<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: March 5, 1997
OLD KENT FINANCIAL CORPORATION
(Exact name of registrant as
specified in charter)
MICHIGAN 0-12216 38-1986608
(State of Incorporation) (Commission (IRS Employer
File Number) Identification no.)
111 LYON STREET, N.W.
GRAND RAPIDS, MICHIGAN 49503
(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code: (616) 771-5000
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
This Form 8-K is filed solely for the purpose of filing exhibits
that will be incorporated by reference in the registrant's Form 10-K Annual
Report for its fiscal year ended December 31, 1996, and other future
filings.
(c) Exhibits:
NUMBER EXHIBIT
------ -------
4.3 CERTIFICATE OF DESIGNATION, PREFERENCES, AND RIGHTS OF
SERIES C PREFERRED STOCK.
4.4 FORM OF OLD KENT CAPITAL TRUST I FLOATING RATE
SUBORDINATED CAPITAL INCOME SECURITIES (LIQUIDATION
AMOUNT OF $1,000 PER CAPITAL SECURITY).
4.5 FORM OF OLD KENT FINANCIAL CORPORATION FLOATING RATE
JUNIOR SUBORDINATED DEBENTURE DUE 2027.
4.6 AMENDED AND RESTATED DECLARATION OF TRUST, DATED AS OF
JANUARY 31, 1997, AMONG OLD KENT; ALBERT T. POTAS,
THOMAS E. POWELL, AND MARY E. TUUK, AS "REGULAR
TRUSTEES" (AS DEFINED THEREIN); BANKERS TRUST COMPANY;
AND BANKERS TRUST (DELAWARE).
4.7 GUARANTEE AGREEMENT, DATED AS OF JANUARY 31, 1997,
BETWEEN OLD KENT AND BANKERS TRUST COMPANY.
4.8 INDENTURE, DATED AS OF JANUARY 31, 1997, BETWEEN OLD
KENT AND BANKERS TRUST COMPANY.
4.9 REGISTRATION RIGHTS AGREEMENT, DATED AS OF JANUARY 31,
1997, AMONG OLD KENT CAPITAL TRUST I, OLD KENT
FINANCIAL CORPORATION, AND LEHMAN BROTHERS INC.
10.17 EXECUTIVE SEVERANCE AGREEMENTS FOR MESSRS. WAGNER,
SADLER, SHERWOOD, WISNOM, KABAT, AND WARRINGTON.
10.18 EXECUTIVE SEVERANCE AGREEMENTS FOR MESSRS. DAMS,
FARLEY, GARLICK, JENNINGS, KERSTEIN, CRANDALL, WHALEN,
AND MAGNESEN.
10.19 AMENDMENT TO EXECUTIVE STOCK OPTION PLAN OF 1986.
10.20 AMENDMENT TO STOCK OPTION INCENTIVE PLAN OF 1992.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
OLD KENT FINANCIAL CORPORATION
By: /S/ ALBERT T. POTAS
Albert T. Potas
Senior Vice President
Dated: March 5, 1997
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
- ---------- --------
4.3 Certificate of Designation, Preferences, and Rights of
Series C Preferred Stock.
4.4 Form of Old Kent Capital Trust I Floating Rate Subordinated
Capital Income Securities (Liquidation Amount of $1,000 per
Capital Security).
4.5 Form of Old Kent Financial Corporation Floating Rate Junior
Subordinated Debenture due 2027.
4.6 Amended and Restated Declaration of Trust, dated as of
January 31, 1997, among Old Kent; Albert T. Potas, Thomas E.
Powell, and Mary E. Tuuk, as "Regular Trustees" (as defined
therein); Bankers Trust Company; and Bankers Trust
(Delaware).
4.7 Guarantee Agreement, dated as of January 31, 1997, between
Old Kent and Bankers Trust Company.
4.8 Indenture, dated as of January 31, 1997, between Old Kent
and Bankers Trust Company.
4.9 Registration Rights Agreement, dated as of January 31, 1997,
among Old Kent Capital Trust I, Old Kent Financial
Corporation, and Lehman Brothers Inc.
10.17 Executive Severance Agreements for Messrs. Wagner, Sadler,
Sherwood, Wisnom, Kabat, and Warrington.
10.18 Executive Severance Agreements for Messrs. Dams, Farley,
Garlick, Jennings, Kerstein, Crandall, Whalen, and Magnesen.
10.19 Amendment to Executive Stock Option Plan of 1986.
10.20 Amendment to Stock Option Incentive Plan of 1992.
<PAGE>
EXHIBIT 4.3
MICHIGAN DEPARTMENT OF COMMERCE -- CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
Name
MICHAEL P. LUNT
Address
900 OLD KENT BUILDING, 111 LYON NW
City State Zip Code
GRAND RAPIDS MI 49503
EFFECTIVE DATE:
Document will be returned to the name and address you enter above.
3 3 6 -- 3 3 4
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES C PREFERRED STOCK
OF
OLD KENT FINANCIAL CORPORATION
Pursuant to Section 302 of
Michigan Business Corporation Act
[See attached]
<PAGE>
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES C PREFERRED STOCK
OF
OLD KENT FINANCIAL CORPORATION
Pursuant to Section 302 of
Michigan Business Corporation Act
We, David J. Wagner, Chairman of the Board, President and
Chief Executive Officer, and B.P. Sherwood III, Vice Chairman of the
Board and Treasurer, of Old Kent Financial Corporation, a corporation
organized and existing under the Michigan Business Corporation Act, in
accordance with the provisions of Section 302 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Articles of Incorporation, the Board of
Directors on January 20, 1997, adopted the following resolutions
creating a series of 1,000,000 shares of Preferred Stock designated as
Series C Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporporation in accordance with the provisions
of its Restated Articles of Incorporation, a series of Preferred Stock
of the Corporation be and it hereby is created, and that the
designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the
shares of such series, and the qualifications, limitations, or
restrictions thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series C Preferred Stock" and the number of
shares constituting such series shall be 1,000,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the prior and superior rights of the
holders of any shares of any series of preferred stock
ranking prior and superior to the shares of Series C
Preferred Stock, holders of shares of Series C Preferred
Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the
2
<PAGE>
fifteenth day of March, June, September, and December in
each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of
a share or fraction of a share of Series C Preferred Stock,
in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $34, or (b) subject to the provision
for adjustment hereinafter set forth, one hundred times the
aggregate per share amount of all cash dividends, and one
hundred times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common
Stock, par value $1.00 per share, of the Corporation (the
"Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series C Preferred
Stock. In the event the Corporation shall at any time after
January 20, 1997 (the "Rights Declaration Date"), (i)
declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount to which
holders of shares of Series C Preferred Stock were entitled
immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare a dividend or
distribution on the Series C Preferred Stock as provided in
paragraph (a) above immediately after it declares a dividend
or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $34 per share on the
Series C Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series C Preferred Stock from the
3
<PAGE>
Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series C Preferred Stock, unless the
date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series C Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series C Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series C Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be no more than thirty days prior to the date fixed
for the payment thereof.
