Exhibit 4.5
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FIRST SUPPLEMENTAL INDENTURE
between
NATIONAL CITY CORPORATION
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE, dated as of (this "Supplemental Indenture"),
between NATIONAL CITY CORPORATION, a Delaware corporation (hereinafter called
the "Company"), having its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and THE BANK OF NEW YORK TRUST COMPANY, N.A., a
Delaware banking corporation, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have entered into that certain Junior
Subordinated Indenture, dated as of November 3, 2006 (the "Indenture"),
providing for the issuance from time to time of Securities (as defined in the
Indenture);
WHEREAS, Section 9.1 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any Holder of any Securities to establish the form or terms of Securities of
any series as permitted by Section 2.1 or 3.1 of the Indenture;
WHEREAS, pursuant to Sections 2.1 and 3.1 of the Indenture, the Company
desires to provide for the establishment of a new series of Securities under the
Indenture to be known as its Income Capital Obligation Notes(SM), the form and
substance of such Securities and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this Supplemental Indenture;
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of this Supplemental Indenture have been satisfied; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
agreement of the Company and the Trustee, in accordance with its terms, and a
valid amendment of, and supplement to, the Indenture have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities of the series established by this Supplemental Indenture by the
Holders thereof from time to time on or after the date hereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all such
Holders, that the Indenture is supplemented and amended, to the extent and for
the purposes expressed herein, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. For all purposes of this Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires, (i)
references to any Article, Section or subdivision hereof are references to an
Article, Section or other subdivision of this
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(SM) Income Capital Obligation Notes is a service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
Inc.
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Supplemental Indenture and (ii) capitalized terms not otherwise defined herein
shall have the meanings set forth in the Indenture.
SECTION 1.2. In addition, the following terms used in this Supplemental
Indenture have the following respective meanings:
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the ICONs the payment of which has not been made on the applicable
Interest Payment Date and which shall accrue at the rate per annum specified or
determined as specified in the ICONs from the applicable Interest Payment Date.
"Alternative Payment Mechanism" has the meaning specified in Section
2.1(h).
"APM Maximum Obligation" has the meaning set forth in Section 2.1(h)(vi).
"Bankruptcy Event" means any of the events set forth in Section 5.1(2),
(3), and (4) of the Indenture.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office or the principal offices of the Property Trustee under
the Trust Agreement is closed for business.
"Calculation Agent" means The Bank of New York Trust Company, N.A., or any
other firm appointed by the Company, acting as calculation agent for the ICONs.
"Common Stock" means the common stock of the Company, par value $4.00 per
share.
"Company" has the meaning set forth in the first paragraph hereof.
"Current Stock Market Price" of the Common Stock on any date shall mean (a)
the closing sale price per share (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on that date as reported
in composite transactions by the New York Stock Exchange or, if the Common Stock
is not then listed on the New York Stock Exchange, as reported by the principal
U.S. securities exchange or The Nasdaq Global Select Market on which the Common
Stock is traded or quoted, (b) if the Common Stock is not either listed on any
U.S. securities exchange or quoted on The Nasdaq Global Select Market on the
relevant date, the last quoted bid price for the Common Stock in any other
securities market or in the over-the-counter market on the relevant date as
reported by the National Quotation Bureau or similar organization, or (c) if the
Common Stock is not so quoted, the average of the mid-point of the last bid and
ask prices for the Common Stock on the relevant date from each of at least three
nationally recognized independent investment banking firms selected by the
Company for this purpose.
"Debt Exchangeable into Equity" has the meaning assigned to such term in
the Replacement Capital Covenant.
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"Deferred Interest" means as of any particular time, accrued interest that
was not paid on the applicable Interest Payment Date or at any time thereafter
and that has not been cancelled pursuant to Section 2.1(m).
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event with respect to the Trust, the Trust is to be
dissolved in accordance with the Trust Agreement.
"Eligible Equity" means Qualified Warrants or shares of the Company's
Common Stock (including treasury shares, employee stock purchase plan and shares
of Common Stock sold pursuant to the Company's dividend reinvestment plan and
employee benefit plans).
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Fifth Deferral Anniversary" means the date which is five (5) years after
the date of commencement of an Optional Deferral Period, if on such date such
Optional Deferral Period has not ended.
"Final Maturity Date" has the meaning set forth in Sections 2.1(d)(ii).
"Guarantee" has the meaning set forth in Section 2.1(a).
"ICONs" has the meaning set forth in Section 2.1(a).
"Indenture" has the meaning set forth in the first paragraph of the
Recitals hereof.
"Interest Payment Date" means a Quarterly Interest Payment Date or a
Monthly Interest Payment Date, as the case may be.
"Interest Period" means the period from and including any Interest Payment
Date (or, in case of the first Interest Payment Date, November 3, 2006) to but
excluding the next Interest Payment Date.
"Investment Company Event" means the receipt by the Company and the Trust
of an opinion of an independent counsel experienced in matters relating to
investment companies (which opinion shall not have been rescinded), to the
effect that, as a result of any change (including any announced proposed change)
in the laws or any regulations, or interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority that is announced after the initial issuance of the Capital
Securities, there is more than an insubstantial risk that the Trust is or will
be considered an "investment company" that is required to be registered under
the Investment Company Act of 1940.
"Market Disruption Event" means the occurrence or existence of any of the
following events or sets of circumstances:
(1) (a) in connection with any proposed sale of Common Stock or
Qualified Warrants for the purpose of paying Deferred Interest on the
ICONs, the Company would be required to obtain the consent or approval of
its shareholders or a regulatory body
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(including, without limitation, any securities exchange or market, but
excluding the Federal Reserve) or governmental authority to issue or sell
shares of its Common Stock, and the Company fails to obtain such consent or
approval notwithstanding the Company's commercially reasonable efforts to
obtain such consent or approval;
(b) in connection with any proposed sale of Qualifying Securities for
the purpose of repaying principal on the ICONs, the Company would be
required to obtain the consent or approval of its shareholders or a
regulatory body (including, without limitation, any securities exchange or
market) or governmental authority to issue or sell such Qualifying
Securities, and the Company fails to obtain such consent or approval
notwithstanding the Company's commercially reasonable efforts to obtain
such consent or approval (including, without limitation, failing to obtain
approval for such issuance if required from the Federal Reserve after
having given notice to the Federal Reserve as required pursuant to Section
2.1(i)(iv));
(2) trading in securities generally on the principal exchange or
market on which the Company's securities are listed and traded shall have
been suspended or materially disrupted or minimum prices shall have been
established on any such exchange or market by the Commission, by the
relevant exchange or any other regulatory body or governmental authority
having jurisdiction (other than with respect to applicable listing
requirements, if any);
(3) an event occurs and is continuing as a result of which the
offering document for such offer and sale of the Company's Common Stock
would, in the judgment of the Company, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
either (i) the disclosure of that event at such time, in the judgment of
the Company, would have a material adverse affect on the Company's business
or (ii) the disclosure relates to a previously undisclosed proposed or
pending material development or business transaction, and the Company has a
bona fide business reason for keeping the same confidential or the
disclosure of which would impede the Company's ability to consummate such
transaction, provided that no single suspension period contemplated by this
paragraph (3) may exceed 90 consecutive days and multiple suspension
periods contemplated by this paragraph (3) may not exceed an aggregate of
180 days in any 360-day period;
(4) the Company reasonably believes that the offering document for
such offer and sale of its Common Stock would not be in compliance with a
rule or regulation of the Commission (for reasons other than those referred
to in paragraph (3) above) and the Company is unable to comply with such
rule or regulation or such compliance is impracticable, provided that no
single suspension contemplated by this paragraph (4) may exceed 90
consecutive days and multiple suspension periods contemplated by this
paragraph (4) may not exceed an aggregate of 180 days in any 360-day
period;
(5) there is a material adverse change in general domestic or
international economic, political or financial conditions, including,
without limitation, as a result of terrorist activities, or the effect of
international conditions on the financial markets in the
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▇▇▇▇▇▇ ▇▇▇▇▇▇, such as to make it impossible to proceed with the offer and
sale of the Company's Common Stock;
(6) a material disruption shall have occurred in commercial banking or
securities settlement or clearing services in the United States; or
(7) a banking moratorium shall have been declared by United States
federal or state authorities.
"Market Disruption Event Notice" has the meaning set forth in Section
2.1(i)(i).
"Mandatorily Convertible Preferred Stock" has the meaning assigned to such
term in the Replacement Capital Covenant.
