EXHIBIT 4(e)
====================================
FIRST SUPPLEMENTAL INDENTURE
between
FIRST CHICAGO NBD CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of January , 1997
=====================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms .................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount........................ 3
SECTION 2.2. Maturity ............................................... 4
SECTION 2.3. Form and Payment........................................ 4
SECTION 2.4. Global Debenture........................................ 5
SECTION 2.5. Interest................................................ 6
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment
Event Redemption........................................ 7
SECTION 3.2. Optional Redemption by Company.......................... 7
SECTION 3.3. No Sinking Fund......................................... 8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.................... 8
SECTION 4.2. Notice of Extension..................................... 9
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses..................................... 10
SECTION 5.2. Payment Upon Resignation or Removal..................... 11
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.................................. 11
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture....................................... 11
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.............................. 20
i
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture............................... 20
SECTION 9.2. Trustee Not Responsible for Recitals.................... 20
SECTION 9.3. Governing Law........................................... 21
SECTION 9.4. Separability............................................ 21
SECTION 9.5. Counterparts............................................ 21
ii
FIRST SUPPLEMENTAL INDENTURE, dated as of January , 1997 (the "First
Supplemental Indenture"), between First Chicago NBD Corporation, a Delaware
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
"Trustee"), under the Indenture dated as of January 1, 1997 between the Company
and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its % Junior Subordinated Deferrable Interest Debentures due (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, First Chicago NBD Capital I, a Delaware statutory business
trust (the "Trust"), has offered to the public $ million aggregate
liquidation amount of its % Preferred Securities (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $
million aggregate liquidation amount of its % Common Securities, in $
million aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture pursuant to Sections 3.01 and 9.01 of
the Indenture and all requirements necessary to make this First Supplemental
Indenture a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this First Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Treatment Event; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Institutional Trustee; (vi) Institutional
Trustee Account; (vii) Preferred Security Certificate; (viii) Pricing Agreement;
(ix) Regular Trustees; (x) Tax Event; and (xi) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
---------------
"Compounded Interest" shall have the meaning
-------------------
set forth in Section 4.1.
"Declaration" means the Amended and Restated Decla ration of Trust of
-----------
First Chicago NBD Capital I, a Delaware statutory business trust, dated as of
January 1, 1997.
"Deferred Interest" shall have the meaning set
-----------------
forth in Section 4.1.
"Depositary", with respect to the Debentures, means The Depository
----------
Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust by the Regular
-----------------
Trustees in accordance with the Declaration, and the distribution of the
Debentures held by the Institutional
2
Trustee to the holders of the Trust Securities issued by the Trust pro rata in
--- ----
accordance with the Declaration.
"Extension Conditions" means the following conditions: (i) the
--------------------
Company is not in bankruptcy, otherwise insolvent or in liquidation; (ii) the
Company is not in default in the payment of any interest or principal on the
Debentures; (iii) the Trust is not in arrears on payments of distributions on
the Preferred Securities and no deferred distributions are accumulated; and (iv)
the Debentures are rated not less than BBB- by Standard & Poor's Ratings
Service, or Baa3 by Moody's Investors Service, Inc., or not less than the
equivalent by any other nationally recognized statistical rating organization.
"Global Debenture" shall have the meaning set forth in Section 2.4.
----------------
"Maturity Date" shall have the meaning set forth in Section 2.2(a).
-------------
"Non Book-Entry Preferred Securities" shall have the meaning set
-----------------------------------
forth in Section 2.4.
"Preceding Maturity Date" shall have the meaning set forth in
-----------------------
Section 2.2(c).
"Redemption Price" shall mean, with respect to any redemption of the
----------------
Debentures pursuant to Article III hereof, an amount in cash equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
"Scheduled Maturity Date" shall mean ________, ____.
-----------------------
"Trust Securities" shall mean the Preferred
----------------
Securities and the Common Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the " %
Junior Subordinated Deferrable Interest Debentures due ", limited in aggregate
principal amount to $ , 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.
3
SECTION 2.2. Maturity.
--------
(a) 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), which date shall be the Scheduled
Maturity Date unless the Maturity Date has been changed pursuant to this Section
2.2, in which case the Maturity Date shall be the Maturity Date most recently
established in accordance with such Section 2.2.
