Exhibit 4(e)(2)
=================================================
FIRST SUPPLEMENTAL INDENTURE
between
FIRST CHICAGO NBD CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of January 31, 1997
==================================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms............................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount............ 3
SECTION 2.2. Maturity.................................... 3
SECTION 2.3. Form and Payment............................ 3
SECTION 2.4. Global Debenture............................ 4
SECTION 2.5. Interest.................................... 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event
Redemption................................. 8
SECTION 3.2. Optional Redemption by Company.............. 9
SECTION 3.3. No Sinking Fund............................. 9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.............. 9
SECTION 4.2. Notice of Extension............................... 10
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses............................... 11
Section 5.2. Payment Upon Resignation or Removal............... 11
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture................................. 12
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures...................... 20
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture........................ 20
SECTION 8.2. Trustee Not Responsible for Recitals............. 21
i
SECTION 8.3. Governing Law.................................... 21
SECTION 8.4. Separability..................................... 21
SECTION 8.5. Counterparts..................................... 22
ii
FIRST SUPPLEMENTAL INDENTURE, dated as of January 31, 1997 (the "First
Supplemental Indenture"), between First Chicago NBD Corporation, a Delaware
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
"Trustee"), under the Indenture dated as of January 1, 1997 between the Company
and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its Floating Rate Junior Subordinated Deferrable Interest Debentures due
February 1, 2027 (the "Debentures"), the form and substance of such Debentures
and the terms, provisions and conditions thereof to be set forth as provided in
the Indenture and this First Supplemental Indenture;
WHEREAS, First Chicago NBD Capital I, a Delaware statutory business
trust (the "Trust"), has offered to the public $250,000,000 aggregate
liquidation amount of its Floating Rate Preferred Securities (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $7,732,000
aggregate liquidation amount of its Floating Rate Common Securities, in
$257,732,000 aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture pursuant to Sections 3.01 and 9.01 of
the Indenture and all requirements necessary to make this First Supplemental
Indenture a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this First Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1 Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Treatment Event; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Institutional Trustee; (vi) Institutional
Trustee Account; (vii) Preferred Security Certificate; (viii) Regular Trustees;
(ix) Tax Event; and (x) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
---------------
"Compounded Interest" shall have the meaning set forth in Section 4.1.
-------------------
"Declaration" means the Amended and Restated Declaration of Trust of
-----------
First Chicago NBD Capital I, a Delaware statutory business trust, dated as of
January 1, 1997.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
-----------------
"Depositary", with respect to the Debentures, means The Depository
----------
Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust by the Regular
-----------------
Trustees in accordance with the Declaration, and the distribution of the
Debentures held by the Institutional
2
Trustee to the holders of the Trust Securities issued by the Trust pro rata in
--------
accordance with the Declaration.
"Global Debenture" shall have the meaning set forth in Section 2.4.
----------------
"Maturity Date" shall mean February 1, 2027.
-------------
"Non Book-Entry Preferred Securities" shall have the meaning set forth
-----------------------------------
in Section 2.4.
"Redemption Price" shall mean, with respect to any redemption of the
----------------
Debentures pursuant to Article III hereof, an amount in cash equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
"Trust Securities" shall mean the Preferred Securities and the Common
----------------
Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 1 Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the
"Floating Rate Junior Subordinated Deferrable Interest Debentures due February
1, 2027", limited in aggregate principal amount to $257,732,000, which amount
shall be as set forth in any written order of the Company for the authentication
and delivery of Debentures pursuant to Section 3.03 of the Indenture.
SECTION 2 Maturity.
--------
The Maturity Date (which shall constitute the Stated Maturity of the
Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 3 Form and Payment.
----------------
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons in minimum
denominations of $1,000 and in integral multiples thereof. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchange-
3
able for Debentures bearing identical terms and provisions at the office or
agency of the Company as set forth in the last sentence of Section 5.02 of the
Indenture; provided, however, that payment of interest may be made, at the
-------- -------
option of the Company, by check mailed to the Holder at such address as shall
appear in the Security Register or by wire transfer to an account designated by
a Holder in writing not less than ten days prior to the date of payment. The
Company selects each of the City of New York, New York and the City of Chicago,
Illinois as a Place of Payment for the Debentures and hereby appoints The First
National Bank of Chicago as Securities Registrar for the Debentures.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Institutional Trustee, the payment of the principal of and interest (including
Compounded Interest and Additional Sums, if any) on such Debentures held by the
Institutional Trustee will be made at such place and to such account as may be
designated by the Institutional Trustee.