"Monthly Interest Payment Date" has the meaning set forth in Section
2.1(e).
"New Equity Amount" means, as of any date, (i) the net cash proceeds (after
underwriters' or placement agents' fees, commissions or discounts and other
expenses relating to the issuances), plus (ii) the fair market value of
property, other than cash, received by the Company or any of its subsidiaries
during the 180-day period immediately prior to such date, from one or more sales
to Persons other than the Company's subsidiaries of (A) the Company's Common
Stock, including treasury shares and shares of Common Stock sold pursuant to the
Company's dividend reinvestment plan, employee stock purchase plan and employee
benefit plans and (B) the Company's Qualified Warrants that the Company sells at
its sole discretion.
"One-Month LIBOR" means, with respect to any Interest Period beginning on
or after the Scheduled Maturity Date, the rate (expressed as a percentage per
annum) for deposits in U.S. dollars for a one-month period commencing on the
first day of that monthly interest period that appears on the MoneyLine Telerate
Page as of 11:00 a.m. (London time) on the LIBOR Determination Date for that
Interest Period. If such rate does not appear on MoneyLine Telerate Page,
One-Month LIBOR will be determined on the basis of the rates at which deposits
in U.S. dollars for a one-month period commencing on the first day of that
Interest Period and in a principal amount of not less than $1,000,000 are
offered to prime banks in the London interbank market by four major banks in the
London interbank market selected by the Calculation Agent (after consultation
with the Company), at approximately 11:00 a.m., London time on the LIBOR
Determination Date for that Interest Period. The Calculation Agent will request
the principal London office of each of such banks to provide a quotation of its
rate. If at least two such quotations are provided, One-Month LIBOR with respect
to that Interest Period will be the arithmetic mean (rounded upward if necessary
to the nearest whole multiple of 0.00001%) of such quotations. If fewer than two
quotations are provided, One-Month LIBOR with respect to that Interest Period
will be the arithmetic mean (rounded upward if necessary to the nearest whole
multiple of 0.00001%) of the rates quoted by three major banks in New York City
selected by the Calculation Agent, at approximately 11:00 a.m., New York City
time, on the first day of that Interest Period for loans in U.S. dollars to
leading European banks for a one-month period commencing on the first day of
that Interest Period and in a principal amount of not less than $1,000,000.
However, if fewer than three banks selected by the Calculation Agent to provide
quotations are quoting as described above, One-Month LIBOR for that Interest
Period
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will be the same as One-Month LIBOR as determined for the previous Interest
Period or, in the case of the Interest Period commencing on the Scheduled
Maturity Date, 6.625%. The establishment of one-month LIBOR for each Interest
Period commencing on or after the Scheduled Maturity Date by the Calculation
Agent shall (in the absence of manifest error) be final and binding. For
purposes of this definition, "London Banking Day" means any day on which
commercial banks are open for general business (including dealings in deposits
in U.S. dollars) in London, England; "LIBOR Determination Date" means the second
London banking day immediately preceding the first day of the relevant Interest
Period; "MoneyLine Telerate Page" means the display on MoneyLine Telerate, Inc.,
or any successor service, on the Telerate Page 3750 or any replacement page or
pages on that service; and "Telerate Page 3750" 'means the display designated
on page 3750 on MoneyLine Telerate (or such other page as may replace the page
3750 on that service or such other service as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. Dollar deposits).
"Optional Deferral Period" means each period beginning on an Interest
Payment Date with respect to which the Company elects pursuant to Section 2.1(g)
to defer all or part of any interest payment payable on such date and ending on
the earlier of (a) the tenth anniversary of such Interest Payment Date and (b)
the next Interest Payment Date on which the Company has paid all Deferred
Interest (including Additional Interest thereon).
"Pari Passu Securities" means (a) indebtedness that, among other things,
(1) qualifies as, or is issued to financing vehicles issuing securities that
qualify as, Tier 1 capital of the Company at the time of issuance under the
capital guidelines of the Federal Reserve and (2) by its terms ranks equally
with the ICONs in right of payment or upon liquidation; and (b) guarantees of
indebtedness described in clause (a) or securities issued by one or more
financing vehicles described in clause (a). "Pari Passu Securities" does not
include the Company's junior subordinated debentures or guarantees issued in
connection with the outstanding trust preferred securities issued by Fort ▇▇▇▇▇
Capital Trust I, First of America Capital Trust I, Provident Capital Trust I,
Banc Services Corp. Statutory Trust I, and Forbes First Financial Statutory
Trust I and in connection with any future issuances or assumptions by us as a
result of mergers, acquisitions or otherwise of any obligations under any
traditional trust preferred securities, each of which will rank senior to the
capital securities being issued by National City Capital Trust II.
"Preferred Stock" means non-cumulative perpetual preferred stock of the
Company.
"Qualifying Capital Securities" has the meaning assigned to such term in
the Replacement Capital Covenant.
"Qualifying Securities" means Common Stock and rights to acquire Common
Stock, Mandatorily Convertible Preferred Stock, Debt Exchangeable into Equity
and Qualifying Capital Securities.
"Qualified Warrants" means any Common Stock warrants that (a) have an
exercise price per share greater than the then Current Stock Market Price of the
Company's Common Stock and (b) the Company is not entitled to redeem for cash
and that does not provide the holders thereof
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with any right to require the Company to repurchase such warrants for cash under
any circumstance.
"Quarterly Interest Payment Date" has the meaning set forth in Section
2.1(e).
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the ICONs means (i) in the case of ICONs represented by one or
more Global Securities, the Business Day preceding such Interest Payment Date
and (ii) in the case of ICONs not represented by one or more Global Securities,
the date which is fifteen days next preceding such Interest Payment Date
(whether or not a Business Day).
"Regulatory Capital Event" means the reasonable determination by the
Company that, as a result of: (1) any amendment to, or change (including any
prospective change) in, the laws or any applicable regulation of the United
States or any political subdivision that is enacted or becomes effective after
the initial issuance of the Capital Securities; or (2) any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which is effective or announced on or after
the initial issuance of the Capital Securities, there is more than an
insubstantial risk of impairment of the Company's ability to treat the Capital
Securities (or any substantial portion thereof) as Tier 1 capital (or its then
equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve in effect and applicable to the Company.
"Repayment Date" means the Scheduled Maturity Date and each Monthly
Interest Payment Date thereafter until the Company shall have repaid or redeemed
all of the ICONs.
"Replacement Capital Covenant" means the Replacement Capital Covenant,
dated as of November 3, 2006, of the Company, as the same may be amended or
supplemented from time to time in accordance with the provisions hereof and
thereof.
"Share Cap Amount" has the meaning specified in Section 2.1(h)(iii).
"Scheduled Maturity Date" has the meaning set forth in Section 2.1(d)(i).
"Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event.
"Supervisory Event" shall commence upon the date on which the Company has
given notice to the Federal Reserve of its intention both (1) to sell shares of
its Common Stock and (2) to apply the net proceeds from such sale to pay
Deferred Interest (including Additional Interest thereon), and the Federal
Reserve has disapproved either of these actions. A Supervisory Event shall cease
on the Business Day following the earlier to occur of (A) the Tenth Deferral
Anniversary or (B) the day on which the Federal Reserve notifies the Company in
writing that it no longer disapproves of the Company's intention both (1) to
sell Common Stock and (2) to apply the net proceeds from such sale to pay
Deferred Interest (including Additional Interest thereon); provided, however,
that after the termination of a Supervisory Event, if the Federal Reserve shall
at any time prior to the Tenth Deferral Anniversary disapprove of the Company
(1) selling Common Stock and (2) applying the net proceeds from such sale to pay
Deferred Interest (including Additional Interest thereon), a Supervisory Event
shall recommence.
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"Supervisory Event Notice" has the meaning set forth in Section 2.1(i)(ii).
"Supplemental Indenture" has the meaning set forth in the first paragraph
hereof.
"Tax Event" means the receipt by the Company or the Trust of an opinion of
counsel (which may be the Company's counsel or counsel of an Affiliate but not
an employee and must be reasonably acceptable to the Property Trustee)
experienced in tax matters stating that, as a result of any (1) amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority affecting taxation that is enacted or becomes effective after
the initial issuance of the Capital Securities; or (2) interpretation or
application of such laws as are described in the immediately preceding clause
(1) or regulations by any court, governmental agency or regulatory authority
that is announced after the initial issuance of the Capital Securities, there is
more than an insubstantial risk that (a) the Trust is, or will be within 90 days
of the date of such opinion, subject to United States federal income tax with
respect to interest received on the ICONs; (b) interest payable by the Company
to the Trust on the ICONs is not, or within 90 days of the date of such opinion
will not be, deductible, in whole or in part, by the Company, for United States
federal income tax purposes; or (c) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a minimal amount of other taxes,
duties, assessments or other governmental charges.
