Exhibit 4.6
GUARANTEE AGREEMENT
DATED AS OF NOVEMBER 3, 2006
BY AND BETWEEN
NATIONAL CITY CORPORATION
AS GUARANTOR
AND
THE BANK OF NEW YORK TRUST COMPANY, N.A.
AS TRUSTEE
CROSS REFERENCE TABLE(1)
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
---------------- --------------
310(a) 4.1(a)
310(b) 2.8; 4.1(c)
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a); 2.9
312(b) 2.2(b); 2.9
312(c) 2.9
313(a) 2.3
313(b) 2.3
313(c) 2.3
313(d) 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 2.5
314(f) Inapplicable
315(a) 3.1(d); 3.2(a)
315(b) 2.7(a)
315(c) 3.1(c)
315(d) 3.1(d)
316(a) 2.6; 5.4(a)
316(b) 5.3
316(c) Inapplicable
317(a) 2.10
317(b) Inapplicable
318(a) 2.1(b)
(1) This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION AND DEFINITIONS .................................. 1
SECTION 1.1. Interpretation and Definitions ........................... 1
ARTICLE 2 TRUST INDENTURE ACT ............................................. 4
SECTION 2.1. Trust Indenture Act; Application ......................... 4
SECTION 2.2. Lists of Holders of Securities ........................... 4
SECTION 2.3. Reports by Guarantee Trustee ............................. 5
SECTION 2.4. Periodic Reports to Guarantee Trustee .................... 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent ........ 5
SECTION 2.6. Guarantee Event of Default; Waiver ....................... 5
SECTION 2.7. Guarantee Event of Default; Notice ....................... 5
SECTION 2.8. Conflicting Interests .................................... 6
SECTION 2.9. Disclosure of Information ................................ 6
SECTION 2.10. Guarantee Trustee May File Proofs of Claim ............ 6
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE .................. 6
SECTION 3.1. Powers and Duties of Guarantee Trustee ................... 6
SECTION 3.2. Certain Rights of Guarantee Trustee ...................... 8
ARTICLE 4 GUARANTEE TRUSTEE ............................................... 9
SECTION 4.1. Guarantee Trustee; Eligibility ........................... 9
SECTION 4.2. Appointment, Removal and Resignation of Guarantee
Trustee .................................................. 10
SECTION 4.3 Indemnification .......................................... 11
ARTICLE 5 GUARANTEE ....................................................... 11
SECTION 5.1. Guarantee ................................................ 11
SECTION 5.2. Waiver of Notice and Demand .............................. 11
SECTION 5.3. Obligations Not Affected ................................. 11
SECTION 5.4. Rights of Holders ........................................ 12
SECTION 5.5. Guarantee of Payment ..................................... 13
SECTION 5.6. Subrogation .............................................. 13
SECTION 5.7. Independent Obligations .................................. 13
ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION ....................... 13
SECTION 6.1. Limitation of Transactions ............................... 13
-i-
SECTION 6.2. Ranking .................................................. 14
SECTION 6.3. Subordination of Common Securities ....................... 14
ARTICLE 7 TERMINATION ..................................................... 14
SECTION 7.1. Termination .............................................. 14
ARTICLE 8 MISCELLANEOUS ................................................... 15
SECTION 8.1. Successors and Assigns ................................... 15
SECTION 8.2. Amendments ............................................... 15
SECTION 8.3. Notices .................................................. 15
SECTION 8.4. Benefit .................................................. 16
SECTION 8.5. Governing Law ............................................ 16
-ii-
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of November 3,
2006, is executed and delivered by NATIONAL CITY CORPORATION, a Delaware
corporation (the "Guarantor"), and THE BANK OF NEW YORK TRUST COMPANY, N.A., a
national banking association organized and existing under the laws of the United
States of America, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Securities (as defined
herein) of NATIONAL CITY CAPITAL TRUST II, a Delaware statutory trust (the
"Trust").
RECITALS
WHEREAS, pursuant to the Trust Agreement (as defined herein), the
Trust may issue up to $862,500,000 aggregate liquidation amount of capital
securities, having a liquidation amount of $25.00 per security and designated
the "Trust Preferred Securities" of the Trust (the "Capital Securities") and up
to $1,000,000 liquidation amount of common securities, having a liquidation
amount of $1,000 per security and designated the "Common Securities" of the
Trust (the "Common Securities" and, together with the Capital Securities, the
"Securities");
WHEREAS, as an incentive for the Holders to purchase the Securities,
the Guarantor desires to irrevocably and unconditionally agree, to the extent
set forth in this Guarantee, to pay to the Holders of the Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein; and
WHEREAS, if a Trust Enforcement Event (as defined herein) has occurred
and is continuing, the rights of holders of the Common Securities to receive
Guarantee Payments (as defined herein) under this Guarantee are subordinated to
the rights of Holders of Capital Securities to receive Guarantee Payments under
this Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation and Definitions. In this Guarantee, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee 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 Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee Agreement as modified, supplemented or amended from time to time;
-1-
(d) all references in this Guarantee to Articles, Sections and
Recitals are to Articles, Sections and Recitals of this Guarantee, unless
otherwise specified;
(e) unless otherwise defined in this Guarantee, a term defined in the
Trust Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa and
a reference to any masculine form of a term shall include the feminine form of a
term, as applicable; and
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" has the meaning specified in the Trust Agreement.
