1
Exhibit 4.5
NATIONAL CITY CAPITAL TRUST I
$500,000,000
Reset Asset Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
NATIONAL CITY CORPORATION
AUCTION AGENCY AGREEMENT
June 6, 1997
National City Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
National City Capital Trust I, a Delaware statutory trust (the
"Trust") proposes to issue and sell to UBS Securities LLC ("UBS"), upon the
terms set forth in a purchase agreement dated May 29, 1997 (the "Purchase
Agreement"), 500,000 of the Trust's Reset Asset Capital Securities, liquidation
amount $1,000 per Capital Security (the "Liquidation Amount") (including any
securities issued in exchange therefor, the "Capital Securities"), the payment
of which will be guaranteed by National City Corporation, a Delaware corporation
(the "Company") to the extent set forth in a guarantee agreement dated of even
date herewith (the "Guarantee"). The proceeds of the sale by the Trust of the
Capital Securities and its Common Securities, liquidation amount $1,000 per
Common Security (the "Common Securities"), are to be invested in the Junior
Subordinated Debt Securities of the Company having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities and the
Common Securities (including any securities issued in exchange therefor, the
"Junior Subordinated Debt Securities"). The Junior Subordinated Debt Securities
will be distributed to holders of the Capital Securities in certain
circumstances (each, a "Distribution Event").
2
2
The Junior Subordinated Debt Securities will bear interest at
the applicable rate (the "Applicable Rate"). Holders of the Capital Securities
will be entitled to receive cumulative cash distributions equal to the
Applicable Rate applied to the Liquidation Amount per Capital Security, accruing
from the original date of issuance of the Capital Securities (the "Issue Date").
Prior to June 1, 1999 (or if such date is not a business day, the succeeding
business day) (the "Rate Reset Date"), the Applicable Rate will be 6.75% per
annum. The Applicable Rate on and after the Rate Reset Date will be equal to the
rate per annum resulting on the Rate Reset Pricing Date (as defined below) from
the implementation of auction procedures (the "Auction Procedures") pursuant to
which existing holders of beneficial ownership interests in the Capital
Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities) ("Existing Holders") and other persons may
determine to hold or offer to sell or, based on rates offered to them, offer to
purchase Capital Securities (or, if a Distribution Event shall have occurred,
Junior Subordinated Debt Securities). Existing Holders and other persons will
submit these determinations to hold or offers to sell or purchase to UBS, as
remarketing agent (the "Remarketing Agent") under a remarketing agreement
between the Company and UBS dated June 6, 1997 (the "Remarketing Agreement"),
prior to 1:00 p.m. (the "Submission Deadline") on the business day five business
days prior to the Rate Reset Date (the "Submission Date"). Pursuant to the
Remarketing Agreement, the Remarketing Agent will submit all the determinations
to hold or offers to sell or purchase received by it prior to the Submission
Deadline, along with certain deemed offers to sell and the Maximum Applicable
Rate (as defined herein), to the auction agent prior to 10:00 a.m. on the
business day following the Submission Date. The implementation of the Auction
Procedures will occur on the third business day preceding the Rate Reset Date
(the "Rate Reset Pricing Date") and will hereinafter be referred to as the "Rate
Reset Auction."
As used in this Agreement, the terms "rates" and "rates per
annum" shall include rates and rates per annum expressed as or determined by
reference to a spread to a specified United States Treasury security.
This is to confirm the agreement between The Bank of New York
and the Company for The Bank of New York to act as auction agent (together with
any successor or assign, the "Auction Agent") in connection with the Rate Reset
Auction.
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following
3
3
meanings (terms defined in the singular shall include the plural):
"ADMINISTRATIVE TRUSTEES" means the individuals named as
administrative trustees in the Amended and Restated Declaration of Trust (the
"Declaration of Trust") relating to the Trust among the Company, as depositor,
The Bank of New York, as property trustee, The Bank of New York (Delaware), as
Delaware trustee, and the individuals named as administrative trustees
therein, or their successors or assigns as such trustees.
