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Exhibit 4.8
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GUARANTEE AGREEMENT
Between
NATIONAL CITY CORPORATION
(as Guarantor)
and
THE BANK OF NEW YORK
(as Trustee)
Dated as of
_________________, 1997
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CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
------------------- -------------------
310(a) ................................................................ 4.01(a)
310(b) ................................................................ 4.01(c), 2.08
310(c) ................................................................ Inapplicable
311(a) ................................................................ 2.02(b)
311(b) ................................................................ 2.02(b)
311(c) ................................................................ Inapplicable
312(a) ................................................................ 2.02(a)
312(b) ................................................................ 2.03(b)
313(a) ................................................................ 2.03
313(b) ................................................................ 2.03
313(c) ................................................................ 2.03
313(d) ................................................................ 2.03
314(a) ................................................................ 2.04
314(b) ................................................................ Inapplicable
314(c) ................................................................ 2.05
314(d) ................................................................ Inapplicable
314(e) ................................................................ 1.01, 2.05,
3.02
314(f) ................................................................ 2.01, 3.02
315(a) ................................................................ 3.01(d)
315(b) ................................................................ 2.07
315(c) ................................................................ 3.01(c)
315(d) ................................................................ 3.01(d)
316(a) ................................................................ 1.01, 2.06,
5.04
316(b) ................................................................ 5.03, 5.04
316(c) ................................................................ 8.02
317(a) ................................................................ Inapplicable
317(b) ................................................................ Inapplicable
318(a) ................................................................ 2.01(b)
--------------------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any of
its terms or provisions.
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TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
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SECTION 1.01. Definitions..................................................... 2
ARTICLE II
Trust Indenture Act
-------------------
SECTION 2.01. Trust Indenture Act; Application................................ 6
SECTION 2.02. List of Holders................................................. 6
SECTION 2.03. Reports by the Guarantee Trustee................................ 7
SECTION 2.04. Periodic Reports to Guarantee Trustee........................... 7
SECTION 2.05. Evidence of Compliance with Conditions
Precedent..................................................... 7
SECTION 2.06. Events of Default; Waiver....................................... 7
SECTION 2.07. Event of Default; Notice........................................ 8
SECTION 2.08. Conflicting Interests........................................... 8
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
--------------------------------------------------
SECTION 3.01. Powers and Duties of the Guarantee
Trustee...................................................... 8
SECTION 3.02. Certain Rights of Guarantee Trustee............................ 10
SECTION 3.03. Indemnity...................................................... 12
SECTION 3.04. Expenses....................................................... 12
ARTICLE IV
Guarantee Trustee
-----------------
SECTION 4.01. Guarantee Trustee; Eligibility................................... 12
SECTION 4.02. Appointment, Removal and Resignation of
the Guarantee Trustee......................................... 13
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ARTICLE V
Guarantee
---------
SECTION 5.01. Guarantee...................................................... 13
SECTION 5.02. Waiver of Notice and Demand.................................... 14
SECTION 5.03. Obligations Not Affected....................................... 14
SECTION 5.04. Rights of Holders.............................................. 15
SECTION 5.05. Guarantee of Payment........................................... 15
SECTION 5.06. Subrogation.................................................... 15
SECTION 5.07. Independent Obligations........................................ 16
ARTICLE VI
Covenants and Subordination
---------------------------
SECTION 6.01. Subordination.................................................. 16
SECTION 6.02. Pari Passu Guarantees.......................................... 16
ARTICLE VII
Termination
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SECTION 7.01. Termination.................................................... 16
ARTICLE VIII
Miscellaneous
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SECTION 8.01. Successors and Assigns......................................... 17
SECTION 8.02. Amendments..................................................... 17
SECTION 8.03. Notices........................................................ 17
SECTION 8.04. Benefit........................................................ 18
SECTION 8.05. Interpretation................................................. 18
SECTION 8.06. Governing Law.................................................. 19
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GUARANTEE AGREEMENT, dated as of
____________, 1997, executed and delivered by
NATIONAL CITY CORPORATION, a Delaware corporation
(the "Guarantor") having its principal office at 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000- 3484, and
THE BANK OF NEW YORK, a New York banking corporation,
as trustee (the "Guarantee Trustee"), for the benefit