SECTION 2 Global Debenture.
----------------
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name
of the Depositary, or its nominee, and delivered by the Trustee to or upon
the order of the Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Regular Trustees. The Company upon any
such presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with the Indenture and this First Supplemental
Indenture. Payments on the Debentures issued as a Global Debenture will be
made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent beneficial interests in
Debentures presented to the Trustee by the Institutional Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Debenture, registered
4
in the name of the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security Certificate, as the case
may be, with an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate cancelled, will be executed by
the Company and delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this First Supplemental Indenture. Upon the
issuance of such Debentures, Debentures with an equivalent aggregate
principal amount that were presented by the Institutional Trustee to the
Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
SECTION 2. Interest.
--------
(a) Each Debenture will bear interest at the Interest Rate (as defined
below) from January 31, 1997 until the principal thereof becomes due and
payable, and on any overdue principal at the Interest Rate and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Interest Rate, compounded quarterly,
payable (subject to the provisions of Article Four) quarterly in arrears on
February 1, May 1, August 1 and November 1 of each year commencing on May 1,
1997, to the Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which, in respect of any Debentures of which the
Institutional Trustee is the Holder or in the case of a Global Debenture, shall
be the close of business on the Business Day next preceding that Interest
Payment Date (as defined below). Notwithstanding the foregoing sentence, if the
Debentures are no longer in book-entry only form, except if the Debentures are
held by the Institutional Trustee, the regular record dates shall be the January
15, April 15, July 15 and October 15 prior to the applicable Interest Payment
Date.
(b) The Interest Rate in respect of the Debentures will be a floating
rate per annum determined by reference to 3-Month LIBOR, determined as described
below, plus a margin of 0.55%. "3-Month LIBOR" means the London interbank
offered rate for three month U.S. dollar deposits and with respect to any
Interest Period will be calculated by The First National Bank of Chicago, as
calculation agent (the "Calculation Agent"), as follows:
(i) On the second Market Day (as defined below) preceding the
commencement of such Interest Period (each, a
5
"Determination Date"), 3-Month LIBOR will be determined on the basis of the
offered rate for deposits of not less than U.S. $1,000,000 for a period of three
months (the "Index Maturity"), commencing on the second Market Day immediately
preceding the commencement of such Interest Period, which appears on the display
designated as Page 3750 on the Dow ▇▇▇▇▇ Telerate Service (or such other pages
as may replace Page 3750 on that service for the purpose of displaying London
interbank offered rates of major banks) ("Telerate Page 3750") as of 11:00 a.m.,
London time on said Determination Date. If no such offered rate appears, 3-Month
LIBOR with respect to such Interest Period will be determined as described in
(ii) below.
(ii) With respect to a Determination Date on which no such offered rate
appears on Telerate Page 3750 as described in (i) above, 3-Month LIBOR shall be
the arithmetic mean, expressed as a percentage, of the offered rates (unless by
its terms such display provides for only a single rate, in which case a single
rate shall be used) for deposits in U.S. dollars for the Index Maturity which
appears on the display designated as "LIBO" on the Reuters Monitor Money Market
Rates Service (or such other page as may replace the LIBO page on that service
for the purpose of displaying London interbank offered rates of major banks)
("Reuters Screen LIBO Page") as of 11:00 a.m., London time, on such date. If, in
turn, at least two such rates are not displayed on the Reuters Screen LIBO Page
at such time (unless, as aforesaid, only a single rate is required), the
Calculation Agent will obtain from each of four reference banks in London
selected by the Calculation Agent ("Reference Banks") such bank's offered
quotation (expressed as a percentage per annum) as of approximately 11:00 a.m.,
London time, on such date for deposits in U.S. dollars to prime banks in the
London interbank market for the Index Maturity. If two or more such quotations
are provided as requested, then 3-Month LIBOR for such date shall be the
arithmetic average of such quotations. If, in turn, fewer than two such
quotations are provided as requested, then 3-Month LIBOR for such date will be
obtained from the preceding Market Day for which the Reuters Screen LIBO Page
displayed a rate for the Index Maturity.
(iii) If on any Determination Date, the Calculation Agent is required but
unable to determine 3-Month LIBOR in the manner provided in paragraphs (a) and
(b) above, 3-Month LIBOR for such Interest Period shall be 3-Month LIBOR as
determined on the previous Determination Date.
The term "Market Day" means any Business Day on which commercial banks
and foreign exchange markets are open for
6
business (including dealings in foreign exchange and foreign currency deposits)
in New York and London.