Section 3. VOTING RIGHTS. Each share of Series C Preferred
Stock shall entitle the holder thereof to one (1) vote on all matters
submitted to a vote of the shareholders of the Corporation. Except as
otherwise provided by law, the holders of shares of Series C Preferred
Stock and the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of shareholders of the
Corporation. Except as set forth herein, holders of Series C
Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Preferred Stock as
provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series C Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
4
<PAGE>
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Preferred
Stock, except dividends paid ratably on the Series C
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series C Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series C Preferred Stock,
or any shares of stock ranking on a parity with the
Series C Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the corporation unless
the Corporation could, under paragraph (a) of this Section
4, purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series C Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
5
<PAGE>
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of preferred stock and may be
reissued as part of a new series of preferred stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred Stock
unless, prior thereto, the holders of shares of Series C
Preferred Stock shall have received an amount equal to
accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, plus
an amount equal to the greater of (i) $450 per share, or
(ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to one hundred
times the aggregate amount to be distributed per share to
holders of shares of Common Stock (the "Series C Liquidation
Preference"). All such preferential amounts shall be paid
or set aside for payment before the payment or setting aside
for payment of any amount for, or the distribution of any
assets of the Corporation to, the holders of shares of any
class or series of stock ranking junior to Series C
Preferred Stock as to assets of the Corporation.
(b) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series C Liquidation Preference and the liquidation
preferences of all other series of preferred stock that may
be outstanding, if any, then such remaining assets shall be
distributed ratably to the holders of all such shares of
preferred stock (including Series C Preferred Stock) in
proportion to the full preferential amount to which each
such share shall be entitled.
(c) In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the aggregate amount to which holders
of shares of Series C Preferred Stock were entitled
immediately prior to such event under clause (ii) of Section
6(a) above shall be adjusted by multiplying such by a
6
<PAGE>
fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series C Preferred Stock
shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set
forth) equal to one hundred times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series C Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series C Preferred
Stock shall not be redeemable.
Section 9. RANKING. The Series C Preferred Stock shall rank
junior to all other series of the Corporation's preferred stock as to
the payment of dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Articles of Incorporation
of the Corporation shall not be further amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series C Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more of
the outstanding shares of Series C Preferred Stock, voting separately
as a class; PROVIDED, HOWEVER, that at any time that there are no
outstanding shares of Series C Preferred Stock and no outstanding
rights, warrants, or options to acquire shares of Series C Preferred
Stock, the Board of Directors may amend the powers, preferences, and
rights of the Series C Preferred Stock or convert such shares of
Series C Preferred Stock into authorized but unissued shares of
preferred stock which may be reissued as part of a new series of
7
<PAGE>
preferred stock in accordance with the provisions of the Restated
Articles of Incorporation.
Section 11. FRACTIONAL SHARES. Series C Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series C Preferred
Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury as of the 20th day of January, 1997.
/S/ DAVID J. WAGNER
David J. Wagner
Chairman of the Board,
President and Chief
Executive Officer
/S/ B.P. SHERWOOD, III
B.P. Sherwood, III
Vice Chairman of the Board
and Treasurer
8
<PAGE>
EXHIBIT 4.4
THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL
SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE
OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY
AFFILIATE OF THE TRUST WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY
PREDECESSOR) EXCEPT (A) TO THE TRUST, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS
CAPITAL SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE, ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D)
AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND
THE PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO
THEM IN FORM AND SUBSTANCE.
This Capital Security is a Global Certificate within the meaning
of the Declaration hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depository"), or
a nominee of the Depository. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Capital Security (other than a
transfer of this Capital Security as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in limited
circumstances.
<PAGE> 2
Unless this Capital Security Certificate is presented by an
authorized representative of the Depository to Old Kent Capital Trust I or
its agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of Cede & Co.
or such other name as registered by an authorized representative of the
Depository (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depository),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.
CERTIFICATE NO. 1 NUMBER OF CAPITAL SECURITIES: 100,000
CUSIP NO. 679829 AB 7 (R144A) $100,000,000 AGGREGATE LIQUIDATION AMOUNT
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
OLD KENT CAPITAL TRUST I
FLOATING RATE SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OLD KENT CAPITAL TRUST I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co. (the "Holder") is the registered owner of $100,000,000 aggregate
liquidation amount of capital securities of the Trust representing
undivided beneficial ownership interests in the assets of the Trust
designated the Floating Rate Subordinated Capital Income Securities
(liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer
as provided in the Declaration (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of January 31, 1997
(as the same may be amended from time to time (the "Declaration"), Old Kent
Financial Corporation, as Sponsor (the "Company"), Albert T. Potas, Thomas
E. Powell and Mary E. Tuuk, as Regular Trustees, Bankers Trust Company, as
Property Trustee, and Bankers Trust Company (Delaware), as Delaware
Trustee. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. The Sponsor
will provide a copy of the Declaration, the Guarantee and the Indenture to
a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
<PAGE> 3
By acceptance, the Holder agrees to treat, for U.S. federal
income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided indirect beneficial ownership interests
in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:___________________________________
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:___________________________________
Authorized Officer
<PAGE> 4
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
three years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such
Capital Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date"), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the
transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box
(3), (4) or (6) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in its sole discretion,
such written legal opinions, certifications (including an investment letter
in the case of box (3)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer
of registration set forth herein and in Section 315 of the Indenture shall
have been satisfied.
