Exhibit 4.28
FOURTH SUPPLEMENTAL INDENTURE
between
BANK ONE CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of August 8, 2000
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
SECTION 1.1 Definition of Terms....................................................... 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.......................................... 3
SECTION 2.2 Maturity.................................................................. 4
SECTION 2.3 Form and Payment.......................................................... 4
SECTION 2.4 Global Debenture.......................................................... 4
SECTION 2.5 Interest.................................................................. 5
ARTICLE III REDEMPTION OF THE DEBENTURES
SECTION 3.1 Tax Event, Investment Company Event or Capital Treatment Event Redemption. 6
SECTION 3.2 Optional Redemption by Company............................................ 6
SECTION 3.3 No Sinking Fund........................................................... 7
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period...................................... 7
SECTION 4.2 Notice of Extension....................................................... 8
ARTICLE V EXPENSES
SECTION 5.1 Payment of Expenses....................................................... 8
SECTION 5.2 Payment Upon Resignation or Removal....................................... 9
ARTICLE VI FORM OF DEBENTURE
SECTION 6.1 Form of Debenture......................................................... 9
ARTICLE VII ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures.............................................. 18
ARTICLE VIII MISCELLANEOUS
SECTION 8.1 Ratification of Indenture................................................. 18
SECTION 8.2 Trustee Not Responsible for Recitals...................................... 18
SECTION 8.3 Governing Law............................................................. 18
SECTION 8.4 Separability.............................................................. 18
SECTION 8.5 Counterparts.............................................................. 19
FOURTH SUPPLEMENTAL INDENTURE, dated as of August 8, 2000 (the "Fourth
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Supplemental Indenture"), between BANK ONE CORPORATION, a Delaware corporation
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(the "Company"), and The Chase Manhattan Bank, as trustee (the "Trustee"), under
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the Indenture dated as of January 1, 1997 between the Company and the Trustee
(the "Indenture").
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WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its Junior Subordinated Deferrable Interest Debentures due August 15, 2030
(the "Debentures"), the form and substance of such Debentures and the terms,
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provisions and conditions thereof to be set forth as provided in the Indenture
and this Fourth Supplemental Indenture;
WHEREAS, BANK ONE Capital II, a Delaware statutory business trust (the
"Trust"), has offered to the public $280,000,000 aggregate liquidation amount of
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its 8.500% Preferred Securities (the "Preferred Securities") (including the
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underwriters' exercise of the over-allotment option (the "Option")),
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representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $8,659,800 aggregate
liquidation amount of its 8.500% Common Securities (including the exercise of
the Option), in $288,659,800 aggregate principal amount of the Debentures
(including the exercise of the Option); and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Fourth Supplemental Indenture pursuant to Sections 3.01 and 9.01 of
the Indenture and all requirements necessary to make this Fourth Supplemental
Indenture a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Fourth Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this Fourth Supplemental Indenture;
(b) a term defined anywhere in this Fourth Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this Fourth Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Treatment Event; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Institutional Trustee; (vi) Institutional
Trustee Account; (vii) Investment Company Event; (viii) Preferred Security
Certificate; (ix) Regular Trustees; (x) Special Event; (xi) Tax Event; and (xii)
Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
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"Bank One Capital Trust" means each of (i) any FCN Capital Trust and
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(ii) BANK ONE Capital I, BANK ONE Capital II, BANK ONE Capital III, BANK ONE
Capital IV and BANK ONE Capital V, each a Delaware business trust, or any
similar trust created for the purpose of issuing preferred securities in
connection with the issuance of Securities under the Indenture.
"Bank One Guarantee" means any Common Securities Guarantee or
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Preferred Securities Guarantee.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
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"Declaration" means the Amended and Restated Declaration of Trust of
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BANK ONE Capital II, a Delaware statutory business trust, dated as of August 8,
2000.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
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"Depositary", with respect to the Debentures, means The Depository
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Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust by the Regular
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Trustees in accordance with the Declaration, and the distribution of the
Debentures held by the Institutional Trustee to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Global Debenture" shall have the meaning set forth in Section 2.4.
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"Maturity Date" shall mean August 15, 2030.
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"Non Book-Entry Preferred Securities" shall have the meaning set forth
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in Section 2.4.
"Redemption Price" shall mean, with respect to any redemption of the
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Debentures pursuant to Article III hereof, an amount in cash equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
"Trust Securities" shall mean the Preferred Securities and the Common
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Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
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There is hereby authorized a series of Securities designated the
"Junior Subordinated Deferrable Interest Debentures due August 15, 2030",
limited in aggregate principal amount to $288,659,800 (including the exercise of
the Option), which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures pursuant to Section
3.03 of the Indenture.
