws of the State of
Delaware (the "Trust"), in connection with the Registration Statement on Form
S-4 (the "Registration Statement") of the Trust, filed on July 18, 1997, with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"). The Registration Statement relates to
$500,000,000 aggregate Liquidation Amount of the Trust's Reset Asset Capital
Securities (the "New Capital Securities") issued in exchange for a like
Liquidation Amount of the Company's outstanding Reset Asset Capital Securities
(the "Old Capital Securities"), pursuant to a Prospectus (the "Prospectus")
contained in the Registration Statement. Capitalized terms used herein and not
otherwise defined herein have the meanings ascribed thereto in the Registration
Statement, the Amended and Restated Declaration of Trust dated as of June 6,
1997, or the Purchase Agreement dated May 29, 1997.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for the purpose of this opinion.
Based upon the foregoing, we are of opinion that the
statements set forth under the heading "Certain United States Federal Income Tax
Consequences" in the Prospectus
<PAGE> 2
2
accurately describe the material United States Federal income tax consequences
to an Initial Purchaser of Old Capital Securities that exchanges Old Capital
Securities for New Capital Securities and (in so far as it purports to do so)
accurately represents our opinion.
We express no opinion as to any laws other than the Federal
income tax laws of the United States of America.
We know that we may be referred to in the Prospectus in the
discussion captioned "Certain United States Federal Income Tax Consequences",
and we hereby consent to such use of our name in the Registration Statement, and
in the Prospectus which constitutes a part thereof, as well as to the use of
this letter as an exhibit to the Registration Statement. In giving this consent,
however, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ CRAVATH, SWAINE & MOORE
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
National City Capital Trust I
c/o National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
<PAGE> 1
EXHIBIT 12
NATIONAL CITY CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE PERIODS INDICATED
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED YEARS ENDED DECEMBER 31,
MARCH 31, ----------------------------------------------------------
1997 1996 1995 1994 1993 1992
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Net income 196,142 736,630 591,460 598,467 616,817 407,426
Income tax expense 94,659 321,814 253,685 260,855 234,636 165,139
Cumulative effect of
accounting changes, net -- -- -- -- (60,000) --
------- --------- --------- --------- --------- ---------
Pre-tax income 290,801 1,058,444 845,145 859,322 791,453 572,565
======= ========= ========= ========= ========= =========
Fixed charges:
Interest on indebtedness (a) 127,592 496,670 525,988 326,277 238,171 227,807
Interest portion of rental expense 5,251 19,705 18,595 17,207 18,417 25,557
------- --------- --------- --------- --------- ---------
Fixed charges excluding interest on deposits 132,843 516,375 544,583 343,484 256,588 253,364
Interest on deposits 299,652 1,216,089 1,249,698 910,737 887,426 1,153,053
------- --------- --------- --------- --------- ---------
Fixed charges including interest on deposits 432,495 1,732,464 1,794,281 1,254,221 1,144,014 1,406,417
Ratio of earnings to fixed charges:
Excluding interest on deposits 3.19 3.05 2.55 3.50 4.08 3.26
Including interest on deposits 1.67 1.61 1.47 1.69 1.69 1.41
</TABLE>
(a) Interest expense includes amortization of debt expense and discount or
premium relating to any indebtedness.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Independent
Auditors" in the Registration Statement (Form S-4) and related Prospectus of
National City Corporation and National City Capital Trust I for the offer to
exchange $500,000,000 of its Reset Asset Capital Securities for any and all of
the outstanding Reset Asset Capital Securities of National City Capital Trust I
fully and unconditionally guaranteed, to the extent described in the Form S-4,
by National City Corporation, and to the incorporation by reference therein of
our report dated January 22, 1997, with respect to the consolidated financial
statements of National City Corporation included in the Annual Report on Form
10-K for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Cleveland, Ohio
July 21, 1997
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-4 related to the Prospectus of National City Corporation and National
City Capital Trust I for the offer to exchange $500,000,000 of its Reset Asset
Capital Securities for any and all of the outstanding Reset Asset Capital
Securities of National City Capital Trust I, of our report dated January 17,
1996, on our audits of the consolidated financial statements and financial
statement schedules of Integra Financial Corporation and subsidiaries as of
December 31, 1995, and for the years ended December 31, 1995 and 1994. We also
consent to the reference to our firm as "Experts."
COOPERS & LYBRAND LLP
Pittsburgh, Pennsylvania
July 21, 1997
<PAGE> 1
Exhibit 24
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 18th day of July, 1997.
/s/ Charles H. Bowman Director
- ---------------------------
Charles H. Bowman
<PAGE> 2
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 18th day of July, 1997.
/s/ John G. Breen Director
- -----------------------
John G. Breen
<PAGE> 3
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 21st day of July, 1997.
/s/ Duane E. Collins Director
- --------------------------
Duane E. Collins
<PAGE> 4
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 21st day of July, 1997.
/s/ David A. Daberko Chairman of the Board and Chief
- -------------------------- Executive Officer (Principal
David A. Daberko Executive Officer)
<PAGE> 5
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 18th day of July, 1997.
/s/ Daniel E. Evans Director
- -------------------------
Daniel E. Evans
<PAGE> 6
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 21st day of July, 1997.
/s/ Otto N. Frenzel III Director
- -----------------------------
Otto N. Frenzel III
<PAGE> 7
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 18th day of July, 1997.
/s/ W. Bruce Lunsford Director
- ---------------------------
W. Bruce Lunsford
<PAGE> 8
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 18th day of July, 1997.
/s/ Robert A. Paul Director
- ------------------------
Robert A. Paul
<PAGE> 9
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 19th day of July, 1997.
/s/ William R. Robertson Director and President
- ------------------------------
William R. Robertson
<PAGE> 10
DIRECTORS AND OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-4
POWER OF ATTORNEY
The undersigned Directors and Officers of National City Corporation, a
Delaware corporation (the "Corporation"), hereby constitute and appoint David L.