<PAGE> 5
Dated: __________________ Signed:________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:_______________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
Dated: ________ _______________________________________
NOTICE: To be executed by an executive
officer
<PAGE>
THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL
SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE
OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY
AFFILIATE OF THE TRUST WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY
PREDECESSOR) EXCEPT (A) TO THE TRUST, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS
CAPITAL SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE, ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D)
AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND
THE PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO
THEM IN FORM AND SUBSTANCE.
This Capital Security is a Global Certificate within the meaning
of the Declaration hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depository"), or
a nominee of the Depository. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Capital Security (other than a
transfer of this Capital Security as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in limited
circumstances.
<PAGE> 2
Unless this Capital Security Certificate is presented by an
authorized representative of the Depository to Old Kent Capital Trust I or
its agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of Cede & Co.
or such other name as registered by an authorized representative of the
Depository (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depository),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.
CERTIFICATE NO. 1 NUMBER OF CAPITAL SECURITIES: 0
CUSIP NO. U67879 AA 1 $0 AGGREGATE LIQUIDATION AMOUNT
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
OLD KENT CAPITAL TRUST I
FLOATING RATE SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OLD KENT CAPITAL TRUST I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co. (the "Holder") is the registered owner of $0 aggregate liquidation
amount of capital securities of the Trust representing undivided beneficial
ownership interests in the assets of the Trust designated the Floating Rate
Subordinated Capital Income Securities (liquidation amount $1,000 per
Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in the Declaration (as defined
below). The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities represented hereby are
issued and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust, dated as of January
31, 1997 (as the same may be amended from time to time (the "Declaration"),
among Old Kent Financial Corporation, as Sponsor (the "Company"), Albert T.
Potas, Thomas E. Powell and Mary E. Tuuk, as Regular Trustees, Bankers
Trust Company, as Property Trustee, and Bankers Trust (Delaware), as
Delaware Trustee. Capitalized terms used herein but not defined shall have
the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. The Sponsor
will provide a copy of the Declaration, the Guarantee and the Indenture to
a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
<PAGE> 3
By acceptance, the Holder agrees to treat, for U.S. federal
income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided indirect beneficial ownership interests
in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:___________________________________
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:___________________________________
Authorized Officer
<PAGE> 4
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
three years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such
Capital Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date"), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the
transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box
(3), (4) or (6) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in its sole discretion,
such written legal opinions, certifications (including an investment letter
in the case of box (3)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer
of registration set forth herein and in Section 315 of the Indenture shall
have been satisfied.
<PAGE> 5
Dated: __________________ Signed:________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:____________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
Dated: ________ _______________________________________
NOTICE: To be executed by an executive
officer
<PAGE>
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. C-1 NUMBER OF COMMON SECURITIES: 3,092.784
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OLD KENT CAPITAL TRUST I
COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Old Kent Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Old
Kent Financial Corporation (the "Holder") is the registered owner of three
thousand ninety two and 784 thousandths (3,092.784) common securities of
the Trust representing an undivided beneficial ownership interest in the
assets of the Trust designated the Floating Rate Common Securities
(liquidation amount $1,000 per Common Security) (the "Common Securities").
The Common Securities are not transferable and any attempted transfer
thereof shall be void. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust,
dated as of January 31, 1997 (as the same may be amended from time to time,
the "Declaration"), among Old Kent Financial Corporation, as Sponsor,
Albert T. Potas, Thomas E. Powell and Mary E. Tuuk, as Regular Trustees,
Bankers Trust Company, as Property Trustee and Bankers Trust Company
(Delaware), as Delaware Trustee. The Holder is entitled to the benefits of
the Guarantee to the extent described therein. Capitalized terms used
herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration, the
Guarantee and the Indenture to a Holder without charge upon written request
to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership
interest in the Debentures.
<PAGE> 2
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:___________________________________
Name:
Title: Regular Trustee
<PAGE>
EXHIBIT 4.5
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE COMPANY THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER
THIS SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS
AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH
RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE, ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES
(II)(D) AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY
AND THE PROPERTY TRUSTEE FOR SUCH SECURITIES TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION
ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
<PAGE> 2
OLD KENT FINANCIAL CORPORATION
Floating Rate Junior Subordinated Debenture due 2027
$103,092,784
No. D-1
CUSIP No. 679833 AD 5
(R144A)
OLD KENT FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to Bankers Trust Company, as Trustee, or registered assigns, the
principal sum of One Hundred Three Million Ninety-Two Thousand Seven
Hundred Eighty Four Dollars ($103,092,784) on February 1, 2027, and to pay
interest on said principal sum from January 31, 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 the 1st day of February, May,
August and November of each year, commencing May 1, 1997, at a variable per
annum rate equal to LIBOR (as defined in the Indenture) plus .80% until the
principal hereof shall have become due and payable (plus Additional
Interest, if any), and on any overdue principal 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 same rate per
annum. The amount of interest payable for any period will be computed on
the actual number of days elapsed and a year of 360 days. 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 actual number
of days elapsed in such 90-day period. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment
of the 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 falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on the
date the payment was originally payable. A "Business Day" shall mean any
day other than a Saturday or a Sunday or a day on which banking
institutions in the City of New York or Grand Rapids, Michigan are
authorized or required by law or executive order to remain closed or a day
on which the Corporate Trust Office of the Trustee, or the principal office
of the Property Trustee under the Declaration, is closed for business. 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 the Securities (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of
business on the Regular Record Date for such interest installment, which
shall be the first day of the month of such Interest Payment Date. Any
<PAGE> 3
such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name the Securities for one or
more Predecessor Securities is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities not
less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in
said Indenture.