SECTION 2.2. Maturity.
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The Maturity Date (which shall constitute the Stated Maturity of the
Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3. Form and Payment.
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Except as provided in Section 2.4, the Debentures shall be issued
in fully registered certificated form without interest coupons in minimum
denominations of $25 and in integral multiples thereof. Principal and interest
on the Debentures issued in certificated form will be payable, the transfer of
such Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Company as set forth in the last sentence of Section 5.02 of the Indenture;
provided, however, that payment of interest may be made, at the option of the
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Company, by check mailed to the Holder at such address as shall appear in the
Security Register or by wire transfer to an account designated by a Holder in
writing not less than ten days prior to the date of payment. The Company
selects each of the City of New York, New York and the City of Chicago, Illinois
as a Place of Payment for the Debentures and hereby appoints Bank One Trust
Company, N.A. as Securities Registrar for the Debentures. Notwithstanding the
foregoing, so long as the Holder of any Debentures is the Institutional Trustee,
the payment of the principal of and interest (including Compounded Interest and
Additional Sums, if any) on such Debentures held by the Institutional Trustee
will be made at such place and to such account as may be designated by the
Institutional Trustee.
SECTION 2.4. Global Debenture.
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(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented
to the Trustee by the Institutional Trustee in exchange for a
global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global
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Debenture"), to be registered in the name of the Depositary, or its
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nominee, and delivered by the Trustee to or upon the order of the
Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Regular Trustees. The Company
upon any such presentation shall execute a Global Debenture in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and
this Fourth Supplemental Indenture. Payments on the Debentures
issued as a Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-
entry certificated form, the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee and any
Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the Clearing
Agency or its nominee ("Non Book-Entry Preferred Securities") will
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be deemed to represent beneficial interests in Debentures presented
to the Trustee by the Institutional Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Preferred Securities until such
Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance at which time such Preferred
Security Certificates will be cancelled and a Debenture, registered
in the name of the holder of the Preferred Security Certificate or
the transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security
Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this Third Supplemental
Indenture. Upon the issuance of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been
cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at a rate per annum equal to
8.500% (the "Interest Rate") from August 8, 2000 until the principal thereof
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becomes due and payable, and on any overdue principal at the Interest Rate and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Interest Rate, compounded
quarterly, payable (subject to the provisions of Article Four) quarterly in
arrears on February 15, May 15, August 15 and November 15 of each year
commencing on November 15, 2000 (each such day, an "Interest Payment Date"), to
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the Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which, in respect of any Debentures of which the
Institutional Trustee is the Holder or in the case of a Global Debenture, shall
be the close of business on the Business Day next preceding that Interest
Payment Date (as defined below). Notwithstanding the foregoing sentence, if the
Debentures are no longer in book-entry only form, except if the Debentures are
held by the Institutional Trustee, the regular record dates shall be the
February 1, May 1, August 1 and November 1 prior to the applicable Interest
Payment Date.
The term "Interest Period" means each period beginning on, and
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including, August 8, 2000, and ending on, but excluding, the first Interest
Payment Date, and each successive period beginning on, and including, an
Interest Payment Date and ending on, but excluding, the next succeeding Interest
Payment Date. The amount of interest payable for any Interest Period will be
computed for any full quarterly Interest Period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full quarterly
Interest Period for which interest is computed, interest will be computed on the
basis of the actual number of days elapsed per 90-day quarter.
(b) In the event that any Interest Payment Date is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day, in each case with the same force and
effect as if made on such date.
(c) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
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by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will not be less
than the amounts the Trust and the Institutional Trustee would have received had
the Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other governmental charges as a result of such Tax Event. The
payment of such Additional Sums will be subject to the provisions of Section
5.04 of the Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event, Investment Company Event or Capital Treatment Event
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Redemption.
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If a Tax Event, an Investment Company Event or a Capital Treatment
Event has occurred and is continuing then, notwithstanding Section 3.2(a) but
subject to Section 3.2(c), the Company shall have the right upon not less than
30 days nor more than 60 days notice to the Holders of the Debentures to redeem
the Debentures, in whole, but not in part, for cash within 90 days following the
occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event (or, if the approval of the Federal Reserve Board is then required for
such redemption, on such later date as promptly practicable after such approval
is obtained), (the "90 Day Period") at the Redemption Price.
SECTION 3.2. Optional Redemption by Company.
