Exhibit 4.36
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SIXTH SUPPLEMENTAL INDENTURE
between
BANK ONE CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of August 30, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
SECTION 1.1 Definition of Terms...................................................... 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES........................... 4
SECTION 2.1. Designation and Principal Amount......................................... 4
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, Investment Company Event or Capital Treatment Event
Redemption.............................................................. 9
SECTION 3.2. Optional Redemption by Company........................................... 9
SECTION 3.3. No Sinking Fund.......................................................... 9
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period..................................... 10
SECTION 4.2. Notice of Extension...................................................... 10
ARTICLE V EXPENSES
SECTION 5.1. Payment of Expenses...................................................... 11
SECTION 5.2. Payment Upon Resignation or Removal...................................... 12
ARTICLE VI FORM OF DEBENTURE
SECTION 6.1. Form of Debenture........................................................ 12
ARTICLE VII ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures............................................. 20
ARTICLE VIII MISCELLANEOUS
SECTION 8.1. Ratification of Indenture................................................ 20
SECTION 8.2. Trustee Not Responsible for Recitals..................................... 20
SECTION 8.3. Governing Law............................................................ 20
SECTION 8.4. Separability............................................................. 20
SECTION 8.5. Counterparts............................................................. 21
SIXTH SUPPLEMENTAL INDENTURE, dated as of August 30, 2000 (the "Sixth
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Supplemental Indenture"), between BANK ONE CORPORATION, a Delaware corporation
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(the "Company"), and The Chase Manhattan Bank, as trustee (the "Trustee"), under
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the Indenture dated as of January 1, 1997 between the Company and the Trustee
(the "Indenture").
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WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its Floating Rate Junior Subordinated Deferrable Interest Debentures due
September 1, 2030 (the "Debentures"), the form and substance of such Debentures
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and the terms, provisions and conditions thereof to be set forth as provided in
the Indenture and this Sixth Supplemental Indenture;
WHEREAS, BANK ONE Capital IV, a Delaware statutory business trust (the
"Trust"), has offered to the public $160,000,000 aggregate liquidation amount of
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its Floating Rate Preferred Securities (the "Preferred Securities"),
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representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $4,949,000 aggregate
liquidation amount of its Floating Rate Common Securities, in $164,949,000
aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Sixth Supplemental Indenture pursuant to Sections 3.01 and 9.01 of
the Indenture and all requirements necessary to make this Sixth 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 Sixth Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this Sixth Supplemental Indenture;
(b) a term defined anywhere in this Sixth 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 Sixth 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) Distribution Rate; (vi) Institutional
Trustee; (vii) Institutional Trustee Account; (viii) Investment Company Event;
(ix) Preferred Security Certificate; (x) Regular Trustees; (xi) Special Event;
(xii) Tax Event; and (xiii) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
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"Bank One Capital Trust" means each of (i) any FCN Capital Trust and
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(ii) BANK ONE Capital I, BANK ONE Capital II, BANK ONE Capital III, BANK ONE
Capital IV and BANK ONE Capital V, each a Delaware business trust, or any
similar trust created for the purpose of issuing preferred securities in
connection with the issuance of Securities under the Indenture.
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"Bank One Guarantee" means any Common Securities Guarantee or
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Preferred Securities Guarantee.
"Calculation Agent" means Bank One Trust Company, National Association
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or any successor to it in this capacity.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
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"Declaration" means the Amended and Restated Declaration of Trust of
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BANK ONE Capital IV, a Delaware statutory business trust, dated as of August 30,
2000.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
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"Depositary", with respect to the Debentures, means The Depository
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Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust by the Regular
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Trustees in accordance with the Declaration, and the distribution of the
Debentures held by the Institutional Trustee to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Global Debenture" shall have the meaning set forth in Section 2.4.
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"London Banking Day" means any day, other than Saturday or Sunday, on
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which dealings in deposits in U.S. dollars are transacted in the London
interbank market.
"Maturity Date" shall mean September 1, 2030.
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"Non Book-Entry Preferred Securities" shall have the meaning set forth
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in Section 2.4.
"Redemption Date" shall mean the date fixed for redemption of the
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Debentures pursuant to Article III hereof.
"Redemption Price" shall mean, with respect to any redemption of the
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Debentures pursuant to Article III hereof, an amount in cash equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
"Reference Banks" means not less than two major banks in the London
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interbank market selected by the Calculation Agent or any successors selected by
the Calculation Agent.