The Company shall have the right at any time during the term of
this Security, from time to time and as long as no Event of Default shall
have occurred or is continuing, to defer payment of interest on such
Security for up to 20 quarterly periods (an "Extension Period"), provided
that no Extension Period may extend past the Maturity of this Security.
There may be multiple Extension Periods of varying lengths during the term
of this Security. At the end of each Extension Period, if any, the Company
shall pay all interest then accrued and unpaid, together with interest
thereon, compounded quarterly at the rate specified on this Security to the
extent permitted by applicable law. During any such Extension Period, the
Company may not, and may not permit any subsidiary of the Company 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, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of
the Company that rank PARI PASSU with or junior in interest to the
Securities or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any subsidiary of the Company if such
guarantee ranks PARI PASSU or junior in interest to the Securities (other
than (A) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants or in connection
with a dividend reinvestment or stockholder stock purchase plan, (B) as a
result of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class or series of
the Company's indebtedness for any class or series of the Company's capital
stock, (C) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (D) any
declaration of a dividend in connection with any shareholder's rights plan,
or the issuance of rights, stock or other property under any shareholder's
rights plan, or the redemption or repurchase of rights pursuant thereto or
(E) any dividend in the form of stock, warrants, options or other rights
where the dividend stock of the stock issuable upon exercise of such
warrants, options, or other rights is the same stock as that on which the
dividend is being paid or ranks PARI PASSU with or junior to such stock).
<PAGE> 4
Prior to the termination of any such Extension Period, the Company may
further extend the interest payment period, provided that no Extension
Period may exceed 20 consecutive quarterly periods or extend beyond the
Stated Maturity of the Securities. Upon the termination of any such
Extension Period and the payment of all amounts then due on any Interest
Payment Date, the Company may elect to begin a new Extension Period subject
to the above requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company shall give the
Trustee notice of its election of such Extension Period at least one
Business Day prior to the record date for the related interest payment.
Payment of the principal of and interest on this Security will
be made at the office or agency of the Paying Agent maintained for that
purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts; PROVIDED, HOWEVER, that at the option of the Company,
payment of interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds at such
place and to such account as may be designated by the Person entitled
thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (i) agrees to and shall be
bound by such provisions, (ii) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided and (iii) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of
Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the
Indenture summarized on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
<PAGE> 5
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated:
OLD KENT FINANCIAL CORPORATION
By:____________________________________
Name:
Title:
<PAGE> 6
This Security is one of a duly authorized issue of Securities of
Old Kent Financial Corporation (the "Company"), designated as its Floating
Rate Junior Subordinated Debentures due 2027 (herein called the
"Securities"), issued under an Indenture, dated as of January 31, 1997
(herein called the "Indenture"), between the Company and Bankers Trust
Company, a New York banking corporation, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
At any time on or after February 1, 2007, the Company shall have
the right, subject to the terms and conditions of Article Twelve of the
Indenture, to redeem this Security at the option of the Company, in whole
or in part, at a Redemption Price equal to the principal amount so redeemed
plus accrued but unpaid interest (including any Additional Interest) to the
Redemption Date.
If a Special Event as defined in Article Twelve of the Indenture
shall occur and be continuing, the Company shall have the right, subject to
the terms and conditions of Article Twelve of the Indenture, to redeem this
Security at the option of the Company within 120 days of the occurrence of
a Special Event, without premium or penalty, in whole but not in part, at a
Redemption Price equal to 100% of the principal amount so redeemed plus
accrued but unpaid interest (including any Additional Interest) to the
Redemption Date. Any redemption pursuant to this paragraph will be made
upon not less than 30 nor more than 60 days notice, at the Redemption
Price. If the Securities are only partially redeemed by the Company, the
Securities will be redeemed by lot (or such other method of selection as
the Trustee may customarily employ). In the event of redemption of this
Security in part only, a new Security or Securities for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for satisfaction and discharge
or legal defeasance of the entire indebtedness of this Security and for the
defeasance of certain covenants under the Indenture at any time upon
compliance by the Company with certain conditions set forth in the
Indenture.
<PAGE> 7
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than a majority in
principal amount of the Outstanding Securities affected by such
modification, to modify the Indenture in a manner affecting the rights of
the Holders of the Securities; PROVIDED that so such modification may,
without the consent of the Holder of each Outstanding Security affected
thereby, (i) except to the extent permitted and subject to the conditions
set forth in the Indenture with respect to the extension of the Maturity of
the Security, change the maturity of, the principal of, or any installment
of interest on, the Security or reduce the principal amount thereof, or the
rate of payment of interest thereon, or change the place of payment where,
or the coin or currency in which, this Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of such
payment on or after the Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or modify the provisions of the Indenture
with respect to the subordination of the Securities in a manner adverse to
the Holders, (ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for such
supplemental Indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of the Indenture or certain
defaults hereunder and their consequences) provided for in the Indenture,
or (iii) modify any of the provisions of Section 513, Section 902 or
Section 1008 of the Indenture, 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 Holder of each Outstanding Security
affected thereby, PROVIDED that, so long as any of the Capital Securities
remains outstanding, no such amendment shall be made that adversely affects
the holders of the Capital Securities, and no termination of the Indenture
shall occur, and no waiver of an Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation
preference of the outstanding Capital Securities unless and until the
principal of and any premium on the Securities and all accrued and unpaid
interest thereon have been paid in full.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities, of authorized denominations and for the same
<PAGE> 8
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Securities 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 therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
THE SECURITIES AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
This is one of the Securities referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:__________________________________________
Authorized Signatory
Dated:
<PAGE> 9
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the
declaration by the Commission of the effectiveness of a registration
statement under the Securities Act covering resales of this Security
(which effectiveness shall not have been suspended or terminated at
the date of the transfer) and (ii) three years after the later of the
date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Security (or any
predecessor thereto) (the "Resale Restriction Termination Date"), the
undersigned confirms that it has not utilized any general solicitation
or general advertising in connection with the transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act of 1933, as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the
registration requirements of the Securities Act of 1933, as
amended.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered Holder thereof; PROVIDED,
HOWEVER, that if box (3), (4) or (6) is checked, the Company or the
Trustee may require, prior to registering any such transfer of the
Securities, in its sole discretion, such written legal opinions,
certifications (including an investment letter in the case of box (3))
and other information as the Trustee or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
<PAGE> 10
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any
person other than the Holder hereof unless and until the conditions to
any such transfer of registration set forth herein and in Section 315
of the Indenture shall have been satisfied.