"AUTHORIZED OFFICER" means each Senior Vice President, Vice
President, Assistant Vice President, Senior Trust Officer and Trust Officer of
the Auction Agent assigned to its Corporate Trust Department and every other
officer or employee of the Auction Agent designated as an Authorized Officer for
purposes hereof in a communication to the Company.
"BID" means an Order (i) indicating the Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of outstanding Junior Subordinated Debt Securities), if
any, that an Existing Holder desires to continue to hold if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or (ii) indicating the Liquidation Amount of outstanding
Capital Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding Junior Subordinated Debt Securities), if any,
that a Potential Holder desires to purchase if the Applicable Rate on and after
the Rate Reset Date is not less than the rate per annum specified by such
Potential Holder.
"BUSINESS DAY" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or a day on
which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
"COMPANY OFFICER" means the Chairman of the Board of Directors
of the Company, the President, each Vice President (whether or not designated by
a number or word or words added before or after the title Vice President), the
Secretary, the Treasurer, each Assistant Secretary and each Assistant Treasurer
of the Company and every other officer or employee of the Company designated as
a Company Officer for purposes hereof in a notice to the Auction Agent.
4
4
"DEBENTURE TRUSTEE" means The Bank of New York, as trustee
under the Indenture, or its successor or assign as such trustee.
"DELAWARE TRUSTEE" means The Bank of New York (Delaware), as
Delaware trustee for the Amended and Restated Declaration of Trust relating to
the Trust among the Company, as depositor, The Bank of New York, as property
trustee, The Bank of New York (Delaware), as Delaware trustee, and the
individuals named as administrative trustees therein, or its successor or assign
as such trustee.
"HOLD ORDER" means an Order indicating the Liquidation Amount
of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder desires to continue to hold
without regard to the Applicable Rate on and after the Rate Reset Date.
"INDENTURE" means the indenture, as supplemented from time to
time, between the Company and the Debenture Trustee, under which the Junior
Subordinated Debt Securities are to be issued as a separate series.
"ISSUER TRUSTEES" means, collectively, the Administrative
Trustee, the Delaware Trustee and the Property Trustee.
"MAXIMUM APPLICABLE RATE" means the Treasury Rate (as defined
in Section 2.02 of the Indenture) on the Rate Reset Pricing Date plus 5.0% per
annum.
"ORDER" means any Hold Order, Bid or Sell Order communicated
or deemed communicated to the Remarketing Agent in writing on a form provided by
the Company and approved by the Remarketing Agent for the purpose.
"PERSON" means any individual, corporation, association,
company, joint-stock company, business trust, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"POTENTIAL HOLDER" means an Existing Holder or other Person
who makes a Bid to purchase Capital Securities (or, if a Distribution Event
shall have occurred, Junior Subordinated Debt Securities) if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or other Person.
5
5
"PROPERTY TRUSTEE" means The Bank of New York, as property
trustee for the Amended and Restated Declaration of Trust relating to the Trust
among the Company, as depositor, The Bank of New York, as property trustee, The
Bank of New York (Delaware), as Delaware trustee, and the individuals named as
administrative trustees therein, or its successor or assign as such trustee.
"SELL ORDER" means (i) an Order indicating the Liquidation
Amount of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder offers to sell without regard to
the Applicable Rate on and after the Rate Reset Date, or (ii) a Sell Order
deemed by the Remarketing Agent to have been submitted by an Existing Holder
because an Order or Orders covering the entire outstanding Liquidation Amount of
Capital Securities (or, if a Distribution Event shall have occurred, the entire
outstanding principal amount of Junior Subordinated Debt Securities) held by
such Existing Holder was not submitted to the Remarketing Agent prior to the
Submission Deadline.