of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of
NATIONAL CITY CAPITAL TRUST I, a Delaware statutory
business trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as of June 6, 1997, executed by the
Company, as Depositor, The Bank of New York (Delaware), as Delaware Trustee, The
Bank of New York, as Property Trustee, and the Administrative Trustees named
therein, the Issuer issued $500,000,000 aggregate Liquidation Amount of its
Reset Asset Capital Securities, Liquidation Amount $1,000 per security (the "Old
Capital Securities"), and $15,463,918 aggregate Liquidation Amount of its Common
Securities, Liquidation Amount $1,000 per security (the "Common Securities"),
representing undivided beneficial ownership interests in the assets of the
Issuer and having the terms set forth in the Declaration of Trust in a
transaction not subject to the registration requirements of the Securities Act
of 1933, as amended (the "Act");
WHEREAS the Old Capital Securities and the Common Securities
were issued by the Issuer and the proceeds thereof were used by the Issuer to
purchase Junior Subordinated Debt Securities, due June 1, 2029 (the "Old Junior
Subordinated Debt Securities") of the Guarantor, which have been exchanged for
Exchange Junior Subordinated Debt Securities due June 1, 2029 of the Guarantor
(the "Exchange Junior Subordinated Debt Securities," and together with the Old
Junior Subordinated Debt Securities, collectively the "Junior Subordinated Debt
Securities"), which Exchange Junior Subordinated Debt Securities will be
deposited with The Bank of New York, as Property Trustee under the Declaration
of Trust, as trust assets;
WHEREAS as incentive for the Holders to purchase the Old
Capital Securities the Guarantor desired irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders of the Capital
Securities (as defined herein) the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein;
WHEREAS, the Guarantor and the Issuer agreed to conduct an
exchange offer pursuant to which the Old Capital Securities would be exchanged
for up to $500,000,000 aggregate Liquidation Amount of the Issuer's Exchange
Reset Asset Capital Securities,
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Liquidation Amount $1,000 per security (the "Exchange Capital Securities," and
together with the Old Capital Securities, collectively the "Capital Securities")
of the Issuer representing identical preferred individual beneficial interests
in the assets of the Issuer that have been registered under the Act and the
Guarantor agreed to exchange its guarantee of the Old Capital Securities for a
guarantee of the Exchange Capital Securities registered under the Act (the
Capital Securities and the Common Securities are collectively referred to herein
as the "Trust Securities"); and
WHEREAS, the guarantees provided by this Guarantee Agreement
with respect to the Exchange Capital Securities have been registered under the
Act.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Capital Securities, which purchase the Guarantor agreed shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Capital Securities.
ARTICLE I
Definitions
SECTION 1.01. DEFINITIONS. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings assigned to such
terms in the Declaration of Trust as in effect on the date hereof.
"Act" shall have the meaning specified in the recitals
of this Guarantee Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; PROVIDED, HOWEVER, that the Issuer
shall not be deemed to be an Affiliate of the Guarantor. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capital Securities" shall have the meaning specified in the recitals
of this Guarantee Agreement.
"Common Securities" shall have the meaning specified in the
recitals of this Guarantee Agreement.
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"Debt" means, with respect to any Person, (i) the principal of
and premium, if any, and unpaid interest on indebtedness for money borrowed,
(ii) purchase money and similar obligations, (iii) obligations under capital
leases, (iv) guarantees, assumptions or purchase commitments relating to, or
other transactions as a result of which the Company is responsible for the
payment of such indebtedness of others, (v) renewals, extensions and refunding
of any such indebtedness, (vi) interest or obligations in respect of any such
indebtedness accruing after the commencement of any insolvency or bankruptcy
proceedings and (vii) obligations associated with derivative products such as
interest rate and currency exchange contracts, foreign exchange contracts,
commodity contracts and similar arrangements.
"Declaration of Trust" shall have the meaning specified in the
recitals of this Guarantee Agreement.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement; PROVIDED,
HOWEVER, that, except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not have
cured such default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration of Trust) required to be
paid on the Capital Securities, to the extent the Issuer shall have funds on
hand available therefor at such time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to the Capital Securities called for redemption by the
Issuer to the extent the Issuer shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Issuer, unless Junior Subordinated Debt Securities are
distributed to the Holders of the Capital Securities or all of the Capital
Securities are redeemed, the lesser of (a) the aggregate of the Liquidation
Amount of $1,000 per Capital Security plus accrued and unpaid Distributions on
the Capital Securities to the date of payment (the "Liquidation Distribution")
to the extent the Issuer shall have funds on hand available to make such payment
at such time and (b) the amount of assets of the Issuer remaining available for
distribution to Holders of the Capital Securities upon liquidation of the Issuer
after satisfaction of liabilities to creditors of the Issuer as required by
applicable law.
"Guarantee Trustee" means The Bank of New York, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee
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Agreement and thereafter means each such Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Capital Securities; PROVIDED, HOWEVER, that in
determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as
of June 6, 1997, as supplemented and amended between the Guarantor and The Bank
of New York, as trustee, relating to the issuance of the Junior Subordinated
Debt Securities.