"Tenth Deferral Anniversary" means the date which is ten (10) years after
the date of commencement of an Optional Deferral Period, if on such date such
Optional Deferral Period has not ended.
"Trust" has the meaning set forth in Section 2.1(a).
"Trust Agreement" has the meaning set forth in Section 2.1(a).
"Trustee" has the meaning set forth in the first paragraph hereof.
ARTICLE II
TERMS OF SERIES OF SECURITIES
SECTION 2.1. Pursuant to Sections 2.1 and 3.1 of the Indenture, there is
hereby established a series of Securities, the terms of which shall be as
follows:
(a) Designation. The Securities of this series shall be known and
designated as the "Series A Income Capital Obligation Notes(SM)" of the
Company (the "ICONs"). The ICONs initially shall be issued to National City
Capital Trust II, a Delaware statutory trust (the "Trust") governed
pursuant to an Amended and Restated Trust Agreement, dated as of November
3, 2006, among the Company, as Depositor, The Bank of New York Trust
Company, N.A., as Property Trustee, the Bank of New York (Delaware), as
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(SM) Income Capital Obligation Notes is a service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
Inc.
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Delaware Trustee, and the Administrative Trustees named therein (the "Trust
Agreement"). The Guarantee will be issued pursuant to the Guarantee
Agreement, dated as of November 3, 2006 (the "Guarantee"), between the
Company and The Bank of New York Trust Company, N.A., as Guarantee Trustee.
(b) Issue Price and Aggregate Principal Amount. The ICONs shall be
issued at a price of $25.00 per ICON, and the maximum aggregate principal
amount of the ICONs which may be authenticated and delivered under the
Indenture and this Supplemental Indenture is $863,500,000.00 (except for
ICONs authenticated and delivered upon registration of transfer of, or
exchange for, or in lieu of, other ICONs pursuant to (i) Section 3.4, 3.5,
3.6, 9.6 or 11.6 of the Indenture or (ii) Article III of this Supplemental
Indenture).
(c) Denominations. The ICONs will be issued only in fully registered
form, and the authorized denominations of the ICONs shall be $25.00 and any
integral multiple thereof.
(d) Scheduled Maturity Date. (i) The principal amount of, and all
accrued and unpaid interest on, the ICONs shall be payable in full on
November 15, 2036, or, if such a day is not a Business Day, the following
Business Day (the "Scheduled Maturity Date"); provided that in the event
the Company has delivered an Officers' Certificate to the Trustee pursuant
to clause (vii) of this Section 2.1(d) in connection with the Scheduled
Maturity Date, (A) the principal amount of ICONs payable on the Scheduled
Maturity Date, if any, shall be the principal amount set forth in the
notice of repayment accompanying such Officers' Certificate, (B) such
principal amount of ICONs shall be repaid on the Scheduled Maturity Date
pursuant to Article III, and (C) subject to clause (ii) of this Section
2.1(d), the remaining ICONs shall remain outstanding and shall be payable
on the immediately succeeding Monthly Interest Payment Date or such earlier
date on which they are redeemed pursuant to Section 2.1(k) or shall become
due and payable pursuant to Section 5.2 of the Indenture.
(ii) In the event the Company has delivered an Officers'
Certificate to the Trustee pursuant to clause (vii) of this Section
2.1(d) in connection with any Monthly Interest Payment Date, the
principal amount of ICONs payable on such Monthly Interest Payment
Date shall be the principal amount set forth in the notice of
repayment, if any, accompanying such Officers' Certificate, such ICONs
shall be repaid on such Monthly Interest Payment Date pursuant to
Article III, and the remaining ICONs shall remain outstanding and
shall be payable on the immediately succeeding Monthly Interest
Payment Date or such earlier date on which they are redeemed pursuant
to Section 2.1(k) or shall become due and payable pursuant to Section
5.2 of the Indenture.
(iii) If not earlier paid pursuant to clause (i) or (ii) of this
Section 2.1(d) redeemed, the principal of, and all accrued and unpaid
interest on, all outstanding ICONs, shall be due and payable on
November 15, 2066, or if such a day is not a Business Day, the
following Business Day (the "Final Maturity Date").
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(iv) The obligation of the Company to repay the ICONs pursuant to
this Section 2.1(d) on any date prior to the Final Maturity Date shall
be subject to (A) its obligations under Article XIII of the Indenture
to the holders of Senior Indebtedness and (B) its obligations under
Section 2.1(h) with respect to the payment of Deferred Interest
(including Additional Interest thereon) on the ICONs.
(v) Until the ICONs are paid in full, the Company shall use its
"commercially reasonable efforts" (as defined in clause (vi) below),
subject to a Market Disruption Event: (A) to raise sufficient net
proceeds from the issuance of Qualifying Securities during a 180-day
period ending on a notice date, not more than 15 and not less than 10
Business Days prior to the Scheduled Maturity Date, on which the
Company delivers the notice required by Section 3.1 to permit
repayment of the ICONs in full on the Scheduled Maturity Date pursuant
to clause (i) of this Section 2.1(d); and (B) if the Company is unable
for any reason to raise sufficient proceeds from the issuance of
Qualifying Securities to permit payment in full on the Scheduled
Maturity Date or any subsequent Monthly Interest Payment Date on which
the Company delivers the notice required by Section 3.1, to raise
sufficient net proceeds from the issuance of Qualifying Capital
Securities to permit repayment of the ICONs in full on such date
pursuant to clause (ii) of this Section 2.1(d); and the Company shall
apply any such net proceeds to the repayment of the ICONs as provided
in clause (vii) of this Section 2.1(d).
(vi) For purposes of this Section 2.1(d), "commercially
reasonable efforts" on the Company's part to sell Qualifying
Securities means commercially reasonable efforts on the part of the
Company to complete the offer and sale of Qualifying Securities to
third parties other than Subsidiaries in public offerings or private
placements. The Company shall not be considered to have used
commercially reasonable efforts to effect a sale of Qualifying
Securities if it determines not to pursue or complete such sale due to
pricing considerations.
(vii) The Company shall, if it has not raised sufficient net
proceeds from the issuance of Qualifying Capital Securities pursuant
to clause (v) above in connection with any Repayment Date, deliver an
Officers' Certificate to the Trustee, who shall forward such
certificate to each holder of record of the ICONs no more than 15 and
no less than 10 Business Days in advance of such Repayment Date
stating the amount of net proceeds, if any, raised pursuant to clause
(vi) above in connection with such Repayment Date. The Company shall
be excused from its obligation to use commercially reasonable efforts
to sell Qualifying Capital Securities pursuant to clause (vi) above if
such Officers' Certificate further certifies that: (A) a Market
Disruption Event was existing during the 180-day period preceding the
date of such Officers' Certificate or, in the case of any Repayment
Date after the Scheduled Maturity Date, the 30-day period preceding
the date of such Officers' Certificate; and (B) either (1) the Market
Disruption Event continued for the entire 180-day period or 30-day
period, as the case may be, or (2) the Market Disruption Event
continued for only
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part of the period, but the Company was unable after commercially
reasonable efforts to raise sufficient net proceeds during the rest of
that period to permit repayment of the ICONs in full. Each Officers'
Certificate delivered pursuant to this clause (vii), unless no
principal amount of ICONs is to be repaid on the applicable Repayment
Date, shall be accompanied by a notice of repayment pursuant to
Section 3.1 setting forth the principal amount of the ICONs to be
repaid on such Repayment Date, which amount shall be determined after
giving effect to this clause (vii) of this Section 2.1(d).
(vii) Net proceeds of the issuance of any Qualifying Capital
Securities that the Company is permitted to apply to repayment of the
ICONs on any Repayment Date will be applied, first, to pay Deferred
Interest (including Additional Interest thereon) to the extent of the
Net Equity Amount under the Alternative Payment Mechanism, second, to
pay current interest to the extent not paid from other sources and,
third, to repay the principal of ICONs, subject to a minimum principal
amount of $5,000,000 to be repaid on any Repayment Date; provided that
if the Company is obligated to sell Qualifying Capital Securities and
apply the net proceeds to payments of principal of or interest on any
outstanding securities in addition to the ICONs, then on any date and
for any period the amount of net proceeds received by the Company from
those sales and available for such payments shall be applied to the
ICONs and those other securities having the same Scheduled Maturity
Date as the ICONs pro rata in accordance with their respective
outstanding principal amounts and none of such net proceeds shall be
applied to any other securities having a later Scheduled Maturity Date
until the principal of and all accrued and unpaid interest on the
ICONs has been paid in full.