"SUBMISSION DATE" means the business day five business days
prior to the Rate Reset Date.
"SUBMISSION DEADLINE" means 1:00 p.m. on the Submission Date.
"SUBMITTED BID" means, after the Submission Deadline, all Bids
submitted by Existing Holders or Potential Holders through the Remarketing Agent
to the Auction Agent.
"SUBMITTED HOLD ORDER" means, after the Submission Deadline,
all Hold Orders submitted by Existing Holders through the Remarketing Agent to
the Auction Agent.
"SUBMITTED SELL ORDER" means, after the Submission Deadline,
all Sell Orders submitted or deemed submitted by Existing Holders through the
Remarketing Agent to the Auction Agent.
"SUFFICIENT CLEARING BIDS" means an amount of Submitted Bids
by Potential Holders such that the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the principal
amount of outstanding Junior Subordinated Debt Securities) that is the subject
of such Submitted Bids with rates not higher than the Maximum Applicable Rate
equals or exceeds the Liquidation Amount of outstanding Capital Securities (or,
if a Distribution Event shall have occurred, the principal amount of outstanding
Junior Subordinated Debt
6
6
Securities) that is the subject of Submitted Sell Orders (including the
Liquidation Amount of Capital Securities (or, if a Distribution Event shall
have occurred, the principal amount of Junior Subordinated Debt Securities) as
to which Sell Orders are deemed to have been submitted and the Liquidation
Amount of Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of Junior Subordinated Debt Securities) subject to Bids by
Existing Holders specifying rates higher than the Maximum Applicable Rate).
2. APPOINTMENT OF AUCTION AGENT; OBLIGATIONS OF AUCTION AGENT.
(a) Subject to the terms and conditions herein contained, the Company hereby
appoints The Bank of New York, and The Bank of New York hereby accepts such
appointment, as the Auction Agent in connection with the Rate Reset Auction.
(b) The Auction Agent hereby agrees that it will assemble all
Orders submitted to it by the Remarketing Agent prior to 10:00 a.m. on the
business day following the Submission Date and will determine whether one or
more of the submitted Orders cover, in the aggregate, more than the Liquidation
Amount of Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of the Junior Subordinated Debt Securities) held by any
Existing Holder. If so, the Auction Agent hereby agrees that it will consider
such Orders valid in the following order of priority:
(i) all Hold Orders shall be considered valid, but only up to
and including the Liquidation Amount of outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of outstanding Junior Subordinated Debt Securities) held by such
Existing Holder;
(ii)(A) any Bid shall be considered valid up to and including
the excess of the Liquidation Amount of outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of outstanding Junior Subordinated Debt Securities) held by such
Existing Holder over the aggregate Liquidation Amount of Capital
Securities (or, if a Distribution Event shall have occurred, the
aggregate principal amount of Junior Subordinated Debt Securities)
subject to any Hold Orders referred to in clause (i) above;
(B) subject to subclause (A), if more than one Bid with the
same rate is submitted by such Existing Holder and the aggregate
Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the aggregate principal amount
of
7
7
outstanding Junior Subordinated Debt Securities) subject to such Bids
is greater than such excess, such Bids shall be considered valid
up to and including the amount of such excess;
(C) subject to subclause (A), if more than one Bid with
different rates is submitted by such Existing Holder, such Bids shall
be considered valid in the ascending order of their respective rates up
to the amount of such excess; and
(D) in any such event, the aggregate Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal amount of outstanding Junior
Subordinated Debt Securities), if any, subject to Bids not valid under
this clause (ii) shall be treated as the subject of a Bid by a
Potential Holder; and
(iii) all Sell Orders shall be considered valid but only up to
and including the excess of the Liquidation Amount of outstanding
Capital Securities (or, if a Distribution Event shall have occurred,
the excess of the principal amount of outstanding Junior Subordinated
Debt Securities) held by such Existing Holder over the aggregate
Liquidation Amount of Capital Securities (or, if a Distribution Event
shall have occurred, the aggregate principal amount of Junior
Subordinated Debt Securities) subject to Hold Orders referred to in
clause (i) above and valid Bids referred to in clause (ii) above.