Zoeller, Carlton E. Langer and Thomas A. Richlovsky, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
us and in our names, in the capacities indicated below, under the Securities Act
of 1933, as amended, a Registration Statement on Form S-4 relating to the
registration of the Junior Subordinated Debt Securities of the Corporation and
the Reset Asset Capital Securities of National City Capital Trust 1, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, as fully to all intents and purposes as we could do if
personally present, hereby ratifying and approving the acts of said attorneys,
and any of them, and any such substitute.
EXECUTED this 21st day of July, 1997.
/s/ Stephen A. Stitle Director
- ---------------------------
Stephen A. Stitle
<PAGE> 1
Exhibit 25.1
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO RULE
901(d) OF REGULATIONS S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------
NATIONAL CITY CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 34-1111088
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
(Address of principal executive offices) (Zip code)
---------------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
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.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, 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
State of New York, on the 17th day of July, 1997.
THE BANK OF NEW YORK
By:/S/ WALTER N. GITLIN
---------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
-4-
<PAGE> 5
------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1997, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ...................................... $ 8,249,820
Interest-bearing balances .............................. 1,031,026
Securities:
Held-to-maturity securities ............................ 1,118,463
Available-for-sale securities .......................... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell ........................ 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve .......................429
Loans and leases, net of unearned
income, allowance, and reserve ....................... 32,260,771
Assets held in trading accounts .......................... 1,715,214
Premises and fixed assets (including
capitalized leases) .................................... 684,704
Other real estate owned .................................. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .............................................. 195,761
Customers' liability to this bank on
acceptances outstanding ................................ 1,152,899
Intangible assets ........................................ 683,503
Other assets ............................................. 1,526,113
------------
Total assets ............................................. $ 54,746,131
============
LIABILITIES
Deposits:
In domestic offices .................................... $ 25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ....................... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase .................... 2,093,286
Demand notes issued to the U.S. ..........................
Treasury ............................................... 239,354
Trading liabilities ...................................... 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .............................................. 2,075,092
With remaining maturity of more than
one year ............................................. 20,679
Bank's liability on acceptances exe-
cuted and outstanding .................................. 1,160,012
Subordinated notes and debentures ........................ 1,014,400
Other liabilities ........................................ 1,840,245
------------
Total liabilities ........................................ 50,560,708
------------
EQUITY CAPITAL
Common stock ............................................. 942,284
Surplus .................................................. 731,319
Undivided profits and capital
reserves ............................................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ............................................. (19,449)
Cumulative foreign currency transla-
tion adjustments ....................................... (13,034)
------------
Total equity capital ..................................... 4,185,423
------------
Total liabilities and equity
capital ................................................ $ 54,746,131
============
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and 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
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
Alan R. Griffith |
J. Carter Bacot |
Thomas A. Renyi | Directors
-
<PAGE> 1
Exhibit 25.2
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO RULE
901(d) OF REGULATIONS S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
NATIONAL CITY CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware (To Come)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
(Address of principal executive offices) (Zip code)
---------------------------
Reset Asset Capital Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
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.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, 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
State of New York, on the 17th day of July, 1997.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
-------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
-4-
<PAGE> 5
------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1997, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ...................................... $ 8,249,820
Interest-bearing balances .............................. 1,031,026
Securities:
Held-to-maturity securities ............................ 1,118,463
Available-for-sale securities .......................... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell ........................ 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve .......................429
Loans and leases, net of unearned
income, allowance, and reserve ....................... 32,260,771
Assets held in trading accounts .......................... 1,715,214
Premises and fixed assets (including
capitalized leases) .................................... 684,704
Other real estate owned .................................. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .............................................. 195,761
Customers' liability to this bank on
acceptances outstanding ................................ 1,152,899
Intangible assets ........................................ 683,503
Other assets ............................................. 1,526,113
------------
Total assets ............................................. $ 54,746,131
============
LIABILITIES
Deposits:
In domestic offices .................................... $ 25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ....................... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase .................... 2,093,286
Demand notes issued to the U.S. ..........................
Treasury ............................................... 239,354
Trading liabilities ...................................... 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .............................................. 2,075,092
With remaining maturity of more than
one year ............................................. 20,679
Bank's liability on acceptances exe-
cuted and outstanding .................................. 1,160,012
Subordinated notes and debentures ........................ 1,014,400
Other liabilities ........................................ 1,840,245
------------
Total liabilities ........................................ 50,560,708
------------
EQUITY CAPITAL
Common stock ............................................. 942,284
Surplus .................................................. 731,319
Undivided profits and capital
reserves ............................................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ............................................. (19,449)
Cumulative foreign currency transla-
tion adjustments ....................................... (13,034)
------------
Total equity capital ..................................... 4,185,423
------------
Total liabilities and equity
capital ................................................ $ 54,746,131
============
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and 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
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
Alan R. Griffith |
J. Carter Bacot |
Thomas A. Renyi | Directors
-
<PAGE> 1
Exhibit 25.3
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO RULE
901(d) OR REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
NATIONAL CITY CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 34-1111088
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
(Address of principal executive offices) (Zip code)
---------------------------
Guarantee of Reset Asset Capital Securities of
National City Capital Trust I
(Title of the indenture securities)
================================================================================
<PAGE> 2
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.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, 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
State of New York, on the 17th day of July, 1997.