(e) Rate of Interest. The ICONs shall bear interest (i) from and
including November 3, 2006 to but excluding the Scheduled Maturity Date, at
an annual rate of 6.625%, computed on the basis of a 360-day year comprised
of twelve 30-day months; provided that the amount of interest for any
period shorter than a full quarterly period will be computed on the basis
of a 30-day month and, for periods of less than a month, the actual number
of days elapsed over a 360-day year, and (ii) on and after the Scheduled
Maturity Date, as to any unpaid amounts that remain outstanding, at an
annual rate equal to One-Month LIBOR plus 2.290%, until repaid as described
under Article III herein, computed on the basis of a 360-day year and the
actual number of days elapsed. The applicable interest rate for each
monthly interest period will be set on the last day of each calendar month,
and will be set for the first monthly interest period on November 15, 2036
(each such date, an "Interest Reset Date"). The applicable interest rate
for each monthly interest period will be determined on the "LIBOR
Determination Date." Subject to Sections 2.1(g) and (h), interest on the
ICONs shall be payable (i) quarterly in arrears on November 15, February
15, May 15 and August 15 of each year, commencing November 3, 2006 until
the Scheduled Maturity Date, or if such day is not a Business Day, the
following Business Day (each such date, a "Quarterly Interest Payment
Date") and (ii) thereafter, monthly in arrears on the last day of each
month, or if such day is not a Business Day, the Business Day immediately
preceding such Business Day (each such date, a "Monthly Interest Payment
Date").
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Interest payments on the ICONs not paid when due will themselves
accrue Additional Interest at an annual rate equal to the annual interest
rate applicable to the ICONs at such time, compounded (1) quarterly during
any period prior to the Scheduled Maturity Date and (2) monthly during any
period beginning on or after the Scheduled Maturity Date, in each case to
the extent permitted by applicable law.
(f) To Whom Interest Payable. Interest will be payable to the person
in whose name the ICONs are registered at the close of business on the
Regular Record Date next preceding the Interest Payment Date, except that,
interest payable on (i) any ICONs pursuant to their repayment in full in
accordance with Article III and (ii) interest payable on the Final Maturity
Date shall be paid to the Person to whom principal is paid.
(g) Option to Defer Interest Payments. Section 3.11 of the Indenture
shall not apply to the ICONs, which shall be governed by the following
provisions.
(i) The Company shall have the right, at any time and from time
to time prior to the Final Maturity Date of the ICONs, to defer the
payment of interest thereon for one or more Optional Deferral Periods
consisting of no more than 20 consecutive quarters, or five
consecutive years, without becoming subject to the obligations to
issue Eligible Equity and pay Deferred Interest pursuant to Section
2.1(h) of this Supplemental Indenture. The Company shall also have the
right, at any time and from time to time prior to the Final Maturity
Date of the ICONs, to defer payment of interest thereon for one or
more Optional Deferral Periods consisting of no more than a total of
ten years without giving rise to an Event of Default under Section
2.1(j). During the Optional Deferral Period, any Deferred Interest on
the ICONs will accrue Additional Interest at an annual rate equal to
the annual interest rate applicable to the ICONs at such time,
compounded (1) quarterly during any period prior to the Scheduled
Maturity Date and (2) monthly during any period beginning on or after
the Scheduled Maturity Date, in each case to the extent permitted by
applicable law. No interest then applicable will be due and payable on
the ICONs until the end of the Optional Deferral Period except upon a
redemption of the ICONs during a deferral period. The Company may
elect to so defer payment of interest by delivering to the Trustee
written notice of such election at least ten and not more than 15
Business Days prior to the applicable Interest Payment Date.
Notwithstanding the foregoing, no Optional Deferral Period shall
extend beyond the Final Maturity Date or, if earlier, the redemption
or repayment in full of the ICONS.
(ii) During any Optional Deferral Period, the Company shall not,
and shall not permit any Subsidiary of the Company to, (1) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the Company's
capital stock (which includes Common and Preferred Stock), (2) make
any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company
(including other Income Capital Obligation Notes or other junior
subordinated debt of the Company) that rank pari passu with or junior
in interest to the ICONs or (3) make any Guarantee payments with
respect to any Guarantee by the
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Company of the debt securities of any Subsidiary of the Company
(including under other Income Capital Obligation Notes or other junior
subordinated debt of the Company) if such Guarantee ranks pari passu
with or junior in interest to the ICONs, other than in the case of
each of clauses (1), (2) and (3): (A) any dividends or distributions
in additional shares of the Company's capital stock (which includes
Common and Preferred Stock), (B) any payments under the Guarantee with
respect to the Capital Securities and common securities of the Trust,
(C) any declaration or payment of a dividend in connection with the
implementation of a shareholders' rights plan, or any issuance of
stock under any such plan in the future or the redemption or
repurchase of any such rights pursuant thereto, and (D) any 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.
(iii) Upon the payment of all Deferred Interest (including any
Additional Interest thereon) then due on the ICONs (that has not been
cancelled), the Company may elect to begin a new Optional Deferral
Period, which shall not extend beyond the Final Maturity Date or, if
earlier, the redemption or repayment in full of the ICONs. At the end
of ten consecutive years of a Optional Deferral Period, the Company
shall pay all Deferred Interest (including Additional Interest
thereon) on the ICONs that has not been cancelled to the extent
permitted by applicable law, to the Persons in whose names the ICONs
are registered at the close of business on the Regular Record Date
with respect to the Interest Payment Date at the end of such Optional
Deferral Period.
(iv) Subject to Section 2.1(h)(vi), in the case of any Optional
Deferral Period that does not terminate on or prior to the first
anniversary of the commencement of such Optional Deferral Period, the
restrictions set forth in Section 2.1(g)(ii) shall continue in effect
in respect of any redemption, purchase or repurchase, acquisition or
liquidation payment of the Company's securities that rank pari passu
with or junior in interest to the ICONs until the first anniversary of
the termination of such Optional Deferral Period, unless any such
redemption or repurchase is required by Federal Reserve.
(h) Alternative Payment Mechanism; Payment of Deferred Interest. (i)
Commencing on the earlier of (i) the Fifth Deferral Anniversary, if on such
date the related Optional Deferral Period has not ended, and (ii) the date
of any payment of current interest on the Securities during an Optional
Deferral Period, if any Deferred Interest (including Additional Interest
thereon) is outstanding, the Company shall be subject to the "Alternative
Payment Mechanism," pursuant to which it will continuously use its
commercially reasonable efforts to effect sales of shares of its Common
Stock, including treasury shares, in an amount that will generate
sufficient net proceeds to enable the Company to pay in full all Deferred
Interest(including Additional Interest thereon) on the Securities then
outstanding; provided that the Company shall not be obligated to make
offers for or effect sales of its Common Stock during the occurrence and
continuation of a Market Disruption Event or a Supervisory Event and will
be permitted to pay Deferred Interest (including Additional Interest
thereon) using cash from
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any source upon the occurrence of a Supervisory Event. The Company's
obligation to use commercially reasonable efforts to sell shares of its
Common Stock to pay all Deferred Interest (including Additional Interest
thereon) on the ICONs shall resume at such time as no Market Disruption
Event or Supervisory Event exists or is continuing.
(ii) As used in this Section 2.1(h), the term "commercially
reasonable efforts" means commercially reasonable efforts on the part
of the Company to complete the sale of shares of its Common Stock,
including treasury shares, to third parties that are not subsidiaries
of the Company in public offerings and private placements. The Company
will not be considered to have used its commercially reasonable
efforts to effect a sale of stock if it determines not to pursue or
complete such sale solely due to pricing considerations.