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(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Four of the Indenture, except as otherwise may be
specified in this Fourth Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after August 15, 2005, at the Redemption Price. Any redemption pursuant to this
paragraph will be made upon not less than 30 days nor more than 60 days notice
to the Holders of the Debentures. If the Debentures are only partially redeemed
pursuant to this Section 3.2, the Debentures will be redeemed pro rata or by lot
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or by any other method utilized by the Securities Registrar; provided, that if
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at the time of redemption the Debentures are registered as a Global Debenture,
the Depositary shall determine, in accordance with its procedures, the principal
amount of such Debentures beneficially held by each Holder of Debentures to be
redeemed.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or
Section 3.2 shall be subject to the Company obtaining the prior approval of the
Federal Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
SECTION 3.3. No Sinking Fund.
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The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
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Subject to Section 3.13 of the Indenture, the Company shall have
the right, at any time and from time to time during the term of the Debentures,
to defer payments of interest by extending the interest payment period of such
Debentures for an Extension Period not exceeding 20 consecutive quarters, during
which Extension Period no interest shall be due and payable; provided that no
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Extension Period may end on a date other than an Interest Payment Date or extend
beyond the Maturity Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Interest Rate compounded quarterly for each quarter of the Extension Period
("Compounded Interest"). At the end of the Extension Period, the Company shall
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pay all interest accrued and unpaid on the Debentures, including any Additional
Sums and Compounded Interest (together, "Deferred Interest") that shall be
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payable to the Holders of the Debentures in whose names the Debentures are
registered in the Security Register on the record date relating to the Interest
Payment Date on which the Extension Period ends. Before the termination of any
Extension Period, the Company may further defer payments of interest by further
extending such period, provided that such period, together with all such further
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extensions thereof, shall not exceed 20 consecutive quarters, or extend beyond
the Maturity Date of the Debentures. Upon the termination of any Extension
Period and the payment of all Deferred Interest then due, the Company may
commence a new Extension Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extension Period, except at the end
thereof.
SECTION 4.2. Notice of Extension.
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(a) If the Institutional Trustee is the only registered Holder of
the Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Regular Trustees, the Institutional Trustee and
the Trustee of its selection of such Extension Period at least one Business Day
before the earlier of (i) the next succeeding date on which Distributions on the
Trust Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to Holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarters permitted in the maximum Extension Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
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In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale of the
Trust Securities by the Trust, the Company, in its capacity as borrower with
respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 8.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition, financing, and disposition
of Trust assets);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
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Upon termination of this Fourth Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee, unless otherwise stated,
the Company shall pay to the Trustee all amounts accrued under Section 8.07 of
the Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts accrued under said
Sections to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
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The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
No. CUSIP No.
BANK ONE CORPORATION
JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE AUGUST 15, 2030
BANK ONE CORPORATION, a Delaware corporation (the "Company", which
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term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ______________ or registered
assigns, the principal sum of _____________ Dollars ($___________) on August 15,
2030 and to pay interest on said principal sum from August 8, 2000, or from the
most recent interest payment date to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
February 15, May 15, August 15 and November 15 of each year commencing November
15, 2000 (each such date, an "Interest Payment Date") at the rate of 8.500% per
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annum (the "Interest Rate") until the principal hereof shall have become due and
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payable, and on any overdue principal and premium, if any, at the Interest Rate
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Interest Rate compounded quarterly. The amount of interest payable on any
Interest Payment Date (as defined below) shall be calculated as provided in the
Indenture. In the event that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the first business day next
preceding such Interest Payment Date. If pursuant to the provisions of the
Indenture the Debentures are no longer represented by a Global Debenture, except
if the Debentures are held by the Institutional Trustee, the regular record date
shall be the close of business on the February 1, May 1, August 1 and November 1
next preceding such Interest Payment Date, as applicable. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor Securities)
is registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
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of interest may be made, at the option of the Company, by check mailed to the
registered Holder at such address
as shall appear in the Security Register or by wire transfer to an account
designated by a Holder in writing not less than ten days prior to the date of
payment. Notwithstanding the foregoing, so long as the Holder of this Debenture
is the Institutional Trustee, the payment of the principal of (and premium, if
any) and interest on this Debenture will be made at such place and to such
account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and General Obligations, and
this Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and creditor in respect of General
Obligations, whether now outstanding or hereafter incurred, and waives reliance
by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Trustee.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
BANK ONE CORPORATION
Name:
Title: Chairman of the Board
Attest:
By:________________________
Name:
Title: Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By__________________________
Authorized Officer
Dated_______________________
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Securities"), all issued or to be
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issued in one or more series under and pursuant to an Indenture dated as of
January 1, 1997, duly executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as heretofore supplemented and as
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supplemented by the Fourth Supplemental Indenture dated as of August 8, 2000,
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
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reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities. By the terms of the Indenture, the Securities
are issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This Security is
one of the series designated on the face hereof (the "Debentures") and is
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limited in aggregate principal amount as specified in said Fourth Supplemental
Indenture.