THE BANK OF NEW YORK
By:/S/ WALTER N. GITLIN
------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
-4-
<PAGE> 5
------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1997, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ...................................... $ 8,249,820
Interest-bearing balances .............................. 1,031,026
Securities:
Held-to-maturity securities ............................ 1,118,463
Available-for-sale securities .......................... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell ........................ 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ............ 633,877
LESS: Allocated transfer risk
reserve ................. 429
Loans and leases, net of unearned
income, allowance, and reserve ....................... 32,260,771
Assets held in trading accounts .......................... 1,715,214
Premises and fixed assets (including
capitalized leases) .................................... 684,704
Other real estate owned .................................. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .............................................. 195,761
Customers' liability to this bank on
acceptances outstanding ................................ 1,152,899
Intangible assets ........................................ 683,503
Other assets ............................................. 1,526,113
------------
Total assets ............................................. $ 54,746,131
============
LIABILITIES
Deposits:
In domestic offices .................................... $ 25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ....................... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase .................... 2,093,286
Demand notes issued to the U.S.
Treasury ............................................... 239,354
Trading liabilities ...................................... 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .............................................. 2,075,092
With remaining maturity of more than
one year ............................................. 20,679
Bank's liability on acceptances exe-
cuted and outstanding .................................. 1,160,012
Subordinated notes and debentures ........................ 1,014,400
Other liabilities ........................................ 1,840,245
------------
Total liabilities ........................................ 50,560,708
------------
EQUITY CAPITAL
Common stock ............................................. 942,284
Surplus .................................................. 731,319
Undivided profits and capital
reserves ............................................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ............................................. (19,449)
Cumulative foreign currency transla-
tion adjustments ....................................... (13,034)
------------
Total equity capital ..................................... 4,185,423
------------
Total liabilities and equity
capital ................................................ $ 54,746,131
============
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and 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
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
Alan R. Griffith |
J. Carter Bacot |
Thomas A. Renyi | Directors
-
<PAGE> 1
Exhibit 99.1
Letter of Transmittal
NATIONAL CITY CAPITAL TRUST I
OFFER TO EXCHANGE ITS
RESET ASSET CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ITS OUTSTANDING
RESET ASSET CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED _____________, 1997
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON _______________, 1997, UNLESS THE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
BY REGISTERED OR CERTIFIED MAIL:
The Bank of New York
101 Barclay Street - 7E
New York, New York 10286
Attention: Enrique Lopez
Reorganization Section
BY HAND OR OVERNIGHT DELIVERY:
The Bank of New York
101 Barclay Street
Corporate Trust Services Window
Ground Level
New York, New York 10286
Attention: Enrique Lopez
Reorganization Section
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(212) 815-2742
FACSIMILE TRANSMISSIONS:
(212) 815-6339
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID
DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the
same meaning given them in the Prospectus (as defined below). As used herein,
the term "holder" means a holder of Old Capital Securities (as defined below),
including any participant ("DTC Participant") in the book-entry transfer
facility system of The Depository Trust Company ("DTC"), whose name appears on a
security position listing as the owner of the Old Capital Securities. As used
herein, the term "Certificates" means physical certificates representing Old
Capital Securities.
To participate in the Exchange Offer (as defined below),
holders must tender by (a) book-entry transfer pursuant to the procedures set
forth in the Prospectus under "The Exchange Offer -- Procedures for Tendering
Old Capital Securities" or (b) forwarding Certificates herewith. Holders who are
DTC Participants tendering by book-entry transfer must such tender through the
Automated Tender Offer Program ("ATOP") of DTC. A holder using ATOP should
transmit its acceptance to DTC on or prior to the Expiration Date (as defined in
the Prospectus). DTC will verify such acceptance, execute a book-entry
<PAGE> 2
transfer of the tendered Old Capital Securities into the account of The Bank of
New York (the "Exchange Agent") at DTC and then send to the Exchange Agent a
book-entry confirmation (as defined below), including an Agent's Message (as
defined below) confirming that DTC has received an express acknowledgment from
such holder that such holder has received and agrees to be bound by this Letter
of Transmittal and that the Issuer (as defined below) and the Corporation (as
defined below) may enforce this Letter of Transmittal against such holder. The
book-entry confirmation must be received by the Exchange Agent in order for the
tender relating thereto to be effective. Book-entry transfer to DTC in
accordance with DTC's procedures does not constitute delivery of the book-entry
confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, as well
as this Letter of Transmittal (or facsimile thereof), properly completed and
duly executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective.
Holders of Old Capital Securities whose Certificates for such
Old Capital Securities are not immediately available or who cannot deliver their
Certificates and all other required documents to the Exchange Agent on or prior
to the Expiration Date or who cannot complete the procedures for book-entry
transfer on or prior to the Expiration Date, must tender their Old Capital
Securities according to the guaranteed delivery procedures set forth in "The
Exchange Offer -- Procedures for Tendering Old Capital Securities" in the
Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO
THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- --------------------------------------------------------------------------------------------------------------------------------
LIQUIDATION NUMBER OF
LIQUIDATION AMOUNT OF OLD BENEFICIAL
NAME AND AMOUNT OF OLD CAPITAL HOLDERS FOR
ADDRESS OF CAPITAL SECURITIES WHICH OLD
REGISTERED SECURITIES TENDERED (IF CAPITAL
HOLDER (PLEASE CERTIFICATE TENDERED (IF ALL LESS THAN ALL SECURITIES ARE
FILL IN IF BLANK) NUMBERS* ARE TENDERED) ARE TENDERED)** HELD
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
$ $
- --------------------------------------------------------------------------------------------------------------------------------
$ $
- --------------------------------------------------------------------------------------------------------------------------------
$ $
- --------------------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT
TENDERED $ $
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in the Liquidation Amount of
$100,000 and integral multiples of $1,000 in excess thereof, provided
that if fewer than all of the Old Capital Securities of a holder are
tendered for exchange, the untendered Liquidation Amount of the
holder's remaining Old Capital Securities must be $100,000 or any
integral multiple of $1,000 in excess thereof. All Old Capital
Securities held shall be deemed tendered unless a lesser number is
specified in this column.