The term "Interest Period" means each period beginning on, and
including, January 31, 1997, and ending on, but excluding, the first Interest
Payment Date, and each successive period beginning on, and including, an
Interest Payment Date and ending on, but excluding, the next succeeding Interest
Payment Date.
The Interest Rate for any Interest Period will at no time be higher
than the maximum rate then permitted by New York law as the same may be modified
by United States law.
All percentages resulting from any calculations referred to in this
First Supplemental Indenture will be rounded, if necessary, to the nearest
multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from
such calculations will be rounded to the nearest cent (with one-half cent or
more being rounded upwards).
(c) The Calculation Agent shall, as soon as practicable after 11:00
a.m., London time, on each Determination Date, determine the Interest Rate and
inform the Trustee and the Paying Agent and, if any Debentures are held by the
Institutional Trustee, the Institutional Trustee. Unless otherwise provided by
the Trustee, the Paying Agent will calculate the amount of interest payable on
the Debentures in respect of the following Interest Period. The amount of
interest payable for any Interest Period will be computed on the basis of the
actual number of days in the applicable Interest Period divided by 360 and
rounding the resultant figure to the nearest cent (with one-half cent or more
being rounded upwards). The determination of the Interest Rate by the
Calculation Agent and the amount of interest payable by Paying Agent will (in
the absence of wilful default, bad faith or manifest error) be final, conclusive
and binding on all concerned. None of the Trustee, the Paying Agent, the
Calculation Agent, the Trust or the Company (or any of their respective
officers, directors, agents, beneficiaries, employees or affiliates) shall have
any liability to any person for (i) the selection of any Reference Bank or (ii)
any inability to retain major banks in the London interbank market, in the case
of the Calculation Agent, which is caused by circumstances beyond its reasonable
control.
(d) All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of
interest on the Debentures, whether by the Reference Banks (or any of them) or
the Calculation Agent, Trustee or Paying Agent, will (in the absence of wilful
default, bad faith or manifest error) be binding on the Trust, the Company, the
Trustee and all of the
7
holders of the Debentures, and no liability will (in the absence of wilful
default, bad faith or manifest error) attach to the Calculation Agent, Trustee
or Paying Agent in connection with the exercise or non-exercise by any of them
of their powers, duties and discretion.
(e) In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a 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 such date (each date on which interest is actually
payable, an "Interest Payment Date").
(f) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had the
Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other government charges as a result of such Tax Event. The
payment of such Additional Sums will be subject to the provisions of Section
5.04 of the Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 1 Tax Event or Capital Treatment Event Redemption.
-----------------------------------------------
If a Tax Event or a Capital Treatment Event has occurred and is
continuing then, notwithstanding Section 3.2(a) but subject to Section 3.2(c),
the Company shall have the right upon not less than 30 days nor more than 60
days notice to the Holders of the Debentures to redeem the Debentures, in whole,
but not in part, for cash within 90 days following the occurrence of such Tax
Event or Capital Treatment Event (or, if the approval of the Federal Reserve
Board is then required for such redemption, on such later date as promptly
practicable after such approval is obtained), (the "90 Day Period") at the
Redemption Price.
8
SECTION 2 Optional Redemption by Company.
------------------------------
(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article Four of the Indenture, except as otherwise may be specified in this
First Supplemental Indenture, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after February 1,
2007, at the Redemption Price. Any redemption pursuant to this paragraph will
be made upon not less than 30 days nor more than 60 days notice to the Holders
of the Debentures. If the Debentures are only partially redeemed pursuant to
this Section 3.2, the Debentures will be redeemed pro rata or by lot or by any
--- ----
other method utilized by the Securities Registrar; provided, that if at the time
--------
of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the principal
amount of such Debentures beneficially held by each Holder of Debentures to be
redeemed.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or Section
3.2 shall be subject to the Company obtaining the prior approval of the Federal
Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
SECTION 3 No Sinking Fund.
---------------
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 1 Extension of Interest Payment Period.