"Issuer" shall have the meaning specified in the
recitals of this Guarantee Agreement.
"List of Holders" has the meaning specified in Section
2.02(a).
"Majority in Liquidation Amount of the Capital Securities"
means, except as provided by the Trust Indenture Act, a vote by the Holder(s),
voting separately as a class of more than 50% of the aggregate Liquidation
Amount of all then Outstanding Capital Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer, President or a
Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each officer,
condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" when used with respect to the Guarantee
Trustee means any officer assigned to the Corporate Trust Office, including any
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Guarantee Agreement,
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Senior Debt" means (a) the principal of, and premium, if any,
and interest on all indebtedness of the Guarantor for money borrowed, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, (b) all obligations to make payment pursuant to the terms
of financial instruments, such as (i) securities contracts and foreign currency
exchange contracts, (ii) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts, and (iii) similar financial instruments; except, in the case
of both (a) and (b) above, such indebtedness and obligations that are expressly
stated to rank junior in right of payment to, or PARI PASSU in right of payment
with, the Junior Subordinated Debt Securities, (c) and indebtedness or
obligations of others of the kind described in both (a) and (b) above for the
payment of which the Guarantor is responsible or liable as guarantor or
otherwise, and (d) any deferrals, renewals or extensions of any such Senior
Debt; PROVIDED, HOWEVER, that Senior Debt shall not be deemed to include (i) any
Debt of the Guarantor which, when incurred and without respect to any election
under Section 1111(b) of the United States Bankruptcy Code of 1978, was without
recourse to the Guarantor, (ii) any Debt of the Guarantor to any of its
subsidiaries, (iii) Debt to any employee of the Guarantor, (iv) Debt which by
its terms is subordinated to trade accounts payable or accrued liabilities
arising in the ordinary course of business to the extent that payments made to
the holders of such debt by the holders of the Junior Subordinated Debt
Securities as a result of the subordination provisions of the Indenture would be
greater than
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such payments otherwise would have been as a result of any obligation of such
holders of such debt to pay amounts over to the obligees on such trade accounts
payable or accrued liabilities arising in the ordinary course of business as a
result of subordination provisions to which such Debt is subject and (v) any
other debt securities issued pursuant to the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended.
"Trust Securities" shall have the meaning specified in the
recitals of this Guarantee Agreement.
ARTICLE II
Trust Indenture Act
-------------------
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement will not be qualified under the
Trust Indenture Act except upon the effectiveness of a registration statement
with respect to this Guarantee Agreement pursuant to a registration rights
agreement as contemplated in Article XII of the Indenture.
(b) Upon qualification under the Trust Indenture Act as
contemplated in clause (a) above, if and to the extent that any provision of
this Guarantee Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.02. LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (i) semiannually, on or before May 15th and November 15th
of each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of a
date not more than 15 days prior to the delivery thereof, and (ii) at such other
times as the Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders as of a date not
more than 15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and is
not identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee
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Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), Section 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE.
(a) The Guarantee Trustee shall transmit to Holders such
reports concerning the Guarantee Trustee and its actions under this Guarantee as
may be required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than September 15th in
each calendar year, commencing with September 15, 1997.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Guarantee Trustee with each securities
exchange upon which the Capital Securities are listed and also with the
Securities and Exchange Commission. The Guarantor will promptly notify the
Guarantee Trustee whenever the Capital Securities are listed on any securities
exchange.
SECTION 2.04. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by any officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of the Capital Securities may, by vote, on behalf
of the Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to
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any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 2.07. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known to the Guarantee
Trustee, unless such Events of Default have been cured before the giving of such
notice; PROVIDED, that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee or a
trust committee of directors and/or Responsible Officers in good faith determine
that the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written notice of
such Event of Default.
SECTION 2.08. CONFLICTING INTERESTS. The Declaration of Trust
shall be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
--------------------------------------------------
SECTION 3.01. POWERS AND DUTIES OF THE GUARANTEE
TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder exercising his
or her rights pursuant to Section 5.04(iv) or to a Successor Guarantee Trustee
on acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
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(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.06), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically required
to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders
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of not less than a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Guarantee Agreement or indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by all
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
relating to compliance by the Guarantor with any of its obligations
contained in this Guarantee Agreement be proved or established before
taking, suffering or omitting to take any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or written opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any
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action taken, suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or opinion. Such legal counsel
may be legal counsel to the Guarantor or any of its Affiliates and may
be one of its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity reasonably satisfactory to it, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including
such reasonable advances as may be requested by the Guarantee Trustee;
PROVIDED, that nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received and (C) shall be fully protected in acting in accordance with
such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or
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obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Guarantee Trustee shall be unqualified or incompetent
in accordance with applicable law, to perform any such act or acts or to
exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
SECTION 3.03. INDEMNITY. The Guarantor agrees to indemnify the
Guarantee Trustee and its directors, officers, agents and employees for, and to
hold them harmless against, any and all loss, damage, claim, liability or
expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee will
not claim or exact any lien or charge on any Guarantee Payments as a result of
any amount due to it under this Guarantee Agreement. This indemnity shall
survive the termination of this Guarantee Agreement or the resignation or
removal of the Guarantee Trustee.