2
<PAGE> 3
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS (defined in Instruction 1)
ONLY)
[_] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
----------------------------------------
DTC Account Number:
---------------------------------------------------
Transaction Code Number:
----------------------------------------------
CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name of Registered Holder:
----------------------------------------------
Window Ticket Number (if any):
------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
--------------------
Name of Institution which Guaranteed Delivery:
------------------------
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution:
----------------------------------------
DTC Account Number:
---------------------------------------------------
Transaction Code Number:
-----------------------------------------------
[_] CHECK HERE IF OLD CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER AND NON-EXCHANGED OR UNTENDERED OLD CAPITAL SECURITIES ARE TO
BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-----------------------------------------------------------------
Address:
--------------------------------------------------------------
Area Code and Telephone Number: Contact Person:
--------------- ----------
3
<PAGE> 4
Ladies and Gentlemen:
The undersigned hereby tenders to National City Capital Trust
I, a Delaware business trust (the "Issuer"), and National City Corporation, a
Delaware corporation, as Depositor (the "Corporation"), the above-described
aggregate Liquidation Amount of the Issuer's Reset Asset Capital Securities,
Liquidation Amount $1,000 per security (the "Old Capital Securities"), in
exchange for a like aggregate Liquidation Amount of the Issuer's Reset Asset
Capital Securities, Liquidation Amount $1,000 per security (the "Exchange
Capital Securities"), which have been registered under the Securities Act of
1933 (the "Securities Act"), upon the terms and subject to the conditions set
forth in the Prospectus dated __________, 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus"), receipt of which is
acknowledged, and in this Letter of Transmittal (which, together with the
Prospectus, constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of
all or any portion of the Old Capital Securities tendered herewith in accordance
with the terms and conditions of the Exchange Offer (including, if the Exchange
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Issuer all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Corporation and the Issuer in connection with the Exchange Offer) with respect
to the tendered Old Capital Securities, with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), subject only to the right of withdrawal described in the Prospectus,
to (i) deliver Certificates for Old Capital Securities to the Issuer together
with all accompanying evidences of transfer and authenticity to, or upon the
order of, the Issuer, upon receipt by the Exchange Agent, as the undersigned's
agent, of the Exchange Capital Securities to be issued in exchange for such Old
Capital Securities, (ii) present Certificates for such Old Capital Securities
for transfer, and to transfer the Old Capital Securities on the books of the
Issuer, and (iii) receive for the account of the Issuer all benefits and
otherwise exercise all rights of beneficial ownership of such Old Capital
Securities, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE
UNDERSIGNED HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND
TRANSFER THE OLD CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE
ACCEPTED FOR EXCHANGE, THE ISSUER WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED
TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND
ENCUMBRANCES, AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT
SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST,
EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE CORPORATION, THE
ISSUER OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE
EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD CAPITAL SECURITIES TENDERED HEREBY,
AND THE UNDERSIGNED WILL COMPLY WITH ANY OBLIGATIONS IT MAY HAVE UNDER THE
REGISTRATION AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS
OF THE EXCHANGE OFFER.
The name and address of the registered holder of the Old
Capital Securities tendered hereby should be printed above, if they are not
already set forth above, as they appear on the Certificates representing such
Old Capital Securities. The Certificate numbers and the aggregate Liquidation
Amount of Old Capital Securities that the undersigned wishes to tender should be
indicated in the appropriate boxes above.
If any tendered Old Capital Securities are not exchanged
pursuant to the Exchange Offer for any reason, or if Certificates are submitted
for more Old Capital Securities than are tendered or accepted for exchange,
Certificates of such non-exchanged or untendered Old Capital Securities will be
returned (or, in the case of Old Capital Securities tendered by book-entry
transfer, such Old Capital Securities will be
4
<PAGE> 5
credited to an account maintained at DTC), without expense to the tendering
holder, promptly following the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital
Securities pursuant to any one of the procedures described under "The Exchange
Offer -- Procedures for Tendering Old Capital Securities" in the Prospectus and
in the instructions herein will, upon the Corporation's and the Issuer's
acceptance for exchange of such tendered Old Capital Securities, constitute a
binding agreement between the undersigned, the Corporation and the Issuer upon
the terms and subject to the conditions of the Exchange Offer. The undersigned
recognizes that, under certain circumstances set forth in the Prospectus, the
Corporation and the Issuer may not be required to accept for exchange any of the
Old Capital Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the Exchange
Capital Securities be issued in the name of the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, that such Exchange Capital
Securities be credited to the account indicated above maintained at DTC. If
applicable, substitute Certificates representing Old Capital Securities not
exchanged or not accepted for exchange will be issued to the undersigned or, in
the case of a book-entry transfer of Old Capital Securities, will be credited to
the account indicated above maintained at DTC. Similarly, unless otherwise
indicated under "Special Delivery Instructions" below, the undersigned hereby
directs that the Exchange Capital Securities be delivered to the undersigned at
the address shown below the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER
OF TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE CORPORATION OR THE ISSUER WITHIN THE
MEANING OF RULE 405 UNDER THE SECURITIES ACT, (II) ANY EXCHANGE CAPITAL
SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY
COURSE OF ITS BUSINESS, (III) THE UNDERSIGNED HAS NO ARRANGEMENT OR
UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE
MEANING OF THE SECURITIES ACT) OF EXCHANGE CAPITAL SECURITIES TO BE RECEIVED IN
THE EXCHANGE OFFER AND (IV) IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE
UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION
(WITHIN THE MEANING OF THE SECURITIES ACT) OF SUCH EXCHANGE CAPITAL SECURITIES.