(c) The Auction Agent hereby agrees that it will, if any rate
specified in any Bid contains more than three figures to the right of the
decimal point, round such rate up to the next highest one-thousandth (.001) of
1%.
(d) The Auction Agent hereby agrees that it will reject any
Order covering an aggregate Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, aggregate principal amount of Junior
Subordinated Debt Securities) not equal to $100,000 or an integral multiple of
$100,000 in excess thereof.
(e) The Auction Agent hereby agrees that it will determine
whether any Bids specify a rate higher than the Maximum Applicable Rate and will
(i) treat any such Bids as a Sell Order if submitted by an Existing Holder and
(ii) reject any such Bids if submitted by a Potential Holder.
(f) The Auction Agent hereby agrees that it will assemble all
Orders submitted or deemed submitted to it by the Remarketing Agent prior to
10:00 a.m. on the business
8
8
day following the Submission Date and will determine the excess of the
Liquidation Amount of outstanding Capital Securities (or, if a Distribution
Event shall have occurred, the excess of the principal amount of outstanding
Junior Subordinated Debt Securities) over the Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities) subject to Submitted Hold Orders (such excess, the "Available
Capital Securities", or, if a Distribution Event shall have occurred, the
"Available Junior Subordinated Debt Securities") and whether Sufficient
Clearing Bids have been made in the Rate Reset Auction.
(g) The Auction Agent hereby agrees that it will, if
Sufficient Clearing Bids have been made (other than because all of the
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
all of the outstanding Junior Subordinated Debt Securities) are subject to
Submitted Hold Orders), determine the lowest rate per annum specified in the
Submitted Bids (the "Winning Bid Rate") which, taking into account the rates in
the Submitted Bids by Existing Holders, would result in Existing Holders which
submitted Submitted Bids continuing to hold an aggregate Liquidation Amount of
Capital Securities (or, if a Distribution Event shall have occurred, aggregate
principal amount of Junior Subordinated Debt Securities) which, when added to
the Liquidation Amount of outstanding Capital Securities (or, if a Distribution
Event shall have occurred, the principal amount of outstanding Junior
Subordinated Debt Securities) to be purchased by Potential Holders, based on the
rates in the Submitted Bids submitted by them, would equal not less than the
Available Capital Securities (or, if a Distribution Event shall have occurred,
the Available Junior Subordinated Debt Securities).
(h) The Auction Agent hereby agrees that it will, if
Sufficient Clearing Bids have been made (other than because all of the
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
all of the outstanding Junior Subordinated Debt Securities) are subject to
Submitted Hold Orders) and subject to paragraph (i) below, accept or reject
Submitted Bids so that Existing Holders and Potential Holders of Capital
Securities (or, if a Distribution Event shall have occurred, Junior Subordinated
Debt Securities) sell, continue to hold (it being understood that Existing
Holders which submitted Hold Orders shall continue to hold the Capital
Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities) subject to such Hold Orders) and/or purchase
Capital Securities (or, if a Distribution Event shall have occurred, Junior
Subordinated Debt Securities) as set forth below:
9
9
(i) each Existing Holder that submitted a Submitted Sell Order
or a Submitted Bid specifying a rate higher than the Winning Bid Rate
shall sell the Liquidation Amount of outstanding Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount
of outstanding Junior Subordinated Debt Securities) subject to such
Submitted Sell Order or Submitted Bid;
(ii) each Existing Holder that submitted a Submitted Bid
specifying a rate lower than the Winning Bid Rate shall continue to
hold the Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to such
Submitted Bid;
(iii) each Potential Holder that submitted a Submitted Bid
specifying a rate lower than the Winning Bid Rate shall purchase the
Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to such
Submitted Bid;
(iv) each Existing Holder that submitted a Submitted Bid
specifying a rate equal to the Winning Bid Rate shall continue to hold
the Liquidation Amount of outstanding Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to such
Submitted Bid, unless the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding Junior Subordinated Debt Securities)
subject to all such Submitted Bids is greater than the excess of the
Available Capital Securities (or, if a Distribution Event shall have
occurred, the excess of the Available Junior Subordinated Debt
Securities) over the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding Junior Subordinated Debt Securities)
accounted for in clauses (ii) and (iii) above, in which event each
Existing Holder with such a Submitted Bid shall sell a Liquidation
Amount of outstanding Capital Securities (or, if a Distribution Event
shall have occurred, a principal amount of outstanding Junior
Subordinated Debt Securities) subject to such Submitted Bid determined
on a pro rata basis based on the aggregate Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal
10
10
amount of outstanding Junior Subordinated Debt Securities) subject to
all such Submitted Bids by such Existing Holders; and
(v) each Potential Holder that submitted a Submitted Bid
specifying a rate equal to the Winning Bid Rate shall purchase any
Available Capital Securities (or, if a Distribution Event shall have
occurred, any Available Junior Subordinated Debt Securities) not
accounted for in clauses (ii), (iii) or (iv) above on a pro rata basis
based on the Liquidation Amount of outstanding Capital Securities (or,
if a Distribution Event shall have occurred, the principal amount of
outstanding Junior Subordinated Debt Securities) subject to all such
Submitted Bids.
(i) The Auction Agent hereby agrees that, if as a result of
the procedures enumerated in this Section 2, any Existing Holder would be
entitled or required to sell, or any Potential Holder would be entitled or
required to purchase, a Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, a principal amount of Junior
Subordinated Debt Securities) that is not equal to $100,000 or an integral
multiple of $100,000 in excess thereof, it will, in such manner as is in its
sole discretion, round up or down the Liquidation Amount of Capital Securities
(or, if a Distribution Event shall have occurred, the principal amount of Junior
Subordinated Debt Securities) being sold or purchased in the Rate Reset Auction
so that the Liquidation Amount of Capital Securities (or, if a Distribution
Event shall have occurred, the principal amount of Junior Subordinated Debt
Securities) sold or purchased by each Existing Holder or Potential Holder shall
be equal to $100,000 or an integral multiple of $100,000 in excess thereof.
(j) The Auction Agent hereby agrees that, if as a result of
the procedures enumerated in this Section 2, any Potential Holder would be
entitled or required to purchase less than $100,000 Liquidation Amount of
Capital Securities (or, if a Distribution Event shall have occurred, less than
$100,000 principal amount of Junior Subordinated Debt Securities), it will, in
such manner as is in its sole discretion, allocate Liquidation Amounts of
Capital Securities (or, if a Distribution Event shall have occurred, principal
amounts of Junior Subordinated Debt Securities) for purchase among Potential
Holders so that only Liquidation Amounts of Capital Securities (or, if a
Distribution Event shall have occurred, principal amounts of Junior Subordinated
Debt Securities) equal to $100,000 or an integral multiple in excess thereof are
purchased by any such Potential Holder, it being understood that the Auction
Agent will effect such allocation even if one or more
11
11
Potential Holders who would otherwise be entitled or required to do so will be
as a result prevented thereby from purchasing Capital Securities (or, if a
Distribution Event shall have occurred, Junior Subordinated Debt Securities).
(k) The Auction Agent hereby agrees that it will, if
applicable, advise the Remarketing Agent, the Company, the Issuer Trustees and
the Debenture Trustee of the Winning Bid Rate by 9:00 a.m. on the Rate Reset
Pricing Date.