Dated: __________________ Signed:____________________________
(Sign exactly as name
appears on the other side of
this Security)
Signature Guarantee: ____________________
<PAGE> 1
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor
is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________________ ___________________________________
NOTICE: To be executed by an
executive officer
<PAGE>
EXHIBIT 4.6
- ---------------------------------------------------------------------------
AMENDED AND RESTATED DECLARATION OF TRUST
OLD KENT CAPITAL TRUST I
Dated as of January 31, 1997
- ---------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions. . . . . . . . . . . . . . . 1
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Trust Act . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Security . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Security Beneficial Owner. . . . . . . . . . . . . . . . . . 2
Capital Security Certificate . . . . . . . . . . . . . . . . . . . . 2
Cedel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate of Trust . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities Holder . . . . . . . . . . . . . . . . . . . . . . 3
Common Security. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Security Certificate. . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . 3
Covered Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debenture Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debenture Issuer Indemnified Person. . . . . . . . . . . . . . . . . 3
Debenture Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DTC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DWAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fiduciary Indemnified Person . . . . . . . . . . . . . . . . . . . . 4
Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indemnified Person . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture Event of Default . . . . . . . . . . . . . . . . . . . . . 5
Initial Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . 5
i
<PAGE>
PAGE
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . 5
Investment Company Event . . . . . . . . . . . . . . . . . . . . . . 5
Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
List of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Majority in Liquidation Amount . . . . . . . . . . . . . . . . . . . 5
New Capital Securities . . . . . . . . . . . . . . . . . . . . . . . 5
New Capital Security Certificate . . . . . . . . . . . . . . . . . . 5
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Payment Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Private Placement Legend . . . . . . . . . . . . . . . . . . . . . . 6
Property Account . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Pro Rata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Qualified Institutional Buyer. . . . . . . . . . . . . . . . . . . . 6
Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Registration Rights Agreement. . . . . . . . . . . . . . . . . . . . 6
Regular Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regulation S . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regulation S Global Security . . . . . . . . . . . . . . . . . . . . 7
Regulatory Capital Event . . . . . . . . . . . . . . . . . . . . . . 7
Related Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Global Security . . . . . . . . . . . . . . . . . . . . . 7
Restricted Period. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Security. . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 144A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 3a-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Special Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sponsor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Successor Delaware Trustee . . . . . . . . . . . . . . . . . . . . . 8
Successor Entity . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Successor Property Trustee . . . . . . . . . . . . . . . . . . . . . 8
Successor Security . . . . . . . . . . . . . . . . . . . . . . . . . 8
Super Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tax Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10% in Liquidation Amount. . . . . . . . . . . . . . . . . . . . . . 8
Transfer Restricted Securities . . . . . . . . . . . . . . . . . . . 8
Transfer Restricted Securities Certificate . . . . . . . . . . . . . 9
Treasury Regulations . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Enforcement Event. . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . 9
ii
<PAGE>
PAGE
Trustee" or "Trustees. . . . . . . . . . . . . . . . . . . . . . . . 9
Trustees' Authorization Certificate. . . . . . . . . . . . . . . . . 9
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application. . . . . . . . . . . . . . 9
Section 2.2 Lists of Holders of Securities. . . . . . . . . . . . . . . 10
Section 2.3 Reports by the Property Trustee . . . . . . . . . . . . . . 10
Section 2.4 Periodic Reports to the Property Trustee. . . . . . . . . . 10
Section 2.5 Evidence of Compliance with Conditions Precedent. . . . . . 10
Section 2.6 Trust Enforcement Events; Waiver. . . . . . . . . . . . . . 11
Section 2.7 Trust Enforcement Event; Notice . . . . . . . . . . . . . . 12
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization . . . . . . . . . . . . . . . . . . . 13
Section 3.2 Office. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.5 Title to Property of the Trust. . . . . . . . . . . . . . . 14
Section 3.6 Powers and Duties of the Regular Trustees . . . . . . . . . 14
Section 3.7 Prohibition of Actions by the Trust and the Trustees. . . . 17
Section 3.8 Powers and Duties of the Property Trustee . . . . . . . . . 19
Section 3.9 Certain Duties and Responsibilities of the Property
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.10 Certain Rights of Property Trustee. . . . . . . . . . . . . 23
Section 3.11 Delaware Trustee. . . . . . . . . . . . . . . . . . . . . . 25
Section 3.12 Execution of Documents. . . . . . . . . . . . . . . . . . . 26
Section 3.13 Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . . . . 26
Section 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.16 Property Trustee May File Proofs of Claim . . . . . . . . . 28
ARTICLE 4
SPONSOR
Section 4.1 Responsibilities of the Sponsor . . . . . . . . . . . . . . 29
Section 4.2 Compensation, Indemnification and Expenses of the
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 29
iii
<PAGE>
PAGE
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.1 Debenture Issuer's Purchase of Common Securities. . . . . . 30
Section 5.2 Covenants of the Common Securities Holder . . . . . . . . . 30
ARTICLE 6
TRUSTEES
Section 6.1 Number of Trustees. . . . . . . . . . . . . . . . . . . . . 30
Section 6.2 Delaware Trustee. . . . . . . . . . . . . . . . . . . . . . 31
Section 6.3 Property Trustee; Eligibility . . . . . . . . . . . . . . . 31
Section 6.4 Qualifications of Regular Trustees and Delaware
Trustee Generally . . . . . . . . . . . . . . . . . . . . . 32
Section 6.5 Initial Regular Trustees. . . . . . . . . . . . . . . . . . 32
Section 6.6 Appointment, Removal and Resignation of Trustees. . . . . . 32
Section 6.7 Vacancies among Trustees. . . . . . . . . . . . . . . . . . 34