"Reserve Distribution Rate" means the rate per annum which the
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Calculation Agent determines to be either (a) the arithmetic mean of the U.S.
dollar offered rates which at
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least two New York City banks selected by the Calculation Agent are or were
quoting on the relevant determination date for three-month U.S. dollar deposits
to the Reference Banks or those of them (at least two in number) to which such
quotations are or were being so made; or (b) in the event the Calculation Agent
can determine no such arithmetic mean, the arithmetic mean of the U.S. dollar
offered rates for three-month U.S. dollar deposits which at least two New York
City banks selected by the Calculation Agent are or were quoting on the
determination date to leading European banks for a period of three months.
"Reuters Screen LIBO page" means the display designated as "LIBO" on
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the Reuters Monitor Money Market Rates Service, or any other page which replaces
the LIBO page on that service for the purpose of displaying London interbank
offered rates of major banks.
"Telerate 3750" means the display currently so designated on the
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Bridge Telerate, Inc. Service (or any successor service) for the purpose of
displaying the London interbank rates of major banks for U.S. dollars, or any
other page as may replace such page on the service for the purpose of displaying
comparable rates or prices.
"Trust Securities" shall mean the Preferred Securities and the Common
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Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
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There is hereby authorized a series of Securities designated the
"Floating Rate Junior Subordinated Deferrable Interest Debentures due September
1, 2030", limited in aggregate principal amount to $164,949,000, which amount
shall be as set forth in any written order of the Company for the authentication
and delivery of Debentures pursuant to Section 3.03 of the Indenture.
SECTION 2.2. Maturity.
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The Maturity Date (which shall constitute the Stated Maturity of the
Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
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SECTION 2.3. Form and Payment.
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Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons in minimum
denominations of $1,000 and in integral multiples thereof. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Company as set forth in the last sentence of Section 5.02 of
the Indenture; provided, however, that payment of interest may be made, at the
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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 Bank One
Trust Company, N.A. as Securities Registrar for the Debentures. Notwithstanding
the foregoing, so long as the Holder of any Debentures is the Institutional
Trustee, the payment of the principal of and interest (including Compounded
Interest and Additional Sums, if any) on such Debentures held by the
Institutional Trustee will be made at such place and to such account as may be
designated by the Institutional Trustee.
SECTION 2.4. Global Debenture.
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(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures (a "Global Debenture"),
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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
Sixth 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
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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
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transfer or reissuance at which time such Preferred Security
Certificates will be cancelled and a Debenture, registered in the name
of the holder of the Preferred Security Certificate or the transferee
of the holder of such Preferred Security Certificate, as the case may
be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate cancelled,
will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this
Sixth 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.
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(a) Each Debenture will bear interest at a variable annual rate,
reset quarterly, of Three-Month LIBOR plus 1.50% (the "Interest Rate") from
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August 30, 2000 until the principal thereof becomes due and payable, and on any
overdue principal at the Interest Rate and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the Interest Rate, compounded quarterly, payable (subject to the
provisions of Article Four) quarterly in arrears on March 1, June 1, September 1
and December 1 of each year commencing on December 1, 2000 (each such day, an
"Interest Payment Date"), to the Person in whose name such Debenture or any
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predecessor Debenture is registered, at the close of business on the regular
record date for such interest installment, which, in respect of any Debentures
of which the Institutional Trustee is the Holder or in the case of a Global
Debenture, shall be the close of business on the Business Day next preceding
that Interest Payment Date (as defined below). Notwithstanding the foregoing
sentence, if the Debentures are no longer in book-entry only form, except if the
Debentures are held by the Institutional Trustee, the regular record dates shall
be the February 15, May 15, August 15 and November 15 prior to the applicable
Interest Payment Date.
(b) The Calculation Agent will determine Three-Month LIBOR for any
Interest Period on the determination date using the following procedures:
(1) The Calculation Agent will determine Three-Month LIBOR on
the basis of the rate per annum appearing on Telerate 3750, as of 11:00
a.m., London time, for three-month U.S. dollar deposits in the London
interbank market on that date.
(2) If on any determination date, the rate does not appear on
Telerate 3750, Three-Month LIBOR will be the arithmetic mean, expressed as
a percentage, of the offered rates (unless such display, by its terms
provides
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for only a single rate, in which case the single rate will be used), as of
11:00 a.m., London time, for three-month U.S. dollar deposits in the London
interbank market on that date appearing on the Reuters Screen LIBO Page.