"Capital Securities" has the meaning specified in the Recitals hereto.
"Common Securities" has the meaning specified in the Recitals hereto.
"Common Stock" means the common stock, par value $4.00 per share, of
the Guarantor.
"Corporate Trust Office" means the principal office of the Guarantee
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Guarantee is located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Global Security" means a fully registered, global Capital Security,
as defined in the Indenture, representing the Capital Securities.
"Guarantee Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid by
or on behalf of the Trust: (i) any accumulated and unpaid Distributions (as
defined in the Trust Agreement) that are required to be paid on such Securities
to the extent the Trust has sufficient funds available therefore at the time,
(ii) the redemption price, including all accumulated and unpaid Distributions to
the date of redemption, with respect to any Securities called for redemption by
the Trust, to the extent the Trust shall have sufficient funds available
therefore at the time or (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Trust (other than in connection with the
distribution of ICONs to the Holders in exchange for Securities as provided in
the Trust Agreement), the lesser of (a) the aggregate of the liquidation amount
and all accumulated and unpaid Distributions on the Securities to the date of
payment, to the extent the Trust has sufficient funds available therefore and
(b) the amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution").
-2-
"Guarantee Trustee" means The Bank of New York Trust Company, N.A.
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder of Securities, as registered on the books
and records of the Trust; 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 or any Affiliate of the Guarantor or any other obligor on the Capital
Securities.
"ICONs" means the series of junior subordinated securities to be
issued by National City Corporation designated the "Series A Income Capital
Obligation Notes", held by the Property Trustee as defined in the Trust
Agreement.
"Indenture" means the Junior Subordinated Indenture, dated as of
November 3, 2006, by and between National City Corporation and The Bank of New
York Trust Company, N.A., as Trustee, and any indenture supplemental thereto
pursuant to which the ICONs are to be issued to the Property Trustee, as defined
in the Trust Agreement.
"List of Holders" has the meaning assigned to it in Section 2.2
hereof.
"Majority in Liquidation Amount" means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities, voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class. In determining
whether the Holders of the requisite amount of Securities have voted, Securities
which are owned by the Guarantor or any Affiliate of the Guarantor or any other
obligor on the Securities shall be disregarded for the purpose of any such
determination.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Trust Agreement) of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(ii) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(iii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer on behalf of such Person to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
-3-
(iv) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such 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.
"Redemption Price" has the meaning specified in the Trust Agreement.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any officer with direct responsibility for the administration of this Guarantee
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of the date hereof, as amended, modified or supplemented from time to
time, among the trustees of the Trust named therein, the Guarantor, as sponsor,
and the Holders, from time to time, of undivided beneficial ownership interests
in the assets of the Trust.
"Trust Enforcement Event" in respect of the Securities means an
Indenture Event of Default (as defined in the Indenture) has occurred and is
continuing in respect of the ICONs.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. (a) This Guarantee is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Guarantee 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 2.2. Lists of Holders of Securities. (a) The Guarantor shall
provide the Guarantee Trustee (i) except while the Capital Securities are
represented by one or more Global Securities, at least two Business Days prior
to the date for payment of Distributions, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of the record date relating to the payment of
such Distributions,
-4-
and (ii) at any other time, within 30 days of receipt by the Guarantor of a
written request from the Guarantee Trustee for a List of Holders as of a date no
more than 15 days before such List of Holders is given to the Guarantee Trustee;
provided that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Guarantee Trustee by the Guarantor. The Guarantee
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it, provided that 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
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by Guarantee Trustee. Within 60 days after November 1
of each year (commencing with the year of the first anniversary of the issuance
of the Securities), the Guarantee Trustee shall provide to the Holders of the
Securities such reports as are required by Section 313 of the Trust Indenture
Act (if any) in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Guarantee Trustee. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and information as
required by Section 314(a) (if any) of the Trust Indenture Act 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(a) of the Trust
Indenture Act, but in no event later than 120 days after the end of each
calendar year.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee 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) may be given in the form of an Officers' Certificate.