Section 6.8 Effect of Vacancies . . . . . . . . . . . . . . . . . . . . 34
Section 6.9 Delegation of Power . . . . . . . . . . . . . . . . . . . . 34
Section 6.10 Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 7
THE SECURITIES
Section 7.1 General Provisions Regarding Securities . . . . . . . . . . 35
Section 7.2 Distributions . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.3 Redemption of Securities. . . . . . . . . . . . . . . . . . 38
Section 7.4 Redemption Procedures . . . . . . . . . . . . . . . . . . . 38
Section 7.5 Voting Rights of Capital Securities . . . . . . . . . . . . 40
Section 7.6 Voting Rights of Common Securities. . . . . . . . . . . . . 42
Section 7.7 Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.8 Transfer of Securities. . . . . . . . . . . . . . . . . . . 44
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates . . . . . 45
Section 7.10 Deemed Security Holders . . . . . . . . . . . . . . . . . . 45
Section 7.11 Global Securities . . . . . . . . . . . . . . . . . . . . . 45
Section 7.12 Restrictive Legend. . . . . . . . . . . . . . . . . . . . . 47
Section 7.13 Special Transfer Provisions . . . . . . . . . . . . . . . . 49
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust. . . . . . . . . . . . 52
Section 8.2 Liquidation Distribution Upon Termination and
Dissolution of the Trust. . . . . . . . . . . . . . . . . . 53
iv
<PAGE>
PAGE
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.3 Fiduciary Duty. . . . . . . . . . . . . . . . . . . . . . . 55
Section 9.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.5 Outside Businesses. . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.2 Certain Accounting Matters. . . . . . . . . . . . . . . . . 58
Section 10.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 10.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.2 Meetings of the Holders of Securities; Action by
Written Consent . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 12.2 Representations and Warranties of the Delaware
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 13.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 66
Section 13.3 Intention of the Parties. . . . . . . . . . . . . . . . . . 66
Section 13.4 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 13.5 Successors and Assigns. . . . . . . . . . . . . . . . . . . 66
Section 13.6 Partial Enforceability. . . . . . . . . . . . . . . . . . . 66
Section 13.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 66
Section 13.8 Undertaking for Costs.. . . . . . . . . . . . . . . . . . . 67
v
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated as of January 31, 1997 between OLD KENT FINANCIAL CORPORATION, a
Michigan corporation, as Sponsor, and Albert T. Potas, Thomas E. Powell and
Mary E. Tuuk, as the initial Regular Trustees, BANKERS TRUST COMPANY, as
the initial Property Trustee and BANKERS TRUST (DELAWARE) as the initial
Delaware Trustee, not in their individual capacities but solely as
Trustees, and the holders, from time to time, of undivided beneficial
ownership interests in the assets of the Trust (as defined) to be issued
pursuant to this Declaration.
WHEREAS, the Trustees and the Sponsor established Old Kent
Capital Trust I (the "Trust"), a business trust under the Business Trust
Act (as defined, together with other capitalized terms, herein) pursuant to
a Declaration of Trust dated as of January 27, 1997 (the "Original
Declaration") and a Certificate of Trust (the "Certificate of Trust") filed
with the Secretary of State of the State of Delaware on January 28, 1997;
and
WHEREAS, the sole purpose of the Trust shall be to issue and sell
certain securities representing undivided beneficial ownership interests in
the assets of the Trust, to invest the proceeds from such sales in the
Debentures (as defined) issued by the Debenture Issuer (as defined) and to
engage in only those activities necessary or incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the
Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(i) capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
<PAGE> 2
(ii) a term defined anywhere in this Declaration has the same
meaning throughout;
(iii) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to
time;
(iv) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless otherwise
specified;
(v) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(vi) a reference to the singular includes the plural and vice
versa and a reference to any masculine form of a term shall include the
feminine form of a term, as applicable.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means the Chairman of the Board,
a Vice Chairman of the Board, the Chief Executive Officer, the President, a
Vice President, the principal financial officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of such
Person.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York and Grand Rapids,
Michigan are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Property Trustee
is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Beneficial Owner" means, with respect to any
beneficial interest in a Global Security, ownership and transfers of which
shall be maintained and made through book entries by a Depositary, a Person
who is the beneficial owner of such beneficial interest, as reflected on
the books of the Depositary, or on the books of a Person maintaining an
account with such Depositary (as a direct or indirect participant, in each
case in accordance with the rules of such Depositary).
"Capital Security Certificate" means a certificate representing a
Capital Security.
<PAGE> 3
"Cedel" means Cedel Bank, societe anonymne.
"Certificate" means a Common Security Certificate or a Capital
Security Certificate.
"Certificate of Trust" has the meaning specified in the recitals
hereto.
"Closing Date" means the date or dates on which the Capital
Securities are issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific
section of the Code refers not only to such specific section but also to
any corresponding provision of any federal tax statute enacted after the
date of this Declaration, as such specific section or corresponding
provision is in effect on the date of application of the provisions of this
Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities Holder" means Old Kent Financial Corporation
in its capacity as purchaser and holder of all of the Common Securities
issued by the Trust.
"Common Security" has the meaning specified in Section 7.1
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security.
"Corporate Trust Office" means the office of the Property Trustee
at which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Declaration is located at Four Albany Street, 4th Floor,
New York, New York 10006; Attention: Corporate Market Services.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of (A) the Trust or (B)
the Trust's Affiliates; and (ii) any Holder of Securities.
"Debenture Issuer" means Old Kent Financial Corporation in its
capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (i) any Regular
Trustee; (ii) any Affiliate of any Regular Trustee; (iii) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Regular Trustee or any Affiliate thereof; or (iv) any
officer, employee or agent of the Trust or its Affiliates.