(iii) The Company is not permitted to sell shares of Common Stock
in excess of a number of shares of Common Stock which at November 3,
2006 is equal to 100,000,000 (the "Share Cap Amount"), for the purpose
of satisfying Section 2(h)(i) or otherwise paying Deferred Interest
(including Additional Interest thereon) on the Securities then
outstanding. If the issued and outstanding shares of Common Stock
shall have been changed into a different number of shares or a
different class by reason of any stock split, reverse stock split,
stock dividend, reclassification, recapitalization, split-up,
combination, exchange of shares or other similar transaction, then the
Share Cap Amount shall be correspondingly adjusted. The Company shall
increase the Share Cap Amount (including through the increase of its
authorized share capital, if necessary) to an amount that would allow
the Company to raise sufficient proceeds to satisfy its obligations to
pay Deferred Interest (including Additional Interest thereon) in full
at the end of the first year of an Optional Deferral Period (and on
each subsequent anniversary of the end of the first year of an
Optional Deferral Period to the extent that an Optional Deferral
Period would last more than one year), if the then-current Share Cap
Amount would not allow the Company to raise sufficient proceeds to
satisfy its obligations to pay Deferred Interest (including Additional
Interest thereon to the date) assuming a price per share equal to the
average trading price of the Company's common shares over the
ten-trading-day period preceding such date; provided that the Company
will not be obligated to increase the Share Cap Amount above
300,000,000 shares. Until the Tenth Deferral Anniversary, a Default
will occur if the Company does not increase the Share Cap Amount to an
amount that is greater than 100,000,000 shares when required to do so
as described above; provided that no Default will occur if the Company
has increased the Share Cap Amount to 300,000,000 shares.
(iv) Following the earlier of (i) the Fifth Deferral Anniversary
and (ii) the date of any payment of current interest during an
Optional Deferral Period, the Company shall apply the net proceeds
received by it from sales of shares of its Common Stock, including
sales of treasury shares, to the payment of all amounts owing in
respect of Deferred Interest (including Additional Interest thereon),
with net proceeds to be paid promptly after receipt until all amounts
owing in respect of Deferred Interest (including Additional Interest
thereon) have been paid in full.
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In the event that net proceeds received by the Company from one or
more sales of shares of its Common Stock following such Fifth Deferral
Anniversary are not sufficient to satisfy the full amount of Deferred
Interest (including Additional Interest thereon), such net proceeds
will be paid to the holders of the ICONs on a pro rata basis;
provided, that if the Company has outstanding at such time any debt
securities ranking pari passu with the Securities under the terms of
which the Company is obligated to sell shares of its Common Stock and
apply the net proceeds to payment of Deferred Interest (including
Additional Interest thereon) on such pari passu securities and the
Company at such time is required to apply such proceeds to pay
Deferred Interest (including Additional Interest thereon) on such pari
passu securities, then on any date and for any period the amount of
net proceeds received by the Company from such sales and available for
payment of such Deferred Interest (including Additional Interest
thereon) shall be applied to the Securities and such pari passu
securities on a pro rata basis, taking into account any net proceeds
from the sales of securities other than Common Stock or Qualified
Warrants that would be permitted to be applied to the payment of
Deferred Interest (including Additional Interest thereon) on any such
pari passu securities. Notwithstanding the above, the Company shall
not be obligated to sell Common Stock or to apply such net proceeds or
any portion thereof to the payment of Deferred Interest (including
Additional Interest thereon) during the occurrence and continuation of
Market Disruption Event or a Supervisory Event.
(v) Notwithstanding anything to the contrary in this Supplemental
Indenture, under no circumstances will the Company be obligated to
sell shares of Qualified Warrants or to apply the proceeds of any such
sale to pay Deferred Interest (including Additional Interest thereon)
on the Securities.
(vi) Notwithstanding anything to the contrary in this
Supplemental Indenture, the Company will not be obligated to issue
Common Stock prior to the Fifth Deferral Anniversary if the gross
proceeds of any issuance of Common Stock and Qualified Warrants
applied to pay Deferred Interest (including Additional Interest
thereon) on the ICONs pursuant to this Section 2.1(h), together with
the gross proceeds of all prior issuances of Common Stock and
Qualified Warrants applied since the commencement of the Optional
Deferral Period, would exceed an amount equal to 2% of the product of
(1) the average of the Current Stock Market Prices of the Company's
Common Stock on the 10 consecutive trading days ending on the fourth
trading day immediately preceding the date of issuance by the Company
of Common Stock applied to pay Deferred Interest (including Additional
Interest thereon) on the ICONs pursuant to Section 2.1(h) and (2) the
total number of issued and outstanding shares of the Company's Common
Stock as of the date of the Company's publicly available consolidated
financial statements (the "APM Maximum Obligation"). Once the Company
reaches the APM Maximum Obligation for an Optional Deferral Period,
the Company will not be obligated to issue more Common Stock or
Qualified Warrants pursuant to this Section 2.1(h) prior to the Fifth
Deferral Anniversary even if the Current Stock Market Price of the
Company's Common Stock or the number of outstanding shares of its
Common Stock subsequently increase. The
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APM Maximum Obligation will cease to apply following the Fifth
Deferral Anniversary, at which point the Company must repay any
Deferred Interest (including Additional Interest thereon),
regardless of the time at which it was deferred, using proceeds
from sales of the Company's Common Stock, including treasury
shares, subject to any Market Disruption Event, Supervisory
Event, and the Share Cap Amount. If the APM Maximum Obligation
has been reached during an Optional Deferral Period and the
Company subsequently repays all Deferred Interest (including
Additional Interest thereon), the APM Maximum Obligation will
cease to apply at the termination of such Optional Deferral
Period and will not apply again unless and until the Company
starts a new Optional Deferral Period.
(v) if the Company engages in any transaction that is subject to
Section 8.1 of the Indenture, where immediately after the consummation
of such transaction more than 50% of the voting stock of the Person
formed by such transaction, or the Person that is the surviving entity
of such transaction, or the Person to whom such properties and assets
are conveyed, transferred or leased in such transaction, is owned by
the shareholders of the other party to such transaction, then the
restrictions of this Section 2.1(h) shall not apply to any interest on
the ICONs that is deferred and unpaid as of the date of consummation
of such transaction and, with respect to any Deferral Period that is
terminated on the next Interest Payment Date following the date of
consummation of such transaction, Section 2.1(g)(iv) shall not apply.
(i) Notices. (i) Upon and after the Fifth Deferral Anniversary, if a
Market Disruption Event has occurred and is continuing, the Company shall
give, as promptly as possible after the Company becomes aware of such
occurrence, a written notice (a "Market Disruption Event Notice") to the
Trustee, stating the date on which such Market Disruption Event has
occurred, the nature thereof and what action it will take in connection
therewith.
(ii) Upon and after the Fifth Deferral Anniversary, if a
Supervisory Event has occurred and is continuing, the Company shall
give, as promptly as possible after the Company becomes aware of such
occurrence, a written notice (a "Supervisory Event Notice") to the
Trustee stating that a Supervisory Event has commenced and the actions
it will take in connection therewith. No later than five (5) Business
Days following termination of a Supervisory Event, the Company shall
give a written notice to the Trustee stating the date on which such
Supervisory Event terminated.
(iii) The Company shall give written notice to the Federal
Reserve: (a) no later than five (5) Business Days following
commencement of an Optional Deferral Period; and (b) upon the earlier
to occur of (i) the Fifth Deferral Anniversary of such Optional
Deferral Period or (ii) the payment of current interest during an
Optional Deferral Period.
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(iv) At least 25 Business Days in advance of the relevant payment
date (or such longer period as may be required by the Federal Reserve
or by other supervisory action) the Company shall give written notice
to the Federal Reserve of its intent both (1) to sell shares of Common
Stock or, at Company's sole discretion, Qualified Warrants and (2) to
apply the net proceeds from such sale to pay Deferred Interest
(including Additional Interest thereon), and shall only take any such
actions if the Federal Reserve does not disapprove of any such actions
within ten (10) Business Days (or such longer period as may be
required by Federal Reserve order or by other supervisory action)
after the Company gives such notice to the Federal Reserve or has
withdrawn any prior disapproval.
(j) Events of Default. (i) Solely for purposes of the ICONs, Section
5.1(1) of the Indenture shall be deleted and replaced by the following:
"(1) default in the payment of interest (including Additional
Interest thereon), in full on any ICONs for a period of 30 days after
the conclusion of a ten year period following the commencement of any
Optional Deferral Period."