(b) The Company may at any time elect to change the Maturity Date to
a date earlier than the Scheduled Maturity Date, but in no event to a date
earlier than __________, ____, subject to the approval of the Federal Reserve if
such approval is then required under applicable law or capital guidelines of the
Federal Reserve and such election shall be made, and such change in the Maturity
Date shall be effective, on such date as specified in the notice thereof given
in accordance with Section 2.2(d).
(c) The Company may at any time before the date which is 90 days
before the Maturity Date, elect to extend the Maturity Date for one or more
periods, but in no event to a date later than ____________, ____, if as of the
date such election is made the Extension Conditions are satisfied. Such
election shall be made, and such extension of the Maturity Date shall be
effective, on such date as specified in the notice thereof given in accordance
with Section 2.2(d); provided that if the Extension Conditions are not also
--------
satisfied on the Maturity Date in effect prior to such extension (the "Preceding
Maturity Date"), then on the Preceding Maturity Date, the Maturity Date shall be
automatically changed, without any action on the part of the Company, the
Trustee or any other Person, to be the Preceding Maturity Date.
(d) If the Company elects to change the Maturity Date pursuant to
Section 2.2(b) or (c), the Company shall give prompt written notice thereof to
the Trustee, and the Trustee shall give written notice of the change in the
Maturity Date to the Holders of the Debentures no less than 30 days and no more
than 90 days prior to the effectiveness thereof. The Company shall deliver to
the Trustee together with the foregoing notices and, in the case of an extension
of the Maturity Date, on the Preceding Maturity Date, an Officers' Certificate
to the effect that the conditions to the foregoing changes to the Maturity Date
have been satisfied as of the date of such Certificate. Notice of any election
pursuant to Section 2(b) shall be given by the Company to the Trustee no earlier
than 45 days prior to effectiveness of the change to the Maturity Date.
SECTION 2.3. Form and Payment.
----------------
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons [in minimum
denominations of $_____ 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
4
office or agency of the Company as set forth in the last sentence of Section
5.02 of the Indenture; provided, however, that payment of interest may be made,
-------- -------
at the option of the Company, by check mailed to the Holder at such address as
shall appear in the Security Register or by wire transfer to an account
designated by a Holder in writing not less than ten days prior to the date of
payment. The Company selects each of the City of New York, New York and the City
of Chicago, Illinois as a Place of Payment for the Debentures and hereby
appoints The First National Bank of Chicago as Securities Registrar for the
Debentures. Notwithstanding the foregoing, so long as the Holder of any
Debentures is the Institutional Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Sums, if any) on such
Debentures held by the Institutional Trustee will be made at such place and to
such account as may be designated by the Institutional Trustee.
SECTION 2.4. Global Debenture.
----------------
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures (a "Global Debenture"), to be registered in the
name of the Depositary, or its nominee, and delivered by the Trustee to or
upon the order of the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees. The
Company upon any such presentation shall execute a Global Debenture in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this First
Supplemental Indenture. Payments on the Debentures issued as a Global
Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent beneficial interests in
Debentures presented to the Trustee by the Institutional Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Debenture, registered in the name of the holder of the
Preferred Security Certifi-
5
cate or the transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred Security Certificate
cancelled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this First
Supplemental Indenture. Upon the issuance of such Debentures, Debentures
with an equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
SECTION 2.5. Interest.
--------
(a) Each Debenture will bear interest at the rate of % per annum
(the "Coupon Rate") from ______________ until the principal thereof becomes due
and payable, and on any overdue principal at the Coupon Rate and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (su bject to the provisions of Article Four) quarterly in arrears on
[March 31, June 30, September 30 and December 31] of each year (each, an
"Interest Payment Date"), commencing on , 1997, to the Person in whose name such
Debenture or any predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which, in respect of
any Debentures of which the Institutional Trustee is the Holder or in the case
of a Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date. 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
[March 15, June 15, September 15 and December 15] prior to the applicable
Interest Payment Date.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in such a 30-day period. In the event
that any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such
6
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(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
by the Institutional Trustee as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had the
Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other government charges as a result of such Tax Event. The
payment of such Additional Sums will be subject to the provisions of Section
5.04 of the Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption.
-----------------------------------------------
If a Tax Event or a Capital Treatment Event has occurred and is
continuing then, notwithstanding Section 3.2(a) but subject to Section 3.2(c),
the Company shall have the right upon not less than 30 days nor more than 60
days notice to the Holders of the Debentures to redeem the Debentures, in whole,
but not in part, for cash within 90 days following the occurrence of such Tax
Event or Capital Treatment Event (the "90 Day Period") at the Redemption Price.
SECTION 3.2. Optional Redemption by Company.
------------------------------
(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article Four of the Indenture, except as otherwise may be specified in this
First Supplemental Indenture, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after __________,
____, at the Redemption Price. Any redemption pursuant to this paragraph will
be made upon not less than 30 days nor more than 60 days notice to the Holders
of the Debentures. If the Debentures are only partially redeemed pursuant to
this Section 3.2, the Debentures will be redeemed pro rata or by lot or by any
--- ----
other method utilized by the Securities Registrar; provided, that if at the time
--------
of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its
7
procedures, the principal amount of such Debentures benefically 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 or capital
guidelines of the Federal Reserve.
SECTION 3.3. No Sinking Fund.
---------------
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.
------------------------------------
Subject to Section 3.13 of the Indenture, the Company shall have the
right, at any time and from time to time during the term of the Debentures, to
defer payments of interest by extending the interest payment period of such
Debentures for an Extension Period not exceeding 20 consecutive quarters, during
which Extension Period no interest shall be due and payable; provided that no
-------- ----
Extension Period may end on a date other than an Interest Payment Date or extend
beyond the Maturity Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extension Period
("Compounded Interest"). At the end of the Extension Period, the Company shall
pay all interest accrued and unpaid on the Debentures, including any Additional
Sums and Compounded Interest (together, "Deferred Interest") that shall be
payable to the Holders of the Debentures in whose names the Debentures are
registered in the Security Register on the record date relating to the Interest
Payment Date in which the Extension Period ends. Before the termination of any
Extension Period, the Company may further defer payments of interest by further
extending such period, provided that such period, together with all such further
--------
extensions thereof, shall not exceed 20 consecutive quarters, or extend
beyond the Maturity Date of the Debentures. Upon the termination of any
Extension Period and the payment of all Deferred Interest then due, the
8
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.
-------------------
(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 the New York Stock Exchange or other 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.
9
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Debentures
to the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing 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.
10
Section 5.2. Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this First Supplemental Indenture or the Indenture
or the removal or resignation of the Trustee, unless otherwise stated, the
Company shall pay to the Trustee all amounts accrued under Section 8.07 of the
Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts accrued under said
Sections to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.
----------------------
If the Debentures are to be issued in connection with the distribution
of the Debentures to the holders of the Preferred Securities issued by the Trust
upon a Dissolution Event, the Company will use its best efforts to list such
Debentures on the New York Stock Exchange, Inc. or on such other exchange, if
any, as the Preferred Securities are then listed.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
-----------------
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT -This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street,
11
New York, New York) 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.
-------------
FIRST CHICAGO NBD CORPORATION
% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE
FIRST CHICAGO NBD CORPORATION, a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________ or
registered assigns, the principal sum of _____________ Dollars ($___________) on
, , (or on such date that is not earlier than _______, ____ or on such date
that is not later than ________, ____, if the Company elects to change the
Maturity Date as further described herein) and to pay interest on said principal
sum from , 1997, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
[March 31, June 30, September 30 and December 31] of each year commencing ,
1997, at the rate of % per annum until the principal hereof shall have become
due and payable, and at the same rate per annum on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) at the same rate per annum on any
overdue installment of interest compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. 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
12
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--which shall be the close of business on the [March 15, June 15,
September 15 or December 15] next preceding such Interest Payment Date, as
applicable.] Any such interest installment not punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name this Debenture
(or one or more Predecessor Securities) is registered at the close of business
on a special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be 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 these Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made, at
-------- -------
the option of the Company, by check mailed to the registered Holder at such
address as shall appear in the Security Register or by wire transfer to an
account designated by a Holder in writing not less than ten days prior to the
date of payment. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Institutional Trustee, the payment of the principal of (and
premium, if any) and interest on this Debenture will be made at such place and
to such account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and General Obligations, and
this Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and creditor in respect of General
Obligations, whether now outstanding or hereafter incurred, and waives reliance
by each such holder or creditor upon said provisions.
13
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.
FIRST CHICAGO NBD CORPORATION
By:______________________________________________
Name:
Title: Chairman of the Board or President
Attest:
By:_____________________
Name:
Title: Secretary or Assistant Secretary
14
(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"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of January 1, 1997, duly executed and delivered between
the Company and The Chase Manhattan Bank, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of January , 1997,
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities. By the terms of the Indenture, the Securities are
issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This Security is
one of the Series designated on the face hereof (the "Debentures") and is
limited in aggregate principal amount as specified in said First Supplemental
Indenture.
Upon the occurrence and continuation of a Tax Event or Capital
Treatment Event the Company shall have the right, subject to certain conditions
set forth in the Indenture, to redeem this Debenture in whole, but not in part,
at the Redemption Price within 90 days following the occurrence of such Tax
Event or Capital Treatment Event. In addition, the Company shall have the right
to redeem this Debenture, in whole or in part, at any time on or after
___________, ____, at the Redemption Price (anyone of the foregoing redemptions,
an
15
"Optional Redemption"). The "Redemption Price" means an amount in cash equal to
100% of the principal amount together with any accrued and unpaid interest
thereon, including Additional Sums and Compounded Interest, if any, to the date
of such redemption. Any redemption pursuant to this paragraph will be made upon
not less than 30 days nor more than 60 days notice. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
--- ----
by the Securities Registrar; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall determine
the principal amount of such Debentures beneficially held by each
Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion 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 Board of Governors of the
Federal Reserve System (the "Federal Reserve"), if such approval is then
required under applicable law or capital guidelines 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
16
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 aforesaid percentage in principal amount of
the Outstanding Securities of any series, the Holders of which are required to
consent to any such supplemental indenture 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 herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 20 consecutive quarters (an
"Extension Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Debentures to the extent that payment of such interest is
enforceable under applicable law);
17
provided that no Extension Period may end on a day other than an Interest
- -------- ----
Payment Date or last beyond the Maturity Date of the Debentures. Before the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters or extend
beyond the Maturity Date of the Debentures. Upon the termination of any such
Extension Period and the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
During any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu in all respects with or junior in interest
to the Debentures or make any 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 distribu tions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock of any class or series of preferred stock
of the Company under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any FCN Guarantee which is for the
benefit of the holders of Preferred Securities or Common Securities issued by
the Trust, (d) purchases of Common Stock related to the issuance of Common Stock
under any of the Company's benefit plans for its directors, officers or
employees and (e) obligations under any dividend reinvestment and stock purchase
plan).
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law or capital guidelines 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.
The Company may at any time elect to change the Maturity Date to a
date earlier than the Scheduled Maturity Date, but in no event to a date earlier
than __________, ____, subject to the approval of the Federal Reserve if such
approval is then required under applicable law or capital guidelines of the
Federal Reserve, and such election shall be made, and such change in the
Maturity Date shall be effective, on such date as specified in the notice
thereof given in accordance with the Inden ture. The Company may at any time
before the date in which is 90 days before the Maturity Date elect to extend the
Maturity Date for one or more periods, but in no event to a date later than
__________, ____, if as of the date such election is made the
18
Extension Conditions are satisfied. Such election shall be made, and such
extension of the Maturity Date shall be effective, on such date as specified in
the notice thereof given in accordance with the Indenture; provided that if the
--------
Extension Conditions are not also satisfied on the Preceding Maturity Date, then
on the Preceding Maturity Date, the Maturity Date shall be automatically
changed, without any action on the part of the Company, the Trustee or any other
Person, to be the Preceding Maturity Date.
If the Company elects to so change the Maturity Date of the
Debentures, the Company shall give prompt notice thereof to the Trustee, and the
Trustee shall give notice of such change of the Maturity Date to the Holders of
the Debentures no less than 30 days and no more than 90 days prior to the
effectiveness thereof.
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
19
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 there of.] As provided in the Indenture and subject to certain
limitations [herein and] therein set forth, Debentures [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 VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $ may,
upon execution of this First Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication as provided in Sections 3.01 and
3.03 of the Indenture.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 9.2. Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
20
SECTION 9.3. Governing Law.
-------------
This First Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 9.4. Separability.
------------
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.5. Counterparts.
------------
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
21
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
FIRST CHICAGO NBD CORPORATION
By_____________________________________
Name:
Title:
[Seal]
Attest:
By:___________________
THE CHASE MANHATTAN BANK,
as Trustee
By_____________________________________
Name:
Title:
Attest:
By:___________________
22