<PAGE> 4
"Debenture Trustee" means Bankers Trust Company, in its capacity
as trustee under the Indenture until a successor is appointed thereunder,
and thereafter means such successor trustee.
"Debentures" means the Securities (as defined in the Indenture)
to be issued by the Debenture Issuer and to be held by the Property
Trustee.
"Delaware Trustee" has the meaning set forth in Section 6.2.
"Depositary" means, with respect to Securities issuable in whole
or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary
for such Securities.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 7.2.
"DTC" means The Depository Trust Company, the initial Depositary.
"DWAC" means Deposit and Withdrawal At Custodian Service.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fiscal Year" has the meaning set forth in Section 10.1.
"Global Security" has the meaning set forth in Section 7.11.
"Guarantee" means the guarantee agreement of the Sponsor in
respect of the Capital Securities and the Common Securities.
"Holder" means a Person in whose name a Certificate representing
a Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite liquidation amount of Capital
Securities have voted on any matter provided for in this Declaration, then
for the purpose of such determination only (and not for any other purpose
hereunder), if the Capital Securities remain in the form of one or more
<PAGE> 5
Global Securities, the term "Holders" shall mean the holder of the Global
Security acting at the direction of the beneficial owners of the Capital
Securities.
"Indemnified Person" means a Debenture Issuer Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of January 31, 1997,
between the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Initial Purchaser" means Lehman Brothers Inc.
"Investment Company" means an investment company as defined in
the Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of an
opinion of counsel, rendered by a law firm having a recognized national
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), the Trust is or will be
considered an "investment company" that is required to be registered under
the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the Closing Date.
"Legal Action" has the meaning set forth in Section 3.6(vii).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the
context may require, Holders of outstanding Capital Securities or Holders
of outstanding Common Securities, voting separately as a class, who are the
record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all outstanding Securities of the
relevant class.
"New Capital Securities" has the meaning specified in Section
7.1.
<PAGE> 6
"New Capital Security Certificate" has the meaning specified in
Section 7.1.
"Officers' Certificate" means, with respect to any Person (other
than Regular Trustees who are natural persons), a certificate signed by two
Authorized Officers of such Person on behalf of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(ii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary
to enable such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iii) a statement as to whether, in the opinion of each such
officer and on behalf of such Person, such condition or covenant has been
complied with; PROVIDED, that the term "Officers' Certificate", when used
with reference to Regular Trustees who are natural persons shall mean a
certificate signed by two of the Regular Trustees which otherwise satisfies
the foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(a).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof or any other
entity of whatever nature.
"Private Placement Legend" has the meaning specified in Section
314 of the Indenture.
"Property Account" has the meaning specified in Section 3.8(c).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities according
to the aggregate liquidation amount of the Securities held by the relevant
Holder in relation to the aggregate liquidation amount of all Securities
outstanding.
<PAGE> 7
"Qualified Institutional Buyer" or "QIB" has the meaning
specified in Rule 144A under the Securities Act.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Redemption Price" has the meaning specified in Section 7.3(a).
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof between the Debenture Issuer, the Trust and
the Initial Purchaser for the benefit of themselves and the Holders as the
same may be amended from time to time in accordance with the terms thereof.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Regulation S" means Regulation S under the Securities Act and
any successor regulation thereto.
"Regulation S Global Security" means any Global Security or
Securities evidencing Securities that are to be traded pursuant to
Regulation S.
"Regulatory Capital Event" means that the Debenture Issuer shall
have received an opinion of independent bank regulatory counsel experienced
in such matters to the effect that, as a result of (i) any amendment to or
change (including any announced prospective change) in the laws (or any
regulations thereunder) of the United States or any rules, guidelines or
policies of the Federal Reserve or (ii) any official or administrative
pronouncement or action or judicial decision for interpreting or applying
such laws or regulations which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original
issuance of the Capital Securities, the Capital Securities do not
constitute, or within 90 days of the date thereof, will not constitute Tier
1 capital (or its then equivalent); PROVIDED, HOWEVER, that the
distribution of the Debentures in connection with the liquidation of the
Trust by the Debenture Issuer shall not in and of itself constitute a
Regulatory Capital Event unless such liquidation shall have occurred in
connection with a Tax Event or an Investment Company Event.
"Related Party" means, with respect to the Sponsor, any direct or
wholly owned subsidiary of the Sponsor or any Person that owns, directly or
indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer", when used with respect to the Property
Trustee, means any officer within the Corporate Trust Office of the
Property Trustee, including any Vice-President, any Assistant
Vice-President, Managing Director, the Secretary, any Assistant Secretary,
<PAGE> 8
or any other officer of the Corporate Trust Office of the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Global Security" means any Global Security or
Securities evidencing Securities that are to be sold pursuant to Rule 144A.
"Restricted Period" shall have the meaning specified in
Section 7.13(g).
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event or
an Investment Company Event.
"Sponsor" means Old Kent Financial Corporation, a Michigan
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section
6.6(b).
"Successor Entity" has the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning specified in Section
6.6(b).
"Successor Security" has the meaning specified in Section
3.15(b)(i)B.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Debenture Issuer of an
opinion of counsel, rendered by a law firm having a recognized national tax
<PAGE> 9
practice, to the effect that, as a result of any amendment to, change in or
announced proposed change in the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof
or therein, or as a result of any official or administrative pronouncement
or action or judicial decision interpreting or applying such laws or
regulations, which amendment or change is adopted or which proposed change,
pronouncement or decision is announced or which action is taken on or after
the Closing Date, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of such opinion, subject to
the U.S. federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Debenture Issuer on such
Debentures is not, or within 90 days of the date of such opinion, will not
be deductible by the Debenture Issuer, in whole or in part, for U.S.
federal income tax purposes or (iii) the Trust is, or will be within 90
days of the date of such opinion, subject to more than a DE MINIMUS amount
of other taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the
context may require, Holders of outstanding Capital Securities or Holders
of outstanding Common Securities, voting separately as a class, who are the
record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the
relevant class.