BY TENDERING OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING
THIS LETTER OF TRANSMITTAL, A HOLDER OF OLD CAPITAL SECURITIES WHICH IS A
BROKER-DEALER THAT WILL RECEIVE EXCHANGE CAPITAL SECURITIES FOR ITS OWN ACCOUNT
IN EXCHANGE FOR OLD CAPITAL SECURITIES REPRESENTS AND AGREES, CONSISTENT WITH
CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF THE DIVISION OF CORPORATION
FINANCE OF THE SECURITIES AND EXCHANGE COMMISSION TO THIRD PARTIES, THAT (A)
SUCH OLD CAPITAL SECURITIES HELD BY THE BROKER-DEALER ARE HELD ONLY AS A
NOMINEE, OR (B) SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER
AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL
DELIVER A PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH
EXCHANGE CAPITAL SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY
DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT IT
IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE CORPORATION AND THE ISSUER HAVE AGREED THAT, SUBJECT TO
THE PROVISIONS OF THE REGISTRATION AGREEMENT, THE PROSPECTUS, AS IT MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING
BROKER-DEALER IN CONNECTION WITH RESALES OF EXCHANGE CAPITAL SECURITIES RECEIVED
IN EXCHANGE FOR OLD CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE
ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR ITS OWN
5
<PAGE> 6
ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR
A PERIOD ENDING ON THE CLOSE OF BUSINESS ON THE FIRST ANNIVERSARY FOLLOWING THE
EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES
DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH EXCHANGE CAPITAL
SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. ANY
PERSON, INCLUDING ANY PARTICIPATING BROKER-DEALER, WHO IS AN AFFILIATE MAY NOT
RELY ON SUCH INTERPRETIVE LETTERS AND MUST COMPLY WITH THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY
RESALE TRANSACTION. IN THAT REGARD, EACH PARTICIPATING BROKER-DEALER WHO
ACQUIRED OLD CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-
MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, BY TENDERING SUCH OLD CAPITAL
SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT
OF NOTICE FROM THE CORPORATION OR THE ISSUER OF THE OCCURRENCE OF ANY EVENT OR
THE DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY
REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR WHICH CAUSES THE
PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE OCCURRENCE OF
CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION AGREEMENT, SUCH PARTICIPATING
BROKER-DEALER WILL SUSPEND THE SALE OF EXCHANGE CAPITAL SECURITIES PURSUANT TO
THE PROSPECTUS UNTIL THE CORPORATION OR THE ISSUER HAS AMENDED OR SUPPLEMENTED
THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES
OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER, OR
THE CORPORATION OR THE ISSUER HAS GIVEN NOTICE THAT THE SALE OF THE EXCHANGE
CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities
are accepted for exchange will not receive accumulated Distributions on such Old
Capital Securities for any period from and after the last Distribution Date to
which Distributions have been paid on such Old Capital Securities prior to the
original issue date of the Exchange Capital Securities or, if no such
Distributions have been paid, will not receive any accumulated Distributions on
such Old Capital Securities, and the undersigned hereby waives the right to
receive any Distributions on such Old Capital Securities accumulated from and
after such Distribution Date or, if no such Distributions have been paid or duly
provided for, from and after June 6, 1997.
The undersigned will, upon request, execute and deliver any
additional documents deemed by the Corporation or the Issuer to be necessary or
desirable to complete the sale, assignment and transfer of the Old Capital
Securities tendered hereby. All authority herein conferred or agreed to be
conferred in this Letter of Transmittal shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
Except as stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION
OF OLD CAPITAL SECURITIES" ABOVE AND SINGING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE OLD CAPITAL SECURITIES AS SET FORTH IN SUCH BOX.
6
<PAGE> 7
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 14)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by the registered holder exactly as name
appears on Certificates for the Old Capital Securities hereby tendered or on a
security position listing, or by any person authorized to become the registered
holder by endorsements and documents transmitted herewith (including such
opinions of counsel, certifications and other information as may be required by
the Corporation, the Issuer or the Exchange Agent to comply with the
restrictions on transfer applicable to the Old Capital Securities). If signature
is by an attorney-in-fact, executor, administrator, trustee, guardian, officer
of a corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
______________________________________________________________________
(SIGNATURE OF HOLDER)
Date: _________________, 1997
Name:__________________________________________________________________________
(PLEASE PRINT)
Capacity (full title): _______________________________________________________
Address: ______________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number: _______________________________________________
Tax Identification or Social Security Number: _________________________________
GUARANTEE OF SIGNATURE
(SEE INSTRUCTIONS 2 AND 5)
_________________________________________
(AUTHORIZED SIGNATURE)
Date: _________________, 1997
Name:__________________________________________________________________________
(PLEASE PRINT)
Capacity (full title):_________________________________________________________
Address:_______________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:________________________________________________
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
7
<PAGE> 8
To be completed ONLY if the Exchange Capital Securities and/or
any Old Capital Securities that are not tendered are to be issued in the name of
someone other than the registered holder of the Old Capital Securities whose
name appears above.
Issue
[_] Exchange Capital Securities
[_] Old Capital Securities not tendered to:
Name:_________________________________________________________________________
Address:______________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_______________________________________________
Tax Identification or Social Security Number:_________________________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the Exchange Capital Securities and/or
any Old Capital Securities that are not tendered are to be sent to someone other
than the registered holder of the Old Capital Securities whose name appears
above, or to such registered holder at an address other than that shown above.