(3) If on any determination date, at least two such rates do not
appear on the Reuters Screen LIBO Page (unless only a single rate is
required, in which case, if no rate appears on Reuters Screen LIBO Page),
Three-Month LIBOR will be the arithmetic mean of the rates at which three-
month U.S. dollar deposit are offered by the principal London offices of at
least two of the Reference Banks at approximately 11:00 a.m., London time,
on that day to prime banks in the London interbank market.
(4) If on any determination date fewer than two offered rates
are available, Three-Month LIBOR will be the greater of:
(i) Three-Month LIBOR in effect for the last preceding
above applied; and Interest Period to which (1), (2) or (3)
(ii) the "Reserve Distribution Rate"; provided,
however, that if the Reserve Distribution Rate cannot be
calculated by the Calculation Agent, then the Three-Month LIBOR
calculation specified in (i) will apply.
(c) The Calculation Agent will, as soon as practicable after 11:00
a.m., London Time, on each determination date calculate the Interest Rate for
the Debentures for the following Interest Period. The Company shall, or shall
cause the Calculation Agent to, notify the Trustee of each Interest Rate
promptly after the calculation thereof. For the first Interest Period beginning
on August 30, 2000, Three-Month LIBOR is 6.68% and the Interest Rate for the
Debentures is 8.18%. The Interest Rate for any Interest Period will be
effective as of the first day of the Interest Period.
(d) The term "Interest Period" means each period beginning on, and
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including, August 30, 2000, and ending on, but excluding, the first Interest
Payment Date, and each successive period beginning on, and including, an
Interest Payment Date and ending on, but excluding, the next succeeding Interest
Payment Date. After the initial Interest Period, the Interest Rate on the
Debentures for each Interest Period will be determined on the determination
date, which is the day two London Banking Days preceding the first day of an
Interest Period. The amount of interest payable for any Interest Period will be
calculated by applying the Interest Rate, as calculated above, to the principal
amount of each Debenture then outstanding at the beginning of the Interest
Period, multiplying this amount by the actual number of days in the Interest
Period divided by 360 and rounding the resulting figure to the nearest cent
(one-half cent being rounded upward).
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All percentages resulting from any calculation on the Debentures will
be rounded to the nearest one hundred-thousandth of a percentage point, with
five one millionths of a percentage point rounded upwards (e.g. 9.876545% (or
.9876545) would be rounded to 9.87655% (or .0987655), and all dollar amounts
used in or resulting from such calculation on the Debentures will be rounded to
the nearest cent (with one-half cent being rounded upward).
The determination of the Interest Rate for the Debentures by the
Calculation Agent will in the absence of wilful default, bad faith or manifest
error, be final and binding on all parties. The Interest Rate on the
Debentures, however, will in no event be higher than the maximum rate permitted
under New York Law.
(e) In the event that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day except that, if such Business Day is in
the next succeeding calendar month, then such payment will be made on the
immediately preceding Business Day (the date on which such interest payment is
actually paid, an "Interest Payment Date"). If the Maturity Date of the
Debentures falls on a day that is not a Business Day, the final payment may be
made on the next succeeding Business Day and no interest on such payment will
accrue for the period from and after the Maturity Date.
(f) As long as the Debentures remain outstanding, there will be at all
times a Calculation Agent for the Debentures. In the event that the Calculation
Agent is unable or unwilling to continue to act as calculation agent or in the
event the Calculation Agent fails to establish the Interest Rate for any
Interest Period, the Company will appoint another calculation agent. The
Calculation Agent may not resign its duties without a successor having been
appointed.
All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purpose of the provisions relating to the payment and calculation of the
Interest Rate on the Debentures, whether by any Reference Bank or the
Calculation Agent, will in the absence of wilful default, bad faith or manifest
error, be final and binding on the Company, the Calculation Agent, the Trustee
and the Holders of the Debentures. No liability will attach in the absence of
wilful default, bad faith or manifest error to the Calculation Agent in
connection with the exercise or non-exercise by it of its powers, duties and
discretions.
(g) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
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by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will not be less
than the amounts the Trust and the Institutional Trustee would have received had
the Trust and the Institutional Trustee
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not been subject to such taxes, duties, assessments or other governmental
charges as a result of such Tax Event. The payment of such Additional Sums will
be subject to the provisions of Section 5.04 of the Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event, Investment Company Event or Capital Treatment Event
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Redemption.