SECTION 2.6. Guarantee Event of Default; Waiver. The Holders of a Majority
in Liquidation Amount of the Capital Securities may, by vote or written consent,
on behalf of the Holders of all of the Securities, waive any past Guarantee
Event of Default and its consequences. Upon such waiver, any such Guarantee
Event of Default shall cease to exist, and any Guarantee Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default or
Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7. Guarantee Event of Default; Notice. (a) The Guarantee Trustee
shall, within 90 days after the occurrence of a Guarantee Event of Default
actually known to a Responsible Officer of the Guarantee Trustee, transmit by
mail, first class postage prepaid, to the Holders of the Securities, notices of
all such Guarantee Events of Default, unless such defaults have been cured
before the giving of such notice; provided that the Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Guarantee Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
-5-
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof or a Responsible Officer of the Guarantee Trustee charged
with the administration of this Guarantee Agreement shall have obtained actual
knowledge thereof.
SECTION 2.8. Conflicting Interests. The Trust Agreement shall be deemed to
be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 2.9. Disclosure of Information. The disclosure of information as to
the names and addresses of the Holders of the Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law, or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 2.10. Guarantee Trustee May File Proofs of Claim. Upon the
occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee Payments
remaining unpaid and (b) file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have its claims and those of the
Holders of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of Guarantee Trustee.
(a) This Guarantee shall be held by the Guarantee Trustee on behalf of
the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities exercising his or her rights pursuant to Section 5.4(b) 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 in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and succession of
title shall be effective whether or not conveyance documents have been executed
and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee for the benefit of the Holders of the
Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee
Event of Default and after the curing of all Guarantee Events of Default that
may have occurred, shall undertake to
-6-
perform only such duties as are specifically set forth in this Guarantee, and no
implied covenants shall be read into this Guarantee against the Guarantee
Trustee. In case a Guarantee Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6) and is actually known to a Responsible
Officer of the Guarantee Trustee, the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee, 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 shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Guarantee 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, 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, and no implied covenants or obligations
shall be read into this Guarantee against the Guarantee
Trustee; 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; but in the case of any such
certificates or opinions that by any provision hereof
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;
(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 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; and
(iv) no provision of this Guarantee 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 reasonably
-7-
assured to it under the terms of this Guarantee or if the Guarantee Trustee
shall have reasonable grounds for believing that an indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or liability is not
reasonably assured to it under the terms of this Guarantee.
SECTION 3.2. Certain Rights of Guarantee Trustee. (a) Subject to the
provisions of Section 3.1:
(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 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 shall be sufficiently evidenced by an Officers' Certificate;
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting 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, shall be promptly delivered by
the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration or any instrument (or any rerecording,
refiling or re-registration thereof);
(v) The Guarantee Trustee may consult with counsel, and the
advice or opinion of such counsel with respect to legal matters 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 accordance with such
advice or opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the administration of
this Guarantee from any court of competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee 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
the Guarantee Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Guarantee Trustee's agents, nominees or
custodians) 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
3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the occurrence
of a Guarantee Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee;
(vii) 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
-8-
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;
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, nominees, custodians or attorneys, and the Guarantee 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;
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such action.
No third party shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and provisions
of this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action; and
(x) Whenever in the administration of this Guarantee, 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 (i) may request written instructions from the Holders of a
Majority in Liquidation Amount of the Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such written
instructions are received and (iii) shall be protected in conclusively relying
on or acting in accordance with such written instructions.
(b) No provision of this Guarantee 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 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 to act 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.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under the
Trust Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then,
for the
-9-
purposes of this Section 4.1(a)(ii), 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.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(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 4.2. Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) 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 to office shall hold such 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 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may petition 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.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of
the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to
the Guarantee Trustee all amounts owing for fees and reimbursement of expenses
which have accrued to the date of such termination, removal or resignation.
-10-
SECTION 4.3. Indemnification
The Guarantor agrees to indemnify each of the Guarantee Trustee and
any predecessor Guarantee Trustee and its agents for, and to hold them harmless
against, any loss, liability, claim, damage or expense including taxes (other
than taxes based upon, measured by or determined by the income of the Guarantee
Trustee) incurred without negligence or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder. The benefits of this
section shall survive termination of this Guarantee and resignation or removal
of the Guarantee Trustee.
ARTICLE 5
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), as and when due, regardless of any defense, right of set-off
or counterclaim that the Trust 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 Trust to pay such
amounts to the Holders. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to extend the interest
payment period on the ICONs pursuant to Section 3.11 thereof and the Guarantor
shall not be obligated hereunder to make any Guarantee Payments during any
Extension Period (as defined in the certificate evidencing the ICONs) with
respect to the Distributions (as defined in the Trust Agreement) on the
Securities.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee and
of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Trust 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 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall be absolute and unconditional and shall remain in
full force and effect until terminated in accordance with Section 7.1 below, the
entire liquidation amount of all outstanding Securities shall have been paid and
such obligation shall in no way be affected or impaired by reason of the
happening from time to time of any event, including without limitation, the
following, whether or not with notice to, or the consent of, the Guarantor:
-11-
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the ICONs);
(c) Any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
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 Trust or any of the assets of the
Trust, except as provided in the first sentence of this Section 5.3;
(e) Any invalidity of, or defect or deficiency in, the 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 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Guarantee Trustee or the Holders
to give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or
any defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee.