Mail
[_] Exchange Capital Securities
[_] Old Capital Securities not tendered to:
Name:__________________________________________________________________________
Address:_______________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:________________________________________________
Tax Identification or Social Security Number:__________________________________
8
<PAGE> 9
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. BOOK-ENTRY TRANSFER; DELIVERY OF LETTER OF TRANSMITTAL AND
CERTIFICATES; GUARANTEED DELIVERY PROCEDURES. To tender in the Exchange Offer,
holders must tender by (a) forwarding Certificates herewith or (b) book-entry
transfer pursuant to the procedures set forth in "The Exchange Offer --
Procedures for Tendering Old Capital Securities" in the Prospectus. Holders who
are DTC Participants tendering by book-entry transfer must execute such tender
through DTC's ATOP system. A holder using ATOP should transmit its acceptance to
DTC on or prior to the Expiration Date. DTC will verify such acceptance, execute
a book-entry transfer of the tendered Old Capital Securities into the Exchange
Agent's account at DTC and then send to the Exchange Agent a book-entry
confirmation, including an Agent's Message confirming that DTC has received an
express acknowledgment from such holder that such holder has received and agrees
to be bound by this Letter of Transmittal and that the Issuer and the
Corporation may enforce this Letter of Transmittal against such holder. The
book-entry confirmation must be received by the Exchange Agent in order for the
tender relating thereto to be effective. Book-entry transfer to DTC in
accordance with DTC's procedures does not constitute delivery of the book-entry
confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, as well
as this Letter of Transmittal (or facsimile thereof), properly completed and
duly executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective. The term "book-entry confirmation" means a timely
confirmation of a book-entry transfer of Old Capital Securities into the
Exchange Agent's account at DTC. The term "Agent's Message" means a message,
transmitted by DTC to and received by the Exchange Agent and forming a part of a
book-entry confirmation, which states that DTC has received an express
acknowledgment from the tendering participant, which acknowledgment states that
such participant has received and agrees to be bound by the Letter of
Transmittal (including the representations contained herein) and that the Issuer
and the Corporation may enforce the Letter of Transmittal against such
participant. Old Capital Securities may be tendered in the Liquidation Amount of
$100,000 (100 Old Capital Securities) and integral multiples of $1,000 in excess
thereof, provided that, if fewer than all of the Old Capital Securities of a
holder are tendered for exchange, the untendered Liquidation Amount of the
holder's remaining Old Capital Securities must be $100,000 (100 Old Capital
Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and
(i) whose Certificates for Old Capital Securities are not immediately available,
(ii) who cannot deliver their Old Capital Securities, this Letter of Transmittal
and all other required documents to the Exchange Agent on or prior to the
Expiration Date or (iii) who cannot complete the procedures for delivery by
book-entry transfer on or prior to the Expiration Date, may tender their Old
Capital Securities by properly completing and duly executing a Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth
under in "The Exchange Offer -- Procedures for Tendering Old Capital Securities"
in the Prospectus. Pursuant to such procedures: (i) such tender must be made by
or through an Eligible Institution (as defined below); (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form made
available by the Corporation and the Issuer, must be received by the Exchange
Agent on or prior to the Expiration Date; and (iii) the Certificates (or a
book-entry confirmation) representing all tendered Old Capital Securities, in
proper form for transfer, together with a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees and any other documents required by this Letter of Transmittal, must
be received by the Exchange Agent within three New York Stock Exchange trading
days after the date of execution of such Notice of Guaranteed Delivery, all as
provided in "The Exchange Offer -- Procedures for Tendering Old Capital
Securities" in the Prospectus.
The Notice of Guaranteed Delivery must be delivered by hand,
overnight courier or mail, or transmitted by facsimile transmission, to the
Exchange Agent on or prior to the Expiration Date, and must include a guarantee
by an Eligible Institution in the form set forth in such notice. For Old Capital
Securities to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a
9
<PAGE> 10
Notice of Guaranteed Delivery on or prior to the Expiration Date. As used herein
and in the Prospectus, "Eligible Institution" means a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor
institution," including (as such terms are defined therein) (i) a bank; (ii) a
broker, dealer, municipal securities broker or dealer or government securities
broker or dealer; (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF
THE TENDERING HOLDER AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED OR,
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY ON OR PRIOR TO THE EXPIRATION DATE.
Neither the Corporation nor the Issuer will accept any
alternative, conditional or contingent tenders. Each tendering holder, by
book-entry transfer through ATOP or execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this
Letter of Transmittal is required if:
(i) this Letter of Transmittal is signed by the
registered holder (which term, for purposes of this document,
shall include any participant in DTC whose name appears on a
security position listing as the owner of the Old Capital
Securities) of Old Capital Securities tendered herewith,
unless such holder has completed either the box entitled
"Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above; or
(ii) such Old Capital Securities are tendered for the
account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee
the signature on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box
captioned "Description of Old Capital Securities Tendered" is inadequate, the
Certificate numbers and/or the Liquidation Amount of Old Capital Securities and
any other required information should be listed on a separate signed schedule
which is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old
Capital Securities will be accepted only in the Liquidation Amount of $100,000
(100 Old Capital Securities) and integral multiples of $1,000 in excess thereof,
provided that if fewer than all of the Old Capital Securities of a holder are
tendered or exchanged, the untendered Liquidation Amount of the holder's
remaining Old Capital Securities must be $100,000 (100 Old Capital Securities)
or any integral multiple of $1,000 in excess thereof. If less than all the Old
Capital Securities evidenced by any Certificate submitted are to be tendered,
fill in the Liquidation Amount of Old Capital Securities which are to be
tendered in the box entitled "Liquidation Amount of Old Capital Securities
Tendered (If Less than All are Tendered)." In such case, a new Certificate for
the remainder of the Old Capital Securities that were evidenced by your Old
Certificate will be sent to the holder of the Old Capital Securities, promptly
after the Expiration Date unless the appropriate boxes on this Letter of
Transmittal are completed. All Old Capital Securities represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
10
<PAGE> 11
Except as otherwise provided herein, tenders of Old Capital
Securities may be withdrawn at any time on or prior to the Expiration Date. In
order for a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be received by the
Exchange Agent at one of its addresses set forth above or in the Prospectus on
or prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Old Capital Securities to be withdrawn, the
aggregate principal amount of Old Capital Securities to be withdrawn and (if
Certificates for Old Capital Securities have been tendered) the name of the
registered holder of the Old Capital Securities as set forth on the Certificates