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If a Tax Event, an Investment Company Event or a Capital Treatment
Event has occurred and is continuing then, notwithstanding Section 3.2(a) but
subject to Section 3.2(c), the Company shall have the right upon not less than
30 days nor more than 60 days notice to the Holders of the Debentures to redeem
the Debentures, in whole, but not in part, for cash within 90 days following the
occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event (or, if the approval of the Federal Reserve is then required for such
redemption, on such later date as promptly practicable after such approval is
obtained), (the "90 Day Period") at the Redemption Price.
SECTION 3.2. Optional Redemption by Company.
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(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article Four of the Indenture, except as otherwise may be specified in this
Sixth Supplemental Indenture, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after September 1,
2005, at the Redemption Price. Any redemption pursuant to this paragraph will
be made upon not less than 30 days nor more than 60 days notice to the Holders
of the Debentures. If the Debentures are only partially redeemed pursuant to
this Section 3.2, the Debentures will be redeemed pro rata or by lot or by any
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other method utilized by the Securities Registrar; provided, that if at the time
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of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the principal
amount of such Debentures beneficially held by each Holder of Debentures to be
redeemed.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or Section
3.2 shall be subject to the Company obtaining the prior approval of the Federal
Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
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SECTION 3.3. No Sinking Fund.
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The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
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Subject to Section 3.13 of the Indenture, the Company shall have the
right, at any time and from time to time during the term of the Debentures, to
defer payments of interest by extending the interest payment period of such
Debentures for a period not exceeding 20 consecutive quarters (an "Extension
Period"), 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
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Payment Date or extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Interest Rate compounded quarterly for each quarter of
the Extension Period ("Compounded Interest"). At the end of the Extension
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Period, the Company shall pay all interest accrued and unpaid on the Debentures,
including any Additional Sums and Compounded Interest (together, "Deferred
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Interest") that shall be payable to the Holders of the Debentures in whose names
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the Debentures are registered in the Security Register on the record date
relating to the Interest Payment Date on which the Extension Period ends. Before
the termination of any Extension Period, the Company may further defer payments
of interest by further extending such period, provided that such period,
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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 Company may commence a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof.
SECTION 4.2. Notice of Extension.
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(a) If the Institutional Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Regular Trustees, the Institutional Trustee and
the Trustee of its selection of such Extension Period at least one Business Day
before the earlier of (i) the next succeeding date on which Distributions on the
Trust Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
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(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to Holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
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In connection with the offering, sale and issuance of the Debentures
to the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 8.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
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SECTION 5.2. Payment Upon Resignation or Removal.
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Upon termination of this Sixth Supplemental Indenture or the Indenture
or the removal or resignation of the Trustee, unless otherwise stated, the
Company shall pay to the Trustee all amounts accrued under Section 8.07 of the
Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts accrued under said
Sections to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
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The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
No. CUSIP No.
12
BANK ONE CORPORATION
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE SEPTEMBER 1, 2030
BANK ONE 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 September
1, 2030 (the "Maturity Date") and to pay interest on said principal sum from
August 30, 2000, or from the most recent interest payment date to which interest
has been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 1, June 1, September 1 and December 1 of each year
commencing December 1, 2000 (each such date, an "Interest Payment Date") at a
---------------------
variable annual rate, reset quarterly, of Three-Month LIBOR plus 1.50% (the
"Interest Rate") until the principal hereof shall have become due and payable,
-------------
and on any overdue principal and premium, if any, at the Interest Rate and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Interest Rate compounded quarterly. The amount of interest payable on any
Interest Payment Date (as defined below) shall be calculated as provided in the
Indenture. In the event that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day except that, if such Business day is in
the next succeeding calendar month, then such payment will be made on the
immediately preceding Business day (the date on which such interest payment is
actually paid, an "Interest Payment Date"). If the Maturity Date falls on a day
---------------------
that is not a Business Day, the final payment may be made on the next succeeding
Business Day and no interest on such payment will accrue for the period from and
after the Maturity Date. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the person in whose name this Debenture (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the close
of business on the regular record date for such interest installment, which
shall be the close of business on the first business day next preceding such
Interest Payment Date. If pursuant to the provisions of the Indenture the
Debentures are no longer represented by a Global Debenture, except if the
Debentures are held by the Institutional Trustee, the regular record date shall
be the close of business on the February 15, May 15, August 15 and November 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 the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
-------- -------
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
13
the Holder of this Debenture is the Institutional Trustee, the payment of the
principal of (and premium, if any) and interest on this Debenture will be made
at such place and to such account as may be designated by the Institutional
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and General Obligations, and
this Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and creditor in respect of General
Obligations, whether now outstanding or hereafter incurred, and waives reliance
by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Trustee.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
14
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 this ___ day of _____.