SECTION 5.4. Rights of Holders.
(a) The Holders of at least a Majority in Liquidation Amount of the
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 this
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee.
-12-
(b) If the Guarantee Trustee fails to enforce this Guarantee, then any
Holder of Securities may, subject to the subordination provisions of Section
6.2, institute a legal proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder of Securities may, subject to the subordination provisions of Section
6.2, directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the principal
of or interest on the ICONs on or after the respective due dates specified in
the ICONs, and the amount of the payment will be based on the Holder's pro rata
share of the amount due and owing on all of the Securities. The Guarantor hereby
waives any right or remedy to require that any action on this Guarantee be
brought first against the Trust or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.5. Guarantee of Payment.
This Guarantee 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 Trust) or upon distribution of the ICONs to Holders as provided in the Trust
Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Securities against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that 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, if at the time of any such payment,
any amounts are due and unpaid under this Guarantee. 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
Guarantee Trustee for the benefit of the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the
occurrence of any event referred to in subsections 5.3(a) through 5.3(g),
inclusive, hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.
So long as any Securities remain outstanding, if (i) there shall have
occurred an event of default under the Indenture with respect to the ICONs, (ii)
there shall be a Guarantee Event of
-13-
Default or (iii) the Guarantor shall have given notice of its election of an
Extension Period as provided in the certificate evidencing the ICONs and shall
not have rescinded such notice, or such Extension Period or any extension
thereof shall be continuing, then the Guarantor shall not, and shall not permit
any subsidiary of the Guarantor, to (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Guarantor's capital stock or (y) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Guarantor that rank pari passu with or junior in interest
to the ICONs or make any guarantee payments with respect to any guarantee by the
Guarantor of the debt securities of any subsidiary of the Guarantor if such
guarantee ranks pari passu with or junior in interest to the ICONs (other than
(a) dividends or distributions in additional shares of capital stock of the
Guarantor, (b) any declaration of a dividend in connection with the
implementation of a rights plan or the issuance of stock under any such plan or
the redemption or repurchase of any such rights pursuant thereto, (c) payments
under this Guarantee and (d) purchases of Common Stock related to the issuance
of Common Stock or rights under any of the Company's benefits plans for its
directors, officers or employees).
SECTION 6.2. Ranking.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
and Subordinated Debt (as defined in the Indenture) of the Guarantor in the same
manner and to the same extent as set forth in Article XIII of the Indenture.
SECTION 6.3. Subordination of Common Securities.
If a Trust Enforcement Event has occurred and is continuing under the
Trust Agreement, the rights of the holders of the Common Securities to receive
Guarantee Payments hereunder shall be subordinated to the rights of the Holders
of the Capital Securities to receive Guarantee Payments under this Guarantee.
ARTICLE 7
TERMINATION
SECTION 7.1. Termination.
This Guarantee shall terminate upon (i) full payment of the Redemption
Price of all Securities, (ii) distribution of the ICONs to the Holders of all
the Securities or (iii) full payment of the amounts payable in accordance with
the Trust Agreement upon liquidation of the Trust. Notwithstanding the
foregoing, this Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any Holder of Securities must restore payment
of any sums paid under the Securities or under this Guarantee.
-14-
ARTICLE 8
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the 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 successor or assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations hereunder.
SECTION 8.2. Amendments.
Except with respect to any changes that do not materially adversely affect the
rights of the Holders (in which case no consent of the Holders will be
required), this Guarantee may not be amended without the prior approval of the
Holders of at least a Majority in Liquidation Amount of the Securities. The
provisions of Sections 6.2 and 6.5 of the Trust Agreement with respect to
meetings of, and action by written consent of, the Holders of the Securities
apply to the giving of such approval.
SECTION 8.3. Notices.
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered by hand,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Guarantor and the Holders of the Securities):
The Bank of New York Trust Company, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-15-
(b) If given to the Guarantor, at the Guarantor's mailing addresses
set forth below (or such other address as the Guarantor may give notice of to
the Guarantee Trustee and the Holders of the Securities):
National City Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (216) 222- 2983
Attention: Treasurer
(c) If given to any Holder of Securities, at the address set forth on
the books and records of the Trust.
All such notices 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 8.4. Benefit.
This Guarantee is solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable from
the Securities.
SECTION 8.5. Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-16-
IN WITNESS WHEREOF, this Guarantee is executed as of the day and year
first above written.
NATIONAL CITY CORPORATION,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Treasurer
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Guarantee Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Assistant Vice President
---------------------------------