Upon the occurrence and continuation of a Tax Event, Investment
Company Event or Capital Treatment Event, the Company shall have the right,
subject to certain conditions set forth in the Indenture, to redeem this
Debenture in whole, but not in part, at the Redemption Price within 90 days
following the occurrence of such Tax Event, Investment Company Event or Capital
Treatment Event (or, if the prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") is then required, on such later
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date as promptly as practicable after such approval is obtained). In addition,
the Company shall have the right to redeem this Debenture, in whole or in part,
at any time on or after August 15, 2005, at the Redemption Price (any of the
foregoing redemptions an "Optional Redemption"). The "Redemption Price" means
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an amount in cash equal to 100% of the principal amount together with any
accrued and unpaid interest thereon, including Additional Sums and Compounded
Interest, if any, to the date of such redemption. Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice. If the Debentures are only partially redeemed by the Company pursuant
to an Optional Redemption, the Debentures will be redeemed pro rata or by lot or
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by any other method utilized by the Securities Registrar; provided that if, at
the time of redemption, the Debentures are registered as a Global Debenture, the
Depositary shall determine the principal amount of such Debentures beneficially
held by each Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Debentures by the
Company shall be subject to the prior approval of the Federal Reserve, if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
(acting as one class), to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities; provided, however, that no such supplemental indenture shall (i)
change the Maturity of the principal of, or the Stated Maturity of any
installment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest thereon,
or change the obligations of the Company to pay additional amounts pursuant to
Section 5.04 of the Indenture, or to reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof, or change the method of
calculating interest thereon or the coin or currency in which any Security (or
premium, if any, thereon) or the interest thereon is payable, or reduce the
minimum rate of interest thereon, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date); or (ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Indenture or to reduce the
requirements of the Indenture for a quorum at meetings of Holders of Securities;
or (iii) change the obligations of the Company to maintain certain offices or
agencies as required by the Indenture; or (iv) modify any of the provisions of
the Indenture relating to supplemental indentures or the waiver of defaults,
except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived, without the consent of
the Holders of each Security then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series affected
thereby, on behalf of all of the Holders of the Securities of such series, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of, premium, if any, or interest on any of the Securities of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 20 consecutive quarters (an
"Extension Period"), at the end of which period the Company shall pay all
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interest then accrued and unpaid (together with interest thereon at the Interest
Rate to the extent that payment of such interest is enforceable under applicable
law); provided that no Extension Period may end on a day other than an Interest
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Payment Date or last beyond the Maturity Date of the Debentures. Before the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters or extend
beyond the Maturity Date of the Debentures. Upon the termination of any such
Extension
Period and the payment of all accrued and unpaid interest and any additional
amounts then due, the Company may commence a new Extension Period, subject to
the foregoing requirements.
During any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu in all respects with or junior in interest
to the Debentures or make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company that by
their terms rank pari passu in all respects with or junior in interest to the
Debentures (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock of any class or series of preferred stock
of the Company under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any Bank One Guarantee which is
for the benefit of the holders of Preferred Securities or Common Securities
issued by the Trust, (d) purchases of Common Stock related to the issuance of
Common Stock under any of the Company's benefit plans for its directors,
officers or employees and (e) obligations under any dividend reinvestment and
stock purchase plan).
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Company will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York or the City of Chicago, Illinois accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Securities Registrar duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to Section 3.07 of the Indenture) interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
[The Debentures are issuable only in registered form without coupons
in denominations of $25 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures so issued are
issuable only in registered form without coupons in denominations of $25 and any
integral multiple thereof.] As provided in the Indenture and subject to certain
limitations herein and therein set forth, Debentures of this series [so issued]
are exchangeable for a like aggregate principal amount of Debentures of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
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Debentures in the aggregate principal amount of $288,659,800
(including the exercise of the Option) may, upon execution of this Fourth
Supplemental Indenture, be executed by the Company and delivered to the Trustee
for authentication as provided in Sections 3.01 and 3.03 of the Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.
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The Indenture, as supplemented by this Fourth Supplemental
Indenture, is in all respects ratified and confirmed, and this Fourth
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 8.2. Trustee Not Responsible for Recitals.
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The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Fourth Supplemental Indenture.
SECTION 8.3. Governing Law.
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This Fourth Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 8.4. Separability.
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In case any one or more of the provisions contained in this
Fourth Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Fourth Supplemental Indenture or of the Debentures, but this Fourth Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 8.5. Counterparts.
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This Fourth Supplemental Indenture may be executed in any number
of counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
BANK ONE CORPORATION
By:
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
Attest:
By:
Name: ▇▇▇▇▇▇ ▇. Renchof
Title: Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By:
Name:
Title:
Attest:
By:
