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EXHIBIT 4.2
ISSUING AND PAYING AGENCY AGREEMENT
by and between
COMERICA BANK, as Issuer
and
COMERICA BANK, as Agent
Dated as of June 17, 1994
Relating to Medium-Term Bank Notes
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ISSUING AND PAYING AGENCY AGREEMENT
Issuing and Paying Agency Agreement dated as of June 17, 1994 (the
"Agreement") by and between COMERICA BANK, a Michigan banking corporation (the
"Issuer"), and COMERICA BANK, a Michigan banking corporation (together with its
successors and assigns, the "Agent").
The Issuer intends to authorize and issue from time to time, Medium-Term Bank
Notes in fully registered form in an aggregate principal amount at any one time
of up to $4,000,000,000 (the "Notes") for which the Agent by this Agreement
will be designated issuing, paying and calculation agent.
The Issuer has appointed Kidder, Peabody & Co. Incorporated, CS First Boston
Corporation, Salomon Brothers Inc, Lehman Brothers, Inc., and Morgan Stanley &
Co. Incorporated, as the selling agents for the Notes (the "Selling Agents")
pursuant to that certain Distribution Agreement dated of even date herewith
between the Issuer and the Selling Agents (the "Distribution Agreement").
Now, therefore, in consideration of the mutual covenants contained herein,
the Issuer and the Agent agree as follows:
Section 1. Appointment of Agent. The Issuer hereby appoints the
Agent to act, on the terms and conditions specified herein, as issuing and
paying agent and calculation agent for the Notes and the Agent accepts such
appointment subject to the terms of this Agreement.
Section 2. Defined Terms. Capitalized terms defined in the forms
of Fixed Rate Note and Floating Rate Note attached hereto as Exhibits A and B,
respectively, and used without definitions in this Agreement shall have the
respective meanings herein assigned therein.
Section 3. Global Notes: The Depository Trust Company.
Notwithstanding anything herein to the contrary, all Notes shall be represented
by one or more global Notes registered in the name of Cede & Co., as nominee of
The Depository Trust Company ("DTC"), and beneficial ownership of such Notes
will be represented and maintained in book-entry form on the books of DTC.
Section 4. Note Form: Signature. The Issuer from time to time will
furnish the Agent with an adequate supply of Notes to be used as global notes,
which will have the Note number, principal amount, Maturity Date, Original
Issue Date, Initial Redemption
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Date and redemption prices and the information called for by clause (a) of
Section 6 hereof left blank. The Agent shall furnish the Issuer with a receipt
for the blank Notes so delivered. Each Note will be signed manually or by
facsimile by an officer or officers of the Issuer duly authorized to sign the
Notes and will be substantially in the form of Exhibit A or B attached hereto
(as applicable). Notes shall have a maturity of between nine (9) months and
fifteen (15) years from date of issue, and shall be issued in minimum
denominations of $1,000,000 and larger denominations in integral multiples of
$1,000. The Agent shall take reasonable steps to assure the safekeeping of the
blank Notes. In addition, the Issuer will, from time to time, provide the
Agent with an adequate supply of CUSIP numbers which will be assigned by the
Issuer and the Agent to each global Note issued.
Section 5. Administrative Procedures. The Agent hereby
acknowledges receipt of a copy of the Administrative Procedures attached as
Exhibit A to the Distribution Agreement (the "Administrative Procedures") and
each of the Agent and the Issuer hereby agrees to abide by and perform the
obligations specified for them in such Administrative Procedures as if they
were set forth herein and made a part hereof and agree that, if the terms
hereof shall conflict with the terms of the Administrative Procedures, the
terms of the Administrative Procedures shall govern.
Section 6. Completion, Authentication and Delivery of Notes.
(a) The Agent shall receive instructions from an
authorized representative listed on Exhibit C hereto of the Issuer
offering Notes (which Exhibit may be amended from time to time by
written notice from the Issuer) (each an "Authorized Representative")
by written instructions via the telecopier regarding the completion
and delivery of some or all of the Notes. Such instructions shall
include the following information (the "Purchase Information") with
respect to each Note and shall be provided no later than 11:00 a.m.
on the trade date:
(i) the name of the person in whose name a Note is to be
registered (the "Registered Owner") which shall, until
the amendment of this Agreement, be Cede & Co., as
nominee of DTC;
(ii) the taxpayer identification number of the Registered
Owner;
(iii) the principal amount;
(iv) the Interest Payment Dates;
(v) the Regular Record Dates;
(vi) the Annual Redemption Percentage Reduction;
(vii) the Holder's Optional Repayment Date(s);
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(viii) the Maturity Date;
(ix) the Original Issue Date and trade date;
(x) if applicable, the Initial Redemption Date;
(xi) the Annual Redemption Percentage Reduction;
(xii) the Initial Redemption Percentage;
(xiii) the Default Rate;
(xiv) each Selling Agent's commission or, if the Notes are
being purchased directly by a Selling Agent, original
issue discount;
(xv) the amount of the proceeds to be paid to the Issuer or
its designee;
(xvi) the Total Amount of OID, Yield to Maturity, Short
Accrual Period OID, and Method Used to Determine
Yield for Short Accrual Period;
(xvii) delivery instructions;
(xviii) the Selling Agent;
(xix) the CUSIP number to be assigned to each Note;
(xx) If the Note is a Fixed Rate Note, the Interest Rate;
(xxi) If the Note is a Floating Rate Note, the following
information:
(A) the Interest Rate Basis;
(B) the Initial Interest Rate;
(C) the Spread and/or Spread Multiplier;
(D) the Index Maturity;
(E) the Interest Rate Reset Period;
(F) the Interest Rate Reset Dates;
(G) the Interest Payment Period;
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(H) if applicable, the Maximum Interest Rate; and
(I) if applicable, the Minimum Interest Rate;
(J) the Alternate Rate Event Spread;
(K) the Alternate Rate Spread; and
(L) the Calculation Dates.
(b) Upon the receipt of such instructions and the
information set forth in subsection (a) above, the Agent will confirm
by telephone to an Authorized Representative of the Issuer offering
the Note (other than the Authorized Representative who sent the
instructions by telecopier) the principal amount of the Notes to be so
issued on the date specified in such notice and:
(i) complete each Note as to the information called for by
this Section 6;
(ii) record each Note in the note register maintained by the
Agent pursuant to Section 14 hereof (the "Note
Register");
(iii) cause each Note to be manually authenticated by any one
of the authorized signors of the Agent duly authorized
for such purpose; and
(iv) prior to 4:00 p.m. on the trade date, the Agent shall
enter a Pending Deposit Message through DTC's
Participant Terminal System in accordance with the
Agent's agreement with DTC set forth in the Letter of
Representations of even date herewith from the Issuer
and the Agent to DTC (the "Letter of Representations").
(c) If any Note has been countersigned by one of the
Agent's authorized signors who was duly authorized for such purposes
at the time of execution but who is not so authorized at the time said
Note is to be paid, the Agent is authorized to and will pay the Note
notwithstanding that the authority of said authorized signors has been
terminated.
Section 7. Delivery of Global Notes.
(a) By 10:00 a.m. on the Original Issue Date, DTC
will credit any Notes to be issued to the Agent's participant account
at DTC. The Agent will, by 2:00 p.m. on the Original Issue Date,
enter a Same Day Funds Settlement ("SDFS") deliver order instructing
DTC to debit the Agent's account and credit the Note to the Selling
Agent, if a Selling Agent sold the Note and, if applicable, debit the
Selling Agent's
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settlement account for the amount of the principal of the Note less
the Selling Agent's commission. The transfer of funds from the
Selling Agent to the Agent (if applicable) will be done by 4:45 p.m.
on the Original Issue Date in accordance with the SDFS procedures in
effect on such date.
(b) With respect to a Note (or portion thereof), if
the Agent does not issue the SDFS deliver order described in the
preceding sentence, or if for any reason the purchaser of such Note
fails to pay the purchase price and the Selling Agent returns such
Note to the Agent, the Agent may deliver a withdrawal message
instructing DTC to debit such Note (or portion thereof) from the
Agent's account. Following the processing of any withdrawal message
by DTC, the Agent will adjust its records to reflect the cancellation
of such Note (or portion thereof).
Section 8. Proceeds of Sale of Notes. Proceeds received by a
Selling Agent in payment for Notes shall be paid by such Selling Agent to the
Issuer. The Agent shall have no liability whatsoever to any party if a Selling
Agent fails to pay the Issuer of the Notes for such Notes in whole or in part,
for any reason, unless such failure is caused by the failure of the Agent to
comply with the Issuer's instructions as set forth in Section 6 and Section 7
above.
Section 9. Payment of Interest. Interest payments on each Note
will be made on the Interest Payment Dates provided for in such Note, and in
each case, at maturity (together with principal). Notwithstanding the
foregoing, if the Original Issue Date occurs either on an Interest Payment Date
or between a Record Date and the next succeeding Interest Payment Date, the
first payment of interest on any such Note will be made on the Interest Payment
Date following the next succeeding Record Date. Interest with respect to Fixed
Rate Bank Notes will begin to accrue on the Original Issue Date and will be
calculated on the basis of a 360-day year of twelve 30-day months. Interest
with respect to Floating Rate Bank Notes will begin to accrue on the Original
Issue Date and will be calculated by the Agent in accordance with the
provisions set forth in the form of each such Note, for the applicable Interest
Rate Basis specified on the face of each thereof, and this Agreement. Subject
to the receipt of funds as provided in Section 13 hereof, all interest payments
on any Note will made by wire transfer to such account as has been
appropriately designated to the Agent by the holder entitled to such payments.
Section 10. Payment of Principal. Subject to receipt of funds as
provided in Section 13 hereof, the Agent shall pay the principal amount
together with accrued interest on any Note upon maturity, repayment or
redemption ("Final Payout"). Upon maturity of any Note, the Agent shall make a
Final Payout upon presentation and surrender to the Agent of the appropriate
Note by the registered holder. If the registered holder elects to have any
Note repaid, the Agent shall make a Final Payout upon presentation and
surrender to the Agent of the appropriate Note by the registered holder, along
with a completed Option to Elect Repayment. Finally, if an Issuer elects to
redeem any Note, the Agent shall make a Final Payout to the registered holder
if the Issuer provides written notice of
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redemption to the Agent. Principal and interest due on a Note at Maturity or
upon repayment or redemption will be paid in immediately available funds
against presentation and surrender of the Note by the registered holder at the
office of the Agent at Comerica Bank, 411 West Lafayette, 4th Floor, Detroit,
Michigan 48226, Attn: Corporate Trust Department. The Agent will mark the
Note "CANCELED" and remit it directly to the Issuer.
Section 11. Information Regarding Amounts Due. Promptly following
each Record Date, the Agent will furnish the Issuer a list of interest payments
to be made on the following Interest Payment Date for each Note and in total.
The Agent will provide to the Issuer by the fifteenth day of each month a list
of the principal and interest to be paid on Notes maturing in the next
succeeding month.
Section 12. Calculation of Interest: Reference Banks and Dealers:
Other Information Regarding the Notes.
(a) The Agent shall, in its capacity as calculation
agent (the "Calculation Agent"), calculate, on or prior to each
Calculation Date, the Interest Rate applicable to each Floating Rate
Note, and promptly cause to be forwarded to the Issuer the following
information (as appropriate) regarding the Interest Rate so calculated
for such Floating Rate Note:
(i) Interest Rate Basis;
(ii) Spread and/or Spread Multiplier;
(iii) the existing Interest Rate;
(iv) Index Maturity;
(v) the Interest Reset Date on which the new Interest Rate
will take effect;
(vi) the Interest Determination Date; and
(vii) if applicable, the reference banks, commercial paper
dealers or government securities dealers used in the
calculations.
All determinations of Interest Rates by the Calculation Agent shall,
in the absence of manifest error, be conclusive for all purposes and
binding on holders of the Notes.
(b) At the request of the holder of any Floating Rate
Note, the Calculation Agent shall provide to such holder, if
determined, the Interest Rate then in effect for such Note, and, if
determined, the Interest Rate which will become effective as of the
next Interest Reset Date.
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(c) The Issuer from time to time shall appoint
reference banks, commercial paper dealers or government securities
dealers as required by Floating Rate Notes and the Issuer shall notify
the Calculation Agent as to the reference banks, commercial paper
dealers or government securities dealers so appointed. The
Calculation Agent shall not be responsible to the Issuer or any third
party for any failure of any reference bank, commercial paper dealer
or government securities or as a result of the Calculation Agent
having acted (except in the event of gross negligence, wilful
misconduct or bad faith) on any quotation or other information given
by any reference bank, commercial paper dealer or government
securities dealer.
(d) The Agent shall provide to the Issuer reports,
semiannually, with respect to Note issuances and outstandings. The
Agent shall use reasonable efforts to provide its customary reports
upon request by the Issuer and to the extent that such reports are
available.
Section 13. Deposit of Funds. The Issuer shall, by 9:30 a.m. on
each Interest Payment Date, pay to the Agent an amount in immediately available
funds sufficient to pay all interest due on the Notes on such Interest Payment
Date and shall, by 9:30 a.m. on each Maturity Date, or date fixed for
redemption or repayment, of any Note, pay to the Agent an amount in immediately
available funds sufficient to pay the principal of any Note maturing or being
redeemed or repaid on such date and interest accrued thereon to such Maturity
Date or date of redemption or repayment.
Section 14. Registration: Transfer.
(a) The Agent shall maintain a note register (the
"Note Register"), in which it shall register the names, addresses and
taxpayer identification numbers of the holders of the Notes and shall
register the transfer of Notes. The Agent, upon request, shall permit
the Issuer to inspect the Note Register during the Agent's normal
business hours.
(b) Transfers of book-entry Note(s) will be
accomplished by book entries made by DTC and, in turn, by participants
acting on behalf of beneficial transferrers and transferees of such
Note(s).
(c) Exchanges of global Notes will be made by the
Agent, from time to time, to consolidate any outstanding global Notes
with terms which are identical except for the Original Issue Date and
the initial CUSIP number assigned to such Notes. Any such exchanges
will be made upon at least 30 days notice to DTC and the CUSIP Service
Bureau. On the specified exchange date, the Agent will exchange the
similar global Notes for a new global Note and adjust its records to
reflect such exchanges.
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(d) In connection with any registration or transfer
of Notes, the Issuer and the Agent may require payment of a sum
sufficient to cover any applicable tax or other governmental charge.
Section 15. Persons Deemed Owners. Prior to due presentment of a
Note for registration or transfer, the Issuer, the Agent and any agent of the
Issuer or the Agent may treat the person in whose name such Note is registered
as the absolute owner of such Note for the purpose of receiving payments of
principal and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer nor the
Agent shall be affected by notice to the contrary.
Section 16. Mutilated, Lost, Stolen or Destroyed Notes. ln case any
Note shall become mutilated or destroyed, lost or stolen, the Issuer in its
discretion may execute and upon its request the Agent shall authenticate and
deliver a new Note of like tenor and principal amount having a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note or in lieu of and substitution for the Note destroyed, lost or stolen. In
every case the applicant for a substituted Note shall furnish to the Issuer and
to the Agent such security or indemnity as may be required by them to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and to the Agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof. The Agent may authenticate any such substituted Note and
deliver the same upon the written request or authorization of an officer of the
Issuer. Upon the issuance of any substituted Note, the Issuer may require the
holder thereof to pay a sum sufficient to cover any expense connected
therewith. In case any Note which has matured or has been redeemed or is
within thirty days of maturity or redemption shall become mutilated or be
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Note, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Note) if the applicant for such payment shall
furnish the Issuer and the Agent with such security or indemnity as may be
required by them to save each of them harmless, and, in the case of
destruction, loss or theft, evidence to the satisfaction of the Issuer of the
destruction, loss or theft of such Note and of the ownership thereof. All
applications under this Section shall be processed by the Agent.
Section 17. Return of Unclaimed Funds. Any money deposited with the
Agent and remaining unclaimed for two years after the date upon which the last
payment of principal or interest on any Note to which such deposit relates
shall have become due and payable, upon the request of the Issuer, shall be
repaid to the Issuer by the Agent, and the holder of any Note entitled to
receive payment thereof shall thereafter look only to the Issuer for the
payment thereof and all liability of the Agent with respect to such money shall
thereupon cease. The substance of the provisions of this Section 17 shall be
set forth in the text of each Note, as applicable.
Section 18. Cancellation of Unissued Discharge. Upon the written
request of the Issuer, the Agent shall cancel and return to the Issuer all
unissued Notes in its
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possession at the time of such request.
Section 19. Reliance on Instructions. The Agent shall not incur any
liability to the Issuer in acting hereunder on instructions from an Authorized
Representative of the Issuer contemplated hereby which the Agent believed in
good faith to have been properly given.
Section 20. Information Furnished by the Agent. Upon the reasonable
request of the Issuer, given in writing at any time and from time to time, the
Agent shall promptly provide the Issuer with information with respect to Notes
issued hereunder to the extent such information is reasonably available.
Section 21. Compensation. Expenses and Indemnification. The Agent
shall be entitled to reasonable compensation for its services pursuant to its
current fee schedule, and to reimbursement for any expenses reasonably
incurred. The Issuer shall be entitled to notice of any change in Agent's fee
schedule.
Section 22. Miscellaneous.
22.1 Term of Agreement.
(a) This Agreement will automatically terminate upon
the final maturity of the Notes issued hereunder, and may be
terminated by either party upon giving thirty (30) days written notice
to the other parties.
(b) Notwithstanding any provision to the contrary,
upon termination of this Agreement, all obligations of the Agent
hereunder shall cease and any funds held by the Agent for payment
hereunder shall be returned to the Issuer.
22.2 Communications. All communications delivered under this
Agreement shall be in writing (including telex, telecopy or similar writing),
unless otherwise provided, and shall be delivered to such party as set forth
below:
If addressed to the Issuer:
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Robert C. Shrosbree
Telephone Number: (313) 222-9350
Telecopier Number: (313) 222-9480
If addressed to the Agent:
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Comerica Bank
411 W. Lafayette
4th Floor
Detroit, MI 48226
Attention: Corporate Trust Department
Telephone Number: (313) 222-4380
Telecopier Number: (313) 222-2985
or such other address, telecopier or telephone number as such party may
hereafter specify for such purposes. Each notice will be effective when
received at the address above.
22.3 Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof, and there
are no other representations, endorsements, promises, agreements or
understandings, oral, written or implied, between the parties relating to the
subject matter hereof, except for agreements relating to compensation of the
Agent.
22.4 Benefits. Nothing herein, express or implied, shall
give any person, other than the Issuer, the Agent, and their respective
successors and assigns, any benefit of any legal or equitable right, remedy or
claim hereunder.
22.5 Amendment: Waiver. This Agreement may be amended at any
time by the mutual consent of the parties.
22.6 Successors and Assigns. Subject to Section 22.1 hereof,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the respective successors and assigns of each of the Issuer and
the Agent.
22.7 Severability. If any clause, provision or section
hereof shall be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such clause, provision or
section shall not affect any of the remaining clauses, provisions or sections
hereof.
22.8 Execution in Counterparts. This Agreement may be
executed in counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
22.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
22.10 Signature by Telecopier. Counterpart copies of this
Agreement may be signed by all parties and exchanged by telecopier.
Counterpart copies so signed and exchanged shall be fully binding. Counterpart
originals of this Agreement may concurrently
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be manually signed by all parties and shall be exchanged by U.S. Mail or
express service at the earliest possible date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the date first above written.
ISSUER
Attest: COMERICA BANK
/s/ ROBERT C. SHROSBREE /s/ PAUL H. MARTZOWKA
_________________________________ By:_______________________________
EXECUTIVE VICE PRESIDENT
AND CHEIF FINANCIAL OFFICER
Its:______________________________
AGENT
Attest: COMERICA BANK
/s/ ROBERT C. SHROSBREE /s/ M. KARAN
________________________________ By:_____________________________
VICE PRESIDENT
Its:____________________________
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EXHIBIT C
1) Ronald Marks
2) Mike Cameron
3) Paul Martzowka
4) Mike Michalak
5) Any of the officers or employees designated by the above referenced
officers.
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