------------------------------------
Subject to Section 3.13 of the Indenture, the Company shall have the
right, at any time and from time to time during the term of the Debentures, to
defer payments of interest by extending the interest payment period of such
Debentures for an Extension Period not exceeding 20 consecutive quarters, during
which Extension Period no interest shall be due and payable; provided that no
-------- ----
Extension Period may end on a date other than an Interest Payment Date or extend
beyond the Maturity Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
9
payment period pursuant to this Section 4.1, will bear interest thereon at the
Interest Rate compounded quarterly for each quarter of the Extension Period
("Compounded Interest"). At the end of the Extension Period, the Company shall
pay all interest accrued and unpaid on the Debentures, including any Additional
Sums and Compounded Interest (together, "Deferred Interest") that shall be
payable to the Holders of the Debentures in whose names the Debentures are
registered in the Security Register on the record date relating to the Interest
Payment Date on which the Extension Period ends. Before the termination of any
Extension Period, the Company may further defer payments of interest by further
extending such period, provided that such period, together with all such
--------
further extensions thereof, shall not exceed 20 consecutive quarters, or extend
beyond the Maturity Date of the Debentures. Upon the termination of any
Extension Period and the payment of all Deferred Interest then due, the Company
may commence a new Extension Period, subject to the foregoing requirements.
No interest shall be due and payable during an Extension Period, except at the
end thereof.
SECTION 4 Notice of Extension.
-------------------
(a) If the Institutional Trustee is the only registered Holder of
the Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Regular Trustees, the Institutional Trustee and
the Trustee of its selection of such Extension Period at least one Business Day
before the earlier of (i) the next succeeding date on which Distributions on the
Trust Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to Holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under Section 4.1.
10
ARTICLE V
EXPENSES
SECTION 1 Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Debentures
to the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under
the Indenture in accordance with the provisions of Section 8.07 of the
Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
Section 2 Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee, unless otherwise stated,
the Company shall pay to the Trustee all amounts accrued under Section 8.07 of
the Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee,
11
as the case may be, all amounts accrued under said Sections to the date of such
termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 1 Form of Debenture.
-----------------
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures 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 Debenture (other than a
transfer of this Debenture 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 Debenture is presented by an authorized representative of
The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture 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 since the registered owner
hereof, Cede & Co., has an interest herein.]
No. ______________________ CUSIP No. _____________________
12
FIRST CHICAGO NBD CORPORATION
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE FEBRUARY 1, 2027
FIRST CHICAGO NBD CORPORATION, a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________ or
registered assigns, the principal sum of _____________ Dollars ($___________) on
February 1, 2027 and to pay interest on said principal sum from January 31,
1997, or from the most recent interest payment date to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on February 1, May 1, August 1 and November 1 of each year commencing
May 1, 1997, at the Interest Rate (as defined in the Indenture) until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, at the Interest Rate and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Interest Rate compounded quarterly. The
amount of interest payable on any Interest Payment Date (as defined below) shall
be calculated as provided in the Indenture. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
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 such date (each
date on which interest is actually payable, an "Interest Payment Date"). 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 Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close of
business on the first business day next preceding such Interest Payment Date.
[IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER
REPRESENTED BY A GLOBAL DEBENTURE, which shall be, except if the Debentures are
held by the Institutional Trustee, the close of business on the January 15,
April 15, July 15 and October 15 next preceding such Interest Payment Date, as
applicable.] Any such interest installment not punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name this Debenture
(or one or more Predecessor Securities) is registered at the close of business
on a special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be
13
given to the registered Holders of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
-------- -------
of interest may be made, at the option of the Company, by check
mailed to the registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder in writing not
less than ten days prior to the date of payment. Notwithstanding the foregoing,
so long as the Holder of this Debenture is the Institutional Trustee, the
payment of the principal of (and premium, if any) and interest on this Debenture
will be made at such place and to such account as may be designated by the
Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and General Obligations, and
this Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) 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 so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and creditor in respect of General
Obligations, whether now outstanding or hereafter incurred, and waives
reliance by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Trustee.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all
14
purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
FIRST CHICAGO NBD CORPORATION
By: __________________________________
Name:
Title: Chairman of the Board or
President
Attest:
By: __________________________________
Name:
Title: Secretary or Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By ____________________________
Authorized Officer
Dated _________________________
15
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Securities"), all issued or to be
issued in one or more series under and pursuant to an Indenture dated as of
January 1, 1997, duly executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of January 31, 1997, between the Company and the
Trustee (the Indenture as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities. By the terms of the Indenture, the Securities are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Indenture. This Security is one of the series
designated on the face hereof (the "Debentures") and is limited in aggregate
principal amount as specified in said First Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event or Capital
Treatment Event, the Company shall have the right, subject to certain conditions
set forth in the Indenture, to redeem this Debenture in whole, but not in part,
at the Redemption Price within 90 days following the occurrence of such Tax
Event or Capital Treatment Event (or, if the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") is then
required, on such later date as promptly as practicable after such approval is
obtained). In addition, the Company shall have the right to redeem this
Debenture, in whole or in part, at any time on or after February 1, 2007, at the
Redemption Price (any of the foregoing redemptions an "Optional Redemption").