(l) The Auction Agent hereby agrees that it will, if
applicable, advise the Remarketing Agent, the Company, the Issuer Trustees and
the Debenture Trustee by 9:00 a.m. on the Rate Reset Pricing Date if all of the
outstanding Capital Securities (or, if a Distribution Event shall have
occurred, all of the outstanding Junior Subordinated Debt Securities) are
subject to Submitted Hold Orders.
(m) The Auction Agent hereby agrees that it will, if
applicable, advise the Remarketing Agent, the Company, the Issuer Trustees and
the Debenture Trustee by 9:00 a.m. on the Rate Reset Pricing Date that
Sufficient Clearing Bids were not made in the Rate Reset Auction.
(n) The Auction Agent will be entitled to rely on all Orders
submitted or deemed submitted to it and the Maximum Applicable Rate submitted to
it, in each case by the Remarketing Agent prior to 10:00 a.m. on the business
day following the Submission Date.
3. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
THE COMPANY. (a) The Company represents, warrants, covenants and agrees with the
Auction Agent as follows:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware
and is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended, and has all necessary power and
authority to execute and deliver this Agreement and to authorize,
create and issue the Capital Securities, Common Securities and Junior
Subordinated Debt Securities;
(ii) this Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Auction Agent, constitutes the legal,
valid and binding obligation of the Company subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium,
receivership or similar laws, whether statutory or decisional, relating
to or
12
12
affecting creditors' rights and to general equitable principles
(regardless of whether enforcement is sought in equity or at law);
(iii) the form of the respective certificates evidencing the
Capital Securities, Common Securities and Junior Subordinated Debt
Securities complies with all applicable laws of the State of Delaware;
(iv) the Capital Securities, Common Securities and Junior
Subordinated Debt Securities, when issued, delivered and paid for on
the Issue Date as contemplated by the Purchase Agreement, will have
been duly authorized, validly issued, fully paid and nonassessable;
(v) no consent, authorization or order of, or filing or
registration with, any court, governmental agency or official (except
such as have been obtained and such as may be required under the
Securities Act of 1933, as amended, or the Investment Company Act
or under the blue sky or state securities laws) is required in
connection with the execution and delivery of this Agreement or the
issuance of the Capital Securities, Common Securities or Junior
Subordinated Debt Securities; and
(vi) the issuance and sale of the Capital Securities, Common
Securities and Junior Subordinated Debt Securities, the execution,
delivery and performance of this Agreement, compliance by the Company
with all provisions hereof, and the consummation of the transactions
contemplated hereby or by the Purchase Agreement will not conflict
with, constitute a breach of any of the terms or provisions of, or a
default under, or result in the creation or imposition of any material
lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, any agreement, indenture or instrument to
which the Company is a party or by which the Company is bound, or
result in a violation of the Declaration of Trust or by-laws of the
Company or of any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or its
property which conflict, breach, default, lien or violation,
individually or in the aggregate, would have a material adverse effect
on the business, financial position or results of operations of the
Company.
4. DUTIES AND RESPONSIBILITIES OF THE AUCTION AGENT. (a) The
Auction Agent is acting solely as agent for the Company hereunder and owes no
fiduciary duties to any other Person by reason of this Agreement.
13
13
(b) The Auction Agent undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Auction
Agent.
(c) In the absence of bad faith or gross negligence on its
part, the Auction Agent shall not be liable for any action taken, suffered, or
omitted or for any error of judgment made by it in the performance of its duties
under this Agreement except that the Auction Agent shall be liable for any error
of judgment made in good faith if the Auction Agent shall have been grossly
negligent in ascertaining the pertinent facts.
(d) Any funds deposited with the Auction Agent by the Company
for any reason that remain with the Auction Agent after 12 months shall be
repaid to the Company upon the written request of the Company.
5. RIGHTS OF THE AUCTION AGENT. (a) The Auction Agent may rely
and shall be protected in acting or refraining from acting upon any
communication authorized hereby and upon any written instruction, notice,
request, direction, consent, report, certificate or other instrument, paper or
document believed by it to be genuine.