SECTION 3.04. EXPENSES. The Guarantor shall from time to time
reimburse the Guarantee Trustee for its expenses and costs incurred in
connection with the performance of its duties hereunder. This reimbursement
obligation shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
ARTICLE IV
Guarantee Trustee
-----------------
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY. (a)
There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(c) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
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(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.10(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF
THE GUARANTEE TRUSTEE.
(a) Subject to Section 4.02(b), in the absence of the
existence of an Event of Default, the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 30
days after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
---------
SECTION 5.01. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the
Issuer), as and when due, regardless
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of any defense, right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders. The Guarantor shall give
written notice to the Guarantee Trustee as promptly as practicable in the event
it makes any direct payment hereunder.
SECTION 5.02. WAIVER OF NOTICE AND DEMAND. The Guarantor
hereby waives notice of acceptance of the Guarantee Agreement and, with respect
to its obligations under Section 5.01, hereby waives presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.03. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee Agreement
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Capital
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than any extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Junior Subordinated Debt Securities as
so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Capital Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
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(e) any invalidity of, or defect or deficiency in, the
Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain the consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.04. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount of the Capital
Securities have the right among themselves, the other Holders, if any, and the
Guarantee Trustee to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer or any other Person.
SECTION 5.05. GUARANTEE OF PAYMENT. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Junior Subordinated Debt Securities to Holders as provided in
the Declaration of Trust.
SECTION 5.06. SUBROGATION. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Issuer in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee Agreement and
shall have the right to waive payment by the Issuer pursuant to Section 5.01;
PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee
Agreement, if at the time of any such payment, any amounts are
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due and unpaid under this Guarantee Agreement. If any amount shall be paid to
the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders. Any amounts paid over to and not subsequently recovered from the
Holders pursuant to any insolvency law shall be deemed to have been applied by
the Holders to the Guarantee Payments.
SECTION 5.07. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Capital Securities and that the Guarantor
shall (without duplication of amounts paid by or on behalf of the issuer) be
liable as principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.03
hereof.
ARTICLE VI
Covenants and Subordination
---------------------------
SECTION 6.01. SUBORDINATION. This Guarantee Agreement
will constitute an unsecured obligation of the Guarantor and will
rank subordinate and junior in right of payment to all Senior
Debt of the Guarantor.
SECTION 6.02. PARI PASSU GUARANTEES. This Guarantee Agreement
shall rank PARI PASSU with any similar guarantee agreements issued by the
Guarantor on behalf of the holders of trust securities issued by a trust created
by the Guarantor similar to National City Capital Trust I.
ARTICLE VII
Termination
-----------
SECTION 7.01. TERMINATION. This Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full payment of the
Redemption Price of all Capital Securities, (ii) the distribution of Junior
Subordinated Debt Securities to the Holders in exchange for all of the Capital
Securities or (iii) full payment of the amounts payable in accordance with the
Declaration of Trust upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must repay any sums
paid with respect to Capital Securities or this Guarantee Agreement.
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ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities then outstanding.
Except in connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article VIII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. AMENDMENTS. Except with respect to any changes
which do not adversely affect the rights of the Holders in any material respect
(in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not less
than a Majority in Liquidation Amount of the outstanding Capital Securities. The
provisions of Article VI of the Declaration of Trust concerning meetings of the
Holders shall apply to the giving of such approval.
SECTION 8.03. NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied
(confirmed by delivery of the original) or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below
or such other address, facsimile number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
NATIONAL CITY CORPORATION
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Treasury
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer
may, at the Issuer's direction, give notice to the Holders:
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NATIONAL CITY CAPITAL TRUST I
c/o National City Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Treasury
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.04. BENEFIT. This Guarantee Agreement is
solely for the benefit of the Holders and is not separately
transferable from the Capital Securities.
SECTION 8.05. INTERPRETATION. In this Guarantee
Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
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(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06 GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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.
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THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
NATIONAL CITY CORPORATION
By:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Guarantee
Trustee
By:
-----------------------------------------
Name:
Title:
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