The "Redemption Price" means an amount in cash equal to 100% of the principal
amount together with any accrued and unpaid interest thereon, including
Additional Sums and Compounded Interest, if any, to the date of such redemption.
Any redemption pursuant to this paragraph will be made upon not less than 30
days nor more than 60 days notice. If the Debentures are only partially
redeemed by the Company pursuant to an Optional Redemption, the Debentures will
be redeemed pro rata or by lot or by any other method utilized by the Securities
--- ----
Registrar; provided that if, at the time of redemption, the Debentures are
registered as a Global Debenture, the Depositary shall determine the principal
amount of such Debentures beneficially held by each Debentureholder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion
16
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
Notwithstanding the foregoing, any redemption of Debentures by the
Company shall be subject to the prior approval of the Federal Reserve, if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series
affected (acting as one class), to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities; provided,
however, that no such supplemental indenture shall (i) change the Maturity of
the principal of, or the Stated Maturity of any installment of interest (or
premium, if any) on, any Security, or reduce the principal amount thereof or any
premium thereon or the rate of interest thereon, or change the obligations of
the Company to pay additional amounts pursuant to Section 5.04 of the Indenture,
or to reduce the amount of principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof, or change the method of calculating interest thereon or the coin or
currency in which any Security (or premium, if any, thereon) or the interest
thereon is payable, or reduce the minimum rate of interest thereon, or impair
the right to insti tute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption or repayment,
on or after the Redemption Date or Repayment Date); or (ii) reduce the
percentage in principal amount of the Outstanding Securities of any series, the
Holders of which are required to consent to any such supplemental indenture or
to waive certain defaults thereunder and their consequences provided for in the
Indenture or to reduce the requirements of the Indenture for a quorum at
meetings of Holders of Securities; or (iii) change the obligations of the
Company to maintain certain offices or agencies as required by the Indenture;
or (iv) modify any of the provisions of the Indenture relating to supplemental
indentures or the waiver of defaults, except to increase any such percentage or
to provide that certain other provisions of the Indenture cannot be modified or
waived, without the consent of the Holders of each Security then outstanding and
affected thereby. The
17
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series affected
thereby, on behalf of all of the Holders of the Securities of such series, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of, premium, if any, or interest on any of the Securities of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture 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 Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 20 consecutive quarters (an
"Extension Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the Interest
Rate to the extent that payment of such interest is enforceable under applicable
law); provided that no Extension Period may end on a day other than an Interest
-------- ----
Payment Date or last beyond the Maturity Date of the Debentures. Before the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters or extend
beyond the Maturity Date of the Debentures. Upon the termination of any such
Extension Period and the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
During any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (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, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu in all respects with or junior in interest
to the Debentures or make any
18
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company that by their terms rank pari passu
in all respects with or junior in interest to the Debentures (other than (a)
dividends or distributions in Common Stock, (b) any declaration of a dividend in
connection with the implementation of a Rights Plan, the issuance of any Common
Stock of any class or series of preferred stock of the Company under any Rights
Plan or the repurchase of any rights distributed pursuant to a Rights Plan, (c)
payments under any FCN Guarantee which is for the benefit of the holders of
Preferred Securities or Common Securities issued by the Trust, (d) purchases of
Common Stock related to the issuance of Common Stock under any of the Company's
benefit plans for its directors, officers or employees and (e) obligations under
any dividend reinvestment and stock purchase plan).
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Company will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York or the City of Chicago, Illinois accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Securities Registrar duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to Section 3.07 of the Indenture) interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
19
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures so issued are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof.] As provided in the Indenture and subject to
certain limitations herein and therein set forth, Debentures of this series [so
issued] are exchangeable for a like aggregate principal amount of Debentures of
a different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 1 Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $257,732,000 may,
upon execution of this First Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication as provided in Sections 3.01 and
3.03 of the Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 1 Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and
20
this First Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 2 Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 3 Governing Law.
-------------
This First Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 4 Separability.
------------
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 5 Counterparts.
------------
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
21
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
FIRST CHICAGO NBD CORPORATION
By __________________________________________
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer and Senior Vice President
Attest:
By:________________________
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By ____________________________________________
Name:
Title:
Attest:
By:_________________________
22