for the Old Capital Securities, if different from that of the person who
tendered such Old Capital Securities. If Certificates for the Old Capital
Securities have been delivered or otherwise identified to the Exchange Agent,
then prior to the physical release of such Certificates, the tendering holder
must submit the serial numbers shown on the particular Certificates for the Old
Capital Securities to be withdrawn and the signature on the notice of withdrawal
must be guaranteed by an Eligible Institution, except in the case of Old Capital
Securities tendered for the account of an Eligible Institution. If Old Capital
Securities have been tendered pursuant to the procedures for book-entry transfer
set forth under "The Exchange Offer -- Procedures for Tendering Old Capital
Securities," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of Old Capital Securities, in
which case a notice of withdrawal will be effective if delivered to the Exchange
Agent by written, telegraphic, telex or facsimile transmission on or prior to
the Expiration Date. Withdrawals of tenders of Old Capital Securities may not be
rescinded. Old Capital Securities properly withdrawn will not be deemed validly
tendered for purposes of the Exchange Offer, but may be retendered at any
subsequent time on or prior to the Expiration Date by following any of the
procedures described in the Prospectus under "The Exchange Offer -- Procedures
for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be determined by the
Corporation and the Issuer, in their sole discretion, whose determination shall
be final and binding on all parties. Neither the Corporation, the Issuer, any
affiliates or assigns of the Corporation or the Issuer, the Exchange Agent nor
any other person shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification. Any Old Capital Securities which have been tendered
but which are withdrawn on or prior to the Expiration Date will be returned to
the holder thereof without cost to such holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder
of the Old Capital Securities tendered hereby, the signature must correspond
exactly with the name as written on the face of the Certificates without
alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby are owned
of record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If any tendered Old Capital Securities are registered in
different names on several Certificates, it will be necessary to complete, sign
and submit as many separate Letters of Transmittal (or facsimiles thereof) as
there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond
powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and must
submit proper evidence satisfactory to the Corporation and the Issuer, in their
sole discretion, of such persons' authority to so act.
When this Letter of Transmittal is signed by the registered
holder of the Old Capital Securities listed and transmitted hereby, no
endorsement of Certificates or separate bond powers are required unless Exchange
Capital Securities are to be issued in the name of a person other than the
registered holder. Signatures on such Certificates or bond powers must be
guaranteed by an Eligible Institution.
11
<PAGE> 12
If this Letter of Transmittal is signed by a person other than
the registered holder of the Old Capital Securities, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
of the registered holder appears on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Corporation, the Issuer or the Exchange Agent may require in accordance with
the restrictions on transfer applicable to the Old Capital Securities.
Signatures on such Certificates or bond powers must be guaranteed by an Eligible
Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange
Capital Securities are to be issued in the name of a person other than the
registered holder, or if Exchange Capital Securities are to be sent to someone
other than the registered holder or to an address other than that shown above,
the appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Capital Securities not exchanged will be returned by mail
or, if tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC unless the appropriate boxes on this Letter of Transmittal are
completed. See Instruction 4.
7. IRREGULARITIES. The Corporation and the Issuer will
determine, in their sole discretion, all questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tender of Old Capital Securities, which determination shall be final and
binding on all parties. The Corporation and the Issuer reserve the absolute
right to reject any and all tenders determined by either of them not to be in
proper form or the acceptance of which, or exchange for, may, in the view of
counsel to the Corporation or the Issuer, be unlawful. The Corporation and the
Issuer also reserve the absolute right, subject to applicable law, to waive any
of the conditions of the Exchange Offer set forth in the Prospectus under "The
Exchange Offer -- Conditions to the Exchange Offer" or any conditions or
irregularity in any tender of Old Capital Securities of any particular holder
whether or not similar conditions or irregularities are waived in the case of
other holders. The Corporation's and the Issuer's interpretation of the terms
and conditions of the Exchange Offer (including this Letter of Transmittal and
the instructions hereto) will be final and binding. No tender of Old Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. The Corporation, the
Issuer, any Affiliates or assigns of the Corporation or the Issuer, the Exchange
Agent or any other person shall not be under any duty to give notification of
any irregularities in tenders or incur any liability for failure to give such
notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and this Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S.
Federal income tax law, a holder whose tendered Old Capital Securities are
accepted for exchange is required to provide the Exchange Agent with such
holder's correct taxpayer identification number ("TIN") on the Substitute Form
W-9 below. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service (the "IRS") may subject the holder or other payee to a
$50 penalty. In addition, payments to such holders or other payees with respect
to Old Capital Securities exchanged pursuant to the Exchange Offer may be
subject to 31% backup withholding.
The box in Part 3 of the Substitute Form W-9 may be checked if
the tendering holder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is checked,
the holder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the Substitute Form W-9.
If the holder furnishes the Exchange Agent with its TIN within 60 days
12
<PAGE> 13
after the date of the Substitute Form W-9, the amounts retained during the 60
day period will be remitted to the holder and no further amounts shall be
retained or withheld from payments made to the holder thereafter. If, however,
the holder has not provided the Exchange Agent with its TIN within such 60 day
period, amounts withheld will be remitted to the IRS as backup withholding. In
addition, 31% of all payments made thereafter will be withheld and remitted to
the IRS until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN
(e.g., social security number or employer identification number) of the
registered owner of the Old Capital Securities or of the last transferee
appearing on the transfers attached to, or endorsed on, the Old Capital
Securities. If the Old Capital Securities are registered in more than one name
or are not in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
Certain holders (including, among others, corporations,
financial institutions and certain foreign persons) may not be subject to these
backup withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income
tax. Rather, the U.S. Federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld.
If withholding results in an overpayment of taxes, a refund may be obtained.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any
Certificates representing Old Capital Securities have been lost, destroyed or
stolen, the holder should promptly notify the Exchange Agent. The holder will
then be instructed as to the steps that must be taken in order to replace the
Certificates. This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificates have been followed.