(b) The Auction Agent may consult with counsel reasonably
acceptable to the Company and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend
or risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder.
6. AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no
representation as to the validity or adequacy of this Agreement (except as to
the Auction Agent's duties hereunder and as to the due authorization, execution
and delivery of this Agreement), or the Capital Securities, Common Securities or
Junior Subordinated Debt Securities.
7. COMPENSATION, EXPENSES AND INDEMNIFICATION. (a) The Company
shall pay the Auction Agent from time to time reasonable compensation for all
services rendered by it under this Agreement in such amounts as may be agreed to
by the Company and the Auction Agent from time to time.
(b) The Company shall reimburse the Auction Agent upon its
request for all reasonable expenses, disbursements
14
14
and advances incurred or made by the Auction Agent in accordance with any
provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel), except any expense or disbursement
attributable to its gross negligence or bad faith.
(c) The Company shall indemnify the Auction Agent for and hold
it harmless against, any loss, liability or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection with its
agency under this Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with its exercise or
performance of its duties hereunder for which indemnification is provided by
this subsection.
8. MISCELLANEOUS. (a) The term of this Agreement is unlimited
unless it shall be terminated as provided in this Section 8(a). The Company may
terminate this Agreement any time by so notifying the Auction Agent in writing,
provided that the Company has entered into an agreement in substantially the
form of this Agreement with a successor trust company. The Auction Agent may
terminate this Agreement upon written notice to the Company, such termination to
be effective on the date on which a successor trust company is appointed by the
Company pursuant to an agreement containing substantially the same terms and
conditions as this Agreement. If the agreement of appointment shall not have
been delivered to the Company within 30 days after giving of such notice of
resignation, the Auction Agent may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor trust
company to serve as Auction Agent in connection with the Rate Reset Auction.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Company and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The Company's
obligations under Section 7 hereof and its representations and warranties
contained in Section 3 hereof shall survive the termination hereof. Upon
termination of this Agreement, the Auction Agent shall, at the Company's
request, promptly deliver to the Company copies of all books and records
maintained by it in connection with its duties hereunder.
15
15
(c) All notices, requests and other communications to any
party hereunder shall be in writing (including telecopy or similar writing)
given to such person at its address or telecopy number set forth below:
The Auction Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Corporate Trust Administration
Facsimile: (000) 000-0000
The Company:
The address set forth on the first page of this
Agreement.
Attention: Corporate Treasury
Facsimile: (000) 000-0000
The Remarketing Agent:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
or to such other address as the party to whom the communication is addressed
shall have previously communicated to the other party. Communications shall be
given on behalf of the Company by a Company Officer and on behalf of the Auction
Agent by an Authorized Officer. Communications shall be effective when received
at the proper address.
(d) This Agreement contains the entire agreement between the
parties relating to the subject matter hereof, and there are no other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties.
(e) Nothing herein, express or implied, shall give to any
Person, other than the Company, the Auction Agent and their respective
successors and assigns, any
16
16
benefit of any legal or equitable right, remedy or claim hereunder.
(f) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged. Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such rights or remedies with respect to any
subsequent breach.
17
(g) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the respective successors of each of the Company and
the Auction Agent.
(h) If any clause, provision or section hereof shall be ruled
invalid or unenforceable by any court of competent jurisdiction, the invalidity
or unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
(i) This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
(j) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
THE BANK OF NEW YORK,
by /s/ X. Xxxxxxx
----------------------
XXXXXXXX XXXXXXX
Title: Assistant Treasurer
Accepted and agreed to as of
the date first above written:
NATIONAL CITY CORPORATION,
by /s/ Xxxxxxx X. Xxxxx
------------------------------------
Title: Executive Vice President and
Senior Investment Officer
Acknowledged and accepted as
of the date first above written:
UBS SECURITIES LLC,
by /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Managing Director