BANK ONE CORPORATION
By:_____________________________
Name:
Title: Chairman of the Board
Attest:
By:______________________
Name:
Title: Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By:______________________
Authorized Officer
Dated _____________
15
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Securities"), all issued or to be
----------
issued in one or more series under and pursuant to an Indenture dated as of
January 1, 1997, duly executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as heretofore supplemented and as
-------
supplemented by the Sixth Supplemental Indenture dated as of August 30, 2000,
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 Sixth Supplemental
Indenture.
Upon the occurrence and continuation of a Tax Event, Investment
Company Event or Capital Treatment Event, the Company shall have the right,
subject to certain conditions set forth in the Indenture, to redeem this
Debenture in whole, but not in part, at the Redemption Price within 90 days
following the occurrence of such Tax Event, Investment Company Event or Capital
Treatment Event (or, if the prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") is then required, on such later
---------------
date as promptly as practicable after such approval is obtained). In addition,
the Company shall have the right to redeem this Debenture, in whole or in part,
at any time on or after September 1, 2005, at the Redemption Price (any of the
foregoing redemptions an "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 Federal Reserve, if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve.
16
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
(acting as one class), to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities; provided, however, that
no such supplemental indenture shall (i) change the Maturity of the principal
of, or the Stated Maturity of any installment of interest (or premium, if any)
on, any Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligations of the Company to pay
additional amounts pursuant to Section 5.04 of the Indenture, or to reduce the
amount of principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof, or change
the method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date); or (ii) reduce the percentage in principal amount of
the Outstanding Securities of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Indenture or to reduce the
requirements of the Indenture for a quorum at meetings of Holders of Securities;
or (iii) change the obligations of the Company to maintain certain offices or
agencies as required by the Indenture; or (iv) modify any of the provisions of
the Indenture relating to supplemental indentures or the waiver of defaults,
except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived, without the consent of
the Holders of each Security then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series affected
thereby, on behalf of all of the Holders of the Securities of such series, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of, premium, if any, or interest on any of the Securities of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and
17
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 Interest
Rate to the extent that payment of such interest is enforceable under applicable
law); provided that no Extension Period may end on a day other than an Interest
-------- ----
Payment Date or last beyond the Maturity Date of the Debentures. Before the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters or extend
beyond the Maturity Date of the Debentures. Upon the termination of any such
Extension Period and the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
During any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu in all respects with or junior in interest
to the Debentures or make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company that by
their terms rank pari passu in all respects with or junior in interest to the
Debentures (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock of any class or series of preferred stock
of the Company under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any Bank One Guarantee which is
for the benefit of the holders of Preferred Securities or Common Securities
issued by the Trust, (d) purchases of Common Stock related to the issuance of
Common Stock under any of the Company's benefit plans for its directors,
officers or employees and (e) obligations under any dividend reinvestment and
stock purchase plan).
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Company will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York or the City of Chicago, Illinois accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
18
the Securities Registrar duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to Section 3.07 of the Indenture) interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures are issuable only in registered form without coupons
in denominations of $1,000 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 $1,000 and
any integral multiple thereof.] As provided in the Indenture and subject to
certain limitations herein and therein set forth, Debentures of this series [so
issued] are exchangeable for a like aggregate principal amount of Debentures of
a different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
19
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $164,949,000 may, upon
execution of this Sixth Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication as provided in Sections 3.01 and
3.03 of the Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Sixth Supplemental Indenture,
is in all respects ratified and confirmed, and this Sixth Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 8.2. Trustee Not Responsible for Recitals.
------------------------------------
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
Sixth Supplemental Indenture.
SECTION 8.3. Governing Law.
-------------
This Sixth Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 8.4. Separability.
------------
In case any one or more of the provisions contained in this Sixth
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 Sixth
Supplemental Indenture or of the Debentures, but this Sixth Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 8.5. Counterparts.
------------
This Sixth 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.
20
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
BANK ONE CORPORATION
By:___________________________________
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and
Treasurer
Attest:
By:_____________________________
Name: ▇▇▇▇▇▇ ▇. Renchof
Title: Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By:___________________________________
Name:
Title:
Attest:
By:______________________________
21