11. SECURITY TRANSFER TAXES. Holders who tender their Old
Capital Securities for exchange will not be obligated to pay any transfer taxes
in connection therewith. If, however, Exchange Capital Securities are to be
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Old Capital Securities tendered, or if a transfer tax
is imposed for any reason other than the exchange of Old Capital Securities in
connection with the Exchange Offer, then the amount of any such transfer tax
(whether imposed on the registered holder or any other persons) will be payable
by the tendering holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF OR
AGENT'S MESSAGE IN LIEU THEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE
RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
13
<PAGE> 14
PAYER'S NAME: The Bank of New York
<TABLE>
<S> <C> <C>
SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE Social security number OR
BOX AT RIGHT AND CERTIFY BY SIGNING AND Employer identification number
DATING BELOW. -------------------------------
Form W-9
Department of the Treasury
Internal Revenue Service
---------------------------------------------------------------------
Part 2 -- CERTIFICATION -- Under penalties of perjury, I certify that:
Payer's Request for Taxpayer (1) The number shown on this form is my correct
Identification Number (TIN) Taxpayer Identification Number (or I am waiting for
a number to be issued to me) and
(2) I am not subject to backup withholding
either because: (a) I am exempt from backup
withholding, or (b) I have not been notified by
the Internal Revenue Service (the "IRS") that I
am subject to backup withholding as a result of
a failure to report all interest or dividends,
or (c) the IRS has notified me that I am no
longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS -- You must cross Part 3 --
out item (2) above if you have been notified
by the IRS that you are currently subject to
backup withholding because under reporting Awaiting TIN [ ]
interest or dividends on your tax return.
However, if after being notified by the IRS
that you are subject to backup withholding,
you received another notification from the
IRS that you are no longer subject to backup
withholding, do not cross out such item (2).
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE
YOUR CONSENT TO ANY PROVISION OF THIS DOCUMENT
OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID
BACKUP WITHHOLDING.
SIGNATURE Date
------------------------ ---------
NAME (Please Print)
-----------------------------
ADDRESS (Please Print)
--------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM
W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
14
<PAGE> 15
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (1) I have mailed or
delivered an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security Administration
Office or (2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the time
of payment, 31% of all reportable payments made to me will be withheld, but that
such amounts will be refunded to me if I then provide a Taxpayer Identification
Number within sixty (60) days.
Signature_____________________________________________ Date____________________
Name (Please Print)____________________________________________________________
Address (Please Print)_________________________________________________________
15
<PAGE> 1
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
RESET ASSET CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
NATIONAL CITY CAPITAL TRUST I
This Notice of Guaranteed Delivery, or one substantially equivalent to
this form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Issuer's (as defined below) Reset Asset Capital Securities,
Liquidation Amount $1,000 per security (the "Capital Securities"), are not
immediately available, (ii) Capital Securities, the Letter of Transmittal and
all other required documents cannot be delivered to The Bank of New York (the
"Exchange Agent") on or prior to the Expiration Date (as defined in the
Prospectus referred to below) or (iii) the procedures for delivery by book-entry
transfer cannot be completed on or prior to the Expiration Date. This Notice of
Guaranteed Delivery may be delivered by hand, overnight courier or mail, or
transmitted by facsimile transmission, to the Exchange Agent on or prior to the
Expiration Date. See "The Exchange Offer -- Procedures for Tendering Capital
Securities" in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
BY REGISTERED OR CERTIFIED MAIL:
The Bank of New York
101 Barclay Street - 7E
New York, New York 10286
Attention: Enrique Lopez
Reorganization Section
BY HAND OR OVERNIGHT DELIVERY:
The Bank of New York
101 Barclay Street
Corporate Trust Services Window
Ground Level
New York, New York 10286
Attention: Enrique Lopez
Reorganization Section
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(212) 815-2742
FACSIMILE TRANSMISSIONS:
(212) 815-6339
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to National City Capital Trust I, a
Delaware business trust (the "Issuer"), and National City Corporation, a
Delaware corporation, as Depositor (the "Corporation"), upon the terms and
subject to the conditions set forth in the Prospectus dated _____________, 1997
(as the same may be amended or supplemented from time to time, the"Prospectus"),
and the related Letter of Transmittal (which, together with the Prospectus,
constitute the "Exchange Offer"), receipt of which is hereby acknowledged, the
aggregate Liquidation Amount of Capital Securities set forth below pursuant to
the guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer -- Procedures for Tendering Capital Securities."
Aggregate Liquidation Name of Registered Holder:
Amount Tendered:___________________ ___________________________________
Certificate Nos. Address:___________________________
(if available):____________________ ___________________________________
Area Code and Telephone Number:
-----------------------------------
If Capital Securities will be tendered by book-entry transfer, provide the
following information:
Signature:________________________________________________________________
DTC Account
Number:___________________________________________________________________
Date:_____________________________________________________________________
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker or government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Capital
Securities tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Capital Securities, to the Exchange Agent's account
at The Depository Trust Company ("DTC"), pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together with
one or more properly completed and duly executed Letters of Transmittal (or
facsimile thereof or Agent's Message in lieu thereof) and any other required
documents within three business days after the date of execution of this Notice
of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letters of
Transmittal (or Agent's Message in lieu thereof) and the Capital Securities
tendered hereby to the Exchange Agent within the time period set forth above and
that failure to do so could result in a financial loss to the undersigned.
Name of
Firm:___________________________________________________________________________
Authorized
Signature:______________________________________________________________________
(Title)
Address:________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone
Number:_________________________________________________________________________
Date:___________________________________________________________________________
NOTE: DO NOT SEND CAPITAL SECURITIES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF OLD CAPITAL SECURITIES MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY
EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