(ii) Solely for purposes of the ICONs, the first paragraph of Section
5.2 of the Indenture shall be deleted and replaced by the following:
"If an Event of Default specified in Section 5.1(1) with respect
to the ICONs at the time outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of at least 25% in
principal amount of the outstanding ICONs shall have the right to
declare the principal amount of, and accrued interest (including any
Additional Interest thereon) on, all the ICONs to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by holders), provided that if the Trustee or the Holders of
not less than 25% in principal amount of the outstanding ICONs fail to
declare the principal of, and accrued interest (including any
Additional Interest thereon) on, all the Securities of that series to
be immediately due and payable, then the holders of at least 25% in
aggregate liquidation amount of the corresponding series of Capital
Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration
such principal amount (or specified portion thereof) of, and the
accrued interest (including any Additional Interest thereon) on, all
the ICONs shall become immediately due and payable. Payment of
principal and interest (including any Additional Interest thereon) on
the ICONs shall remain subordinated to the extent provided in Article
XIII notwithstanding that such amount shall become immediately due and
payable as herein provided. If an Event of Default specified in
Section 5.1(4), (5), (6) or (7) with respect to the ICONs at the time
Outstanding occurs, the principal amount of all the ICONs shall
automatically, and without any declaration or other action on the part
of the Trustee or any Holder, become immediately due and payable."
(iii) For the avoidance of doubt, and without prejudice to any other
remedies that may be available to the Trustee, the Holders of the ICONs or
the holders of the Capital
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Securities under the Indenture, no breach by the Company of any covenant or
obligation under the Indenture or the terms of the ICONs shall be an Event
of Default (including, without limitation, the failure to comply with the
provisions of Section 2.1(g) and Section 2.1(h) of this Supplemental
Indenture), except those that are specifically identified as an Event of
Default under the Indenture.
(l) Location of Payment. Payment of the principal of (and premium, if
any) and interest on the ICONs will be made at the corporate trust office
of the Paying Agent, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment
of interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register or
(ii) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as
specified in the Securities Register. The office where the ICONs may be
presented or surrendered for payment and the office where the ICONs may be
surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the ICONs and the Indenture may be served
shall be the corporate trust office of the Paying Agent.
(k) Redemption. The ICONs are repayable at the option of the Company,
subject to the terms and conditions of Article XI of the Indenture and
subject to the Company having received prior approval from the Federal
Reserve if then required under applicable capital guidelines or policies of
the Federal Reserve, at 100% of their principal amount plus accrued and
unpaid interest (1) in whole or in part, on one or more occasions at any
time on or after November 15, 2011, or (2) in whole at any time if a
Special Event has occurred and is continuing and the Company cannot cure
the Special Event by some reasonable action, in which case the Company may
redeem the ICONs within 90 days following the occurrence of the Special
Event.
(m) Limitation on Claims in the Event of Bankruptcy, Insolvency or
Receivership. Each holder, by such holder's acceptance of the ICONs,
consents to and agrees that if a Bankruptcy Event shall occur prior to the
redemption or repayment of the ICONs, such Holder shall have no claim for,
and thus no right to receive, any Deferred Interest (including any
Additional Interest thereon) to the extent it exceeds an amount equal to
25% of the then outstanding aggregate principal amount of the ICONs.
(n) Sinking Fund. The ICONs shall not be subject to any sinking fund
or analogous provisions.
(o) Forms. The ICONs shall be substantially in the form of Annex A
attached hereto. The Trust Agreement shall be substantially in the form of
Annex B attached hereto. The Guarantee Agreement shall be substantially in
the form of Annex C attached hereto.
(p) Subordination. The subordination provisions of Article XIII of the
Indenture shall apply; provided, however, that for the purposes of the
ICONs (but not for the purposes of any other Securities unless specifically
set forth in the terms of such
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Securities), the definition of "Senior and Subordinated Debt" in the
Indenture is hereby amended in its entirety to read as follows:
"'Senior and Subordinated Debt' means the principal of (and
premium, if any) and interest, if any (including interest accruing on
or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt of the
Company (including, for these purposes and without limitation,
obligations associated with commodity contracts, interest rate and
foreign exchange contracts, forward contracts related to mortgages and
other derivative products), whether incurred on or prior to the date
of this Indenture or thereafter incurred, provided, however, that
Senior and Subordinated Debt shall not include Pari Passu Securities."
(q) Special Record Date for the Payment of Deferred Interest. The
Company may elect to make a payment of any Deferred Interest (including
Additional Interest thereon) on a date that is not an Interest Payment Date
to the Persons in whose names the ICONs are registered at the close of
business on a Special Record Date for the payment of such Deferred Interest
(including Additional Interest thereon), which shall be fixed in the
following manner. The Company shall notify the Trustee and the Paying Agent
in writing of the amount of Deferred Interest (including Additional
Interest thereon) proposed to be paid on the ICONs and the date of the
proposed payment, and at the same time the Company shall deposit with the
Paying Agent an amount of money equal to the aggregate amount proposed to
be paid in respect of such Deferred Interest (including Additional Interest
thereon) or shall make arrangements satisfactory to the Paying Agent for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Deferred Interest (including Additional Interest thereon) as provided
herein. Thereupon, the Trustee shall fix a Special Record Date for the
payment of such Deferred Interest (including Additional Interest thereon)
which shall be not more than 15 days and not less than ten days prior to
the date of the proposed payment and not less than ten days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company and the Paying Agent of such Special
Record Date and, in the name and at the expense of the Company, the Paying
Agent shall cause notice of the proposed payment of such Deferred Interest
(including Additional Interest thereon) and the Special Record Date
therefore to be mailed, first-class, postage prepaid, to each Holder of
ICONs at the address of such Holder as it appears in the Securities
Register not less than ten days prior to such Special Record Date. Notice
of the proposed payment of the Deferred Interest (including Additional
Interest thereon) and the Special Record Date therefore having been mailed
as aforesaid, such Deferred Interest (including Additional Interest
thereon) shall be paid to the persons in whose names the ICONs are
registered on such Special Record Date.
(r) Replacement Capital Covenant. The Company shall not modify the
Replacement Capital Covenant to impose additional restrictions on the type
or amount of Qualifying Capital Securities for purposes of determining the
extent to which repayment, redemption or repurchase of the ICONs is
permitted, except with the consent of the holders of the majority by
principal amount of the ICONs. Except as aforesaid, the
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Company may modify the Replacement Capital Covenant without consent of the
holders of the ICONs.
SECTION 2.2. Amendments. Solely for the purposes of this series of ICONs,
Section 9.1 of the Indenture shall be amended by:
(a) redesignating original Subsection 9.1(8) as 9.1(9), and original
Subsection 9.1(9) as 9.1(10); and
(b) adding a new Subsection 9.1(8) to read as follows:
"(8) to eliminate Common Stock, Mandatorily Convertible Preferred
Stock and/or Debt Exchangeable for Equity (but only to the extent
exchangeable for Common Stock) as a type of security or securities included
in the definition of "Qualifying Securities" if the Company has been
advised in writing by a nationally recognized independent accounting firm
that there is more than an insubstantial risk that the failure to do so
would result in a reduction in the Company's earnings per share as
calculated for financial reporting purposes; or"
ARTICLE III
REPAYMENT OF THE ICONS
SECTION 3.1. Repayment. The Company shall, not more than 15 nor less than
10 Business Days prior to each Repayment Date, notify the Trustee of the ICONs
of the principal amount of ICONs to be repaid on such date pursuant to Section
2.1(d).
SECTION 3.2. Selection of Securities to be Repaid. If less than all the
ICONs are to be repaid on any Repayment Date (unless such repayment affects only
a single ICON), the particular ICONs to be repaid shall be selected not more
than 60 days prior to such Repayment Date by the Trustee, from the outstanding
ICONs not previously repaid or called for redemption, by lot, provided that the
portion of the principal amount of any ICON not repaid shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such ICON.
The Trustee shall promptly notify the Company in writing of the ICONs
selected for partial repayment and the principal amount thereof to be repaid.
For all purposes hereof, unless the context otherwise requires, all provisions
relating to the repayment of ICONs shall relate, in the case of any ICON repaid
or to be repaid only in part, to the portion of the principal amount of such
ICON which has been or is to be repaid. If the Company shall so direct, ICONs
registered in the name of the Company, any Affiliate or any Subsidiary thereof
shall not be included in the ICONs selected for repayment.
SECTION 3.3. Notice of Repayment. Notice of repayment shall be given by
first-class mail, postage prepaid, mailed not later than the 15th day, and not
earlier than the 10th day, prior to the Repayment Date, to each holder of
Capital Securities to be repaid, at the address of such holder as it appears in
the Securities Register.
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Each notice of repayment shall identify the ICONs to be repaid (including
CUSIP number, if a CUSIP number has been assigned to the ICONs) and shall state:
(a) the Repayment Date;
(b) if less than all outstanding ICONs are to be repaid, the
identification (and, in the case of partial repayment, the respective
principal amounts) of the particular ICONs to be redeemed;
(c) that on the Repayment Date, the principal amount of the ICONs to
be repaid will become due and payable upon each such ICON or portion
thereof, and that interest thereon, if any, shall cease to accrue on and
after said date; and
(d) the place or places where such ICONs are to be surrendered for
payment of the principal amount thereof.
Notice of repayment shall be given by the Trustee in the name and at the
expense of the Company and shall be irrevocable. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice. In any case, a failure to give
such notice by mail or any defect in the notice to the holder of any ICONs
designed for repayment as a whole or in part shall not affect the validity of
the proceedings for the repayment of any other ICONs.
SECTION 3.4. Deposit of Repayment Amount. Prior to 10:00 a.m., New York
City time, on the Repayment Date specified in the notice of repayment given as
provided in Section 3.3, the Company will deposit with the Trustee or with one
or more Payment Agents an amount of money sufficient to pay the principal amount
of, and any accrued interest (including Additional Interest thereon) on, all the
ICONs which are to be repaid on that date.
SECTION 3.5. Payment of ICONs Subject to Repayment. If any notice of
repayment has been given as provided in Section 3.3, the ICONs or portion of the
ICONs with respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such notice. On
presentation and surrender of such ICON at a Place of Payment in said notice
specified, the said securities or the specified portions thereof shall be paid
by the Company at their principal amount, together with accrued interest
(including any Additional Interest thereon) to the Repayment Date; provided
that, except in the case of a repayment in full of all outstanding ICONs,
installments of interest whose stated maturity is on or prior to the Repayment
Date will be payable to the holders of such ICONs, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7 of the
Indenture.
Upon presentation of any ICON repaid in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new ICON or ICONs, of
authorized denominations, in aggregate principal amount equal to the portion of
the ICON not repaid and so presented and having the same date of original
issuance, Final Maturity Date and terms.
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If any ICON called for repayment shall not be so paid upon surrender
thereof, the principal of such ICON shall, until paid, bear interest from the
Repayment Date at the rate prescribed therefore in the ICON.
-22-
ARTICLE IV
COVENANTS
SECTION 4.1. Covenants as to Trust. For so long as any Capital Securities
of the Trust remain outstanding, the Company will (i) maintain 100% direct or
indirect ownership of the Common Stock of the Trust; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Stock, (ii) not voluntarily dissolve, wind up or
terminate the Trust, except in connection with a distribution of ICONs upon a
Special Event, and in connection with certain mergers, consolidations or
amalgamations permitted by the Trust Agreement, (iii) timely perform its duties
as Sponsor of the Trust, (iv) use its reasonable efforts to cause the Trust to
(a) remain a business trust, except in connection with a distribution of ICONs
to the holders of Capital Securities as provided in the Trust Agreement, the
redemption of all of the ICONs and in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement, and (b)
otherwise continue to be classified as a grantor trust for United States federal
income tax purposes and (v) not knowingly take an action that would cause the
Trust to not be classified as a grantor trust for United States federal income
tax purposes.
SECTION 4.2. Payment of Expenses. (a) In connection with the offering, sale
and issuance of the ICONs to the Trustee and in connection with the sale of
Capital Securities by the Trust, the Company, in its capacity as borrower with
respect to such ICONs, shall:
(i) pay all costs and expenses relating to the offering, sale and
issuance of ICONs, including commissions to the underwriters payable
pursuant to the applicable Underwriting Agreement and compensation of
the Trustee under this Supplemental Indenture in accordance with the
provisions of Section 6.6 of the Indenture;
(ii) 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 Capital Securities of
the Trust, (including commissions to the underwriters in connection
therewith), the fees and expenses of the Trustee, the costs and
expenses relating to the operation, maintenance and dissolution of the
Trust and the enforcement by such Trustee of the rights of the holders
of Capital Securities 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 agents(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and all expenses incurred in
connection with the acquisition, financing, and disposition of assets
of the Trust);
(iii) be primarily liable for any indemnification obligations
arising with respect to the Trust Agreement;
-23-
(iv) pay any and all taxes (other than United States withholding
taxes in respect of amounts paid on the ICONs held by the Trust) and
all liabilities, costs and expenses with respect to such taxes of the
Trust;
(b) Upon termination of this Supplemental Indenture or the ICONs or
the removal or resignation of the Trustee pursuant to Section 6.8 of the
Indenture, the Company shall pay to the Trustee all amounts accrued and
owing to the Trustee to the date of such termination, removal or
resignation. Upon termination of the Trust Agreement or the removal or
resignation of the Trustee, as the case may be, pursuant to the Section
8.11 of the Trust Agreement, the Company shall pay to such Trustee, as the
case may be, all amounts accrued and owing to such Trustee, as the case may
be, to the date of such termination, removal or resignation.
SECTION 4.3. Listing on an Exchange. If ICONs are to be issued as a Global
Security in connection with the distribution of such ICONs to the holders of the
Capital Securities of the Trust upon a Dissolution Event with respect to the
Trust, the Company will use its best efforts to list such ICONs on the New York
Stock Exchange or on such other securities exchange as the Capital Securities of
the Trust are then listed. The Company will promptly notify the Trustee in
writing if the ICONs are to be listed on any securities exchange.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 through operation of Section
318(c) thereof, such imposed duties shall control.
SECTION 5.2. The Article headings herein are for convenience only and shall
not effect the construction hereof.
SECTION 5.3. Acknowledgement of Rights. The Company acknowledges that, with
respect to any ICONs held by the Trust or the Trustee, if the Trustee fails to
enforce its right under this Supplemental Indenture as the holder of the ICONs
held as the assets of the Trust, any holder of Capital Securities may institute
legal proceedings directly against the Company to enforce the Trustee's rights
under this Supplemental Indenture without first instituting any legal
proceedings against such Trustee or any other person or entity.
Notwithstanding the foregoing, if a Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the ICONs on the date such interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), the
Company acknowledges that a holder of Capital Securities issued by the Trust
which is, or the Trustee of which is, the holder of such Capital Securities may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the ICONs having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such holder (a "Direct
Action") on or after the respective due date specified of such holder on or
after the respective due date specified in the ICONs. Notwithstanding any
payments made to such holder of Capital Securities by the Company in connection
with a Direct Action,
-24-
the Company shall remain obligated to pay the principal of or interest on the
ICONs held by the Trust or Trustee, and the Company shall be subrogated to the
rights of the holder of such Capital Securities to the extent of any payments
made by the Company to such holder in any Direct Action.
SECTION 5.4. All covenants and agreements in this Supplemental Indenture by
the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 5.5. In case any provision of this Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 5.6. Nothing in this Supplemental Indenture is intended to or shall
provide any rights to any parties other than those expressly contemplated by
this Supplemental Indenture.
SECTION 5.7. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
SECTION 5.8. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture. The Recitals and statements herein
are deemed to be those of the Company and not of the Trustee.
* * * *
-25-
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NATIONAL CITY CORPORATION
By:
------------------------------------
Its:
-----------------------------------
Attest:
By:
---------------------------------
Its:
--------------------------------
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
By:
------------------------------------
Its:
-----------------------------------
Attest:
By:
---------------------------------
Its:
--------------------------------
-26-
Annex A
Form of ICONS
NATIONAL CITY CORPORATION
SERIES A INCOME CAPITAL OBLIGATIONS NOTES(SM)
NO. __________
$__________
NATIONAL CITY CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (hereinafter called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to The Bank of New York Trust
Company, N.A., the Property Trustee of NATIONAL CITY CAPITAL TRUST II, or
registered assigns, the principal sum of __________ dollars (__________) on
November 15, 2066, or if such day is not a Business Day (as hereinafter
defined), the following Business Day (the "Final Maturity Date"); provided that
the principal amount of, and all accrued and unpaid interest on, this ICON shall
be payable in full on November 15, 2036 (the "Scheduled Maturity Date") or any
subsequent Interest Payment Date (as hereinafter defined) to the extent set
forth in the Supplemental Indenture hereinafter referred to. The Company is
authorized to direct payments to The Bank of New York Trust Company, N.A., in
its capacity as paying agent under the Trust Agreement (as defined below), or
any other paying agent appointed under the terms of the Trust Agreement. The
ICON shall bear interest (i) from and including November 3, 2006 to but
excluding the Scheduled Maturity Date, at an annual rate of 6.625%, computed on
the basis of a 360-day year comprised of twelve 30-day months; provided that the
amount of interest for any period shorter than a full quarterly period will be
computed on the basis of a 30-day month and, for periods of less than a month,
the actual number of days elapsed over a 360-day year, and (ii) on and after the
Scheduled Maturity Date, as to any unpaid amounts that remain outstanding, at an
annual rate equal to One-Month LIBOR plus 2.290%, computed on the basis of a
360-day year and the actual number of days elapsed. Subject to Sections 2.1(g)
and (h), interest on the ICONs shall be payable (i) quarterly in arrears on
November 15, February 15, May 15 and August 15 of each year, commencing
__________, 2006 until the Scheduled Maturity Date, or if such day is not a
Business Day, the following Business Day (each such date, a "Quarterly Interest
Payment Date") and (ii) thereafter, monthly in arrears on the last day of each
month, or if such day is not a Business Day, the Business Day immediately
preceding such Business Day (each such date, a "Monthly Interest Payment Date").
A "Business Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office or the principal offices of the Property Trustee is
closed for business. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest installment, which shall be (i) the Business Day
next preceding such Interest Payment Date if this Security is issued in the form
of a Global Security, or (ii) the fifteenth day (whether or not a Business Day)
preceding such Interest Payment Date if this Security is not issued in the form
of a Global Security. Any such interest
----------
(SM) Income Capital Obligation Notes is a service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
Inc.
installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of the Securities of this series not fewer than ten days prior
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more full provided in said Indenture.
The Company shall have the right, at any time and from time to time prior
to the Final Maturity Date of this Security, to defer the payment of interest
thereon for one or more Optional Deferral Periods consisting of no more than 20
consecutive quarters without becoming subject to the obligations to issue
Eligible Equity and pay Deferred Interest pursuant to Section 2.1(h) of the
First Supplemental Indenture. The Company shall also have the right, at any time
and from time to time prior to the Final Maturity Date of this Security, to
defer payment of interest thereon for one or more Optional Deferral Periods
consisting of no more than 40 consecutive quarters without giving rise to an
Event of Default. The Company may elect to so defer payment of interest by
delivering to the Trustee written notice of such election at least ten and not
more than 15 Business Days prior to the applicable Interest Payment Date.
Notwithstanding the foregoing, no Optional Deferral Period shall extend beyond
the Final Maturity Date of this Security.
During any Optional Deferral Period, the Company shall not, and shall not
permit any Subsidiary of the Company to, (1) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock (which includes Common and
Preferred Stock), (2) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the Company
(including other Income Capital Obligation Notes or other junior subordinated
debt) that rank pari passu with or junior in interest to the Securities of this
Series or (3) make any Guarantee payments with respect to any Guarantee by the
Company of the debt securities of any Subsidiary of the Company (including other
Income Capital Obligation Notes or other junior subordinated debt) if such
Guarantee ranks pari passu with or junior in interest to the Securities of this
series, other than in the case of each of clauses (1), (2) and (3): (A) any
dividends or distributions in additional shares of the Company's capital stock
(which includes Common and Preferred Stock), (B) any payments under the
Guarantee with respect to the Capital Securities and common securities of the
Trust, (C) any declaration or payment of a dividend in connection with the
implementation of a stockholders' rights plan, or any issuance of stock under
any such plan in the future or the redemption or repurchase of any such rights
pursuant thereto, and (D) any 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.
Payment of principal of (and premium, if any) and interest on this Security
will be made at the office or agency of the Company maintained for that purpose
in the United States, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
may be made (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Securities Register or (ii) by wire transfer in
immediately
A-2
available funds at such place and to such account as may be designated in
writing at least 15 days before the relevant Interest Payment Date by the Person
entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinated and subject in right of payments to the prior
payment in full of all Senior and Subordinated Debt (as such definition is
modified in the First Supplemental Indenture with respect to this Security), and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior and Subordinated Debt, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is made hereby to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
NATIONAL CITY CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[SEAL]
Attest:
-------------------------------------
Assistant Secretary
Dated:
------------------------------
A-4
REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Junior Subordinated Indenture, dated as of November 3, 2006, as
supplemented by the First Supplemental Indenture, dated as of November 3, 2006
(herein together called the "Indenture"), between the Company and The Bank of
New York Trust Company, N.A., as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $863,500,000, issuable on one or more occasions.
All terms used in this Security that are defined in the Indenture or in the
Amended and Restated Trust Agreement, dated as of November 3, 2006 (the "Trust
Agreement"), for National City Capital Trust II, among National City
Corporation, as Depositor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or the Trust Agreement, as the case
may be.
The Company may at any time, at its option, on or after November 15, 2011,
and subject to the terms and conditions of Article XI of the Indenture and
Section 2.1(k) of the First Supplemental Indenture, and subject to prior
approval by the Board of Governors of the Federal Reserve System if then
required, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest (including Additional
Interest thereon, if any), to the Redemption Date.
Following the earlier of (i) the Fifth Deferral Anniversary and (ii) the
date of any payment of current interest during an Optional Deferral Period, the
Company shall apply the net proceeds received by it from sales of shares of its
Common Stock, including sales of treasury shares, to the payment of all amounts
owing in respect of Deferred Interest (including Additional Interest thereon),
with net proceeds to be paid promptly after receipt until all amounts owing in
respect of Deferred Interest (including Additional Interest thereon) have been
paid in full. In the event that net proceeds received by the Company from one or
more sales of shares of its Common Stock following such Fifth Deferral
Anniversary are not sufficient to satisfy the full amount of Deferred Interest
(including Additional Interest thereon), such net proceeds will be paid to the
holders of the ICONs on a pro rata basis; provided, that if the Company has
outstanding at such time any debt securities ranking pari passu with the
Securities under the terms of which the Company is obligated to sell shares of
its Common Stock and apply the net proceeds to payment of Deferred Interest
(including Additional Interest thereon) on such pari passu securities and the
Company at such time is required to apply such proceeds to pay Deferred Interest
(including Additional Interest thereon) on such pari passu securities, then on
any date and for any period the amount of net proceeds received by the Company
from such sales and available for payment of such Deferred Interest (including
Additional Interest thereon)
A-5
shall be applied to the Securities and such pari passu securities on a pro rata
basis, taking into account any net proceeds from the sales of securities other
than Common Stock or Qualified Warrants that would be permitted to be applied to
the payment of Deferred Interest (including Additional Interest thereon) on any
such pari passu securities. Notwithstanding the above, the Company shall not be
obligated to sell Common Stock or to apply such net proceeds or any portion
thereof to the payment of Deferred Interest (including Additional Interest
thereon) during the occurrence and continuation of Market Disruption Event or a
Supervisory Event.
Upon the occurrence and during the continuation of a Tax Event, Investment
Company Event or a Regulatory Capital Event in respect of a Trust, the Company
may, at its option, at any time within 90 days of the occurrence of such Tax
Event, Investment Company Event or Regulatory Capital Event redeem this
Security, in whole but not in part, subject to the provisions of Article XI of
the Indenture, at a redemption price equal to 100% of the principal amount
thereof plus accrued and unpaid interest(including Additional Interest thereon,
if any), to the Redemption Date.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company of certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of all series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of all series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holders of this Security and of any Security issued upon the registration and
transfer hereof or in exchange hereof or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the Securities of this series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less that 25% in principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), provided that, in the case of the
Securities of this series issued to a Trust, if upon an Event of Default under
the First Supplemental Indenture, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of this series fails to
declare the principal of all the Securities of this series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities then outstanding shall have such right by a notice in writing
to the Company and the Trustee; and upon any such declaration the principal
amount of and the accrued interest (including Additional Interest thereon) on
all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including Additional
Interest thereon) on
A-6
such Securities shall remain subordinated to the extent provided in Article XIII
of the Indenture and Section 2.1(o) of the First Supplemental Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, places and rate, and in the coin or
currency, herein prescribed (subject to the deferral rights of the Company
described in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration or transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $25 and in any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree to treat the Trust as a grantor trust and
beneficial owners of interests in the Trust as owning an undivided beneficial
interest in the Security and to treat the Security as indebtedness for all
United States federal, state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
A-7
This is one of the Securities referred to in the mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
------------------------------
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇-▇
Annex C
Guarantee Agreement
C-1