"Transfer Restricted Securities" has the meaning specified in
Section 7.1.
"Transfer Restricted Securities Certificate" has the meaning
specified in Section 7.1.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by
the United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office
<PAGE> 10
in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee
or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trustees' Authorization Certificate" means a written certificate
signed by two of the Regular Trustees for the purpose of establishing the
terms and form of the Capital Securities and the Common Securities as
determined by the Regular Trustees.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the Trust's classification as a grantor trust
for U.S. federal income tax purposes and shall not affect the nature of the
Securities as equity securities representing undivided beneficial ownership
interests in the assets of the Trust.
Section 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee with a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of
the Holders of the Securities ("List of Holders"), (i) not later than June
30 and December 31 of each year and current as of such date and (ii) at any
other time, within 30 days of receipt by the Trust of a written request
from the Property Trustee for a List of Holders as of a date no more than
15 days before such List of Holders is given to the Property Trustee;
provided that neither the Sponsor nor the Regular Trustees on behalf of the
Trust shall be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given
<PAGE> 11
to the Property Trustee by the Sponsor and the Regular Trustees on behalf
of the Trust. The Property Trustee shall preserve, in as current a form as
is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting
in such capacity), provided that the Property Trustee may, but shall not be
obligated to, destroy any List of Holders previously given to it on receipt
of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under, and shall be entitled to the benefits of, Sections 311(a), 311(b)
and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after December 15 of each year (commencing in the
year of the first anniversary of the issuance of the Capital Securities),
the Property Trustee shall provide to the Holders of the Capital Securities
such reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act and an Officer's Certificate as to
its compliance with all conditions and covenants applicable to the Sponsor
and the Regular Trustees under this Declaration on an annual basis on or
before 120 days after the end of each fiscal year of the Sponsor.
Section 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) shall be given in the form of an
Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the
Capital Securities may, by vote or written consent, on behalf of the
Holders of all of the Capital Securities, waive any past Trust Enforcement
<PAGE> 12
Event in respect of the Capital Securities and its consequences, provided
that, if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement
Event under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Trust
Enforcement Event under the Declaration may only be waived
by the vote or written consent of the Holders of at least
the proportion in liquidation amount of the Capital
Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu
of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture
Act. Upon such waiver, any such default shall cease to exist, and any
Trust Enforcement Event with respect to the Capital Securities arising
therefrom shall be deemed to have been cured, for every purpose of this
Declaration and the Capital Securities, but no such waiver shall extend to
any subsequent or other Trust Enforcement Event with respect to the Capital
Securities or impair any right consequent thereon. Any waiver by the
Holders of the Capital Securities of a Trust Enforcement Event with respect
to the Capital Securities shall also be deemed to constitute a waiver by
the Holders of the Common Securities of any such Trust Enforcement Event
with respect to the Common Securities for all purposes of this Declaration
without any further act, vote, or consent of the Holders of the Common
Securities.
(b) The Holders of a Majority in Liquidation Amount of the
Common Securities may, by vote or written consent, on behalf of the Holders
of all of the Common Securities, waive any past Trust Enforcement Event in
respect of the Common Securities and its consequences, provided that, if
the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived
such Trust Enforcement Event under the Declaration as
provided below in this Section 2.6(b), the Trust Enforcement
Event under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of the
Common Securities are deemed to have waived such Trust
Enforcement Event under the Declaration as provided below in
<PAGE> 13
this Section 2.6(b), the Trust Enforcement Event under the
Declaration may only be waived by the vote or written
consent of the Holders of at least the proportion in
liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have
waived any Trust Enforcement Event and all Trust Enforcement Events with
respect to the Common Securities and the consequences thereof until all
Trust Enforcement Events with respect to the Capital Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement
Events with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting
solely on behalf of the Holders of the Capital Securities and only the
Holders of the Capital Securities will have the right to direct the
Property Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.6(b) shall be in lieu of Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and
any Trust Enforcement Event with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
Trust Enforcement Event with respect to the Common Securities or impair any
right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Capital Securities
constitutes a waiver of the corresponding Trust Enforcement Event with
respect to the Capital Securities under this Declaration. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B)
of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of a Trust Enforcement Event, transmit by mail, first class
postage prepaid, to the Holders of the Securities, notices of all defaults
with respect to the Securities actually known to a Responsible Officer of
the Property Trustee, unless such defaults have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section
2.7(a) being hereby defined to be an Indenture Event of Default, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, except for a default
<PAGE> 14
in the payment of principal of (or premium, if any) or interest on any of
the Debentures, the Property Trustee shall be fully protected in
withholding such notice if and so long as a Responsible Officer of the
Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture;
or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of
the Property Trustee charged with the administration of this
Declaration shall have actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization.
The Trust hereby continued is named "Old Kent Capital Trust I" as
such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of Securities. The Trust's
activities may be conducted under the name of the Trust or any other name
deemed advisable by the Regular Trustees.
Section 3.2 Office.
The address of the principal executive office of the Trust is c/o
Old Kent Financial Corporation, Attn: General Counsel, One Vandenberg
Center, Grand Rapids, MI 49503. On 10 Business Days' written notice to the
Holders of Securities, the Regular Trustees may designate another principal
office.
Section 3.3 Purpose.
The exclusive purposes and functions of the Trust are (i) to
issue and sell the Securities and use the gross proceeds from such sale to
acquire the Debentures and (ii) except as otherwise limited herein, to
engage in only those other activities necessary or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, mortgage, pledge any of its assets or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified as a grantor trust for U.S. federal income tax purposes.
<PAGE> 15
By the acceptance of this Trust, none of the Trustees, the
Sponsor, the Holders of the Capital Securities or Common Securities or the
Capital Security Beneficial Owners will take any position which is contrary
to the classification of the Trust as a grantor trust for U.S. federal
income tax purposes.
Section 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall
have exclusive authority to carry out the purposes of the Trust. An action
taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers
shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration.
(a) Except as expressly set forth in this Declaration and except
if a meeting of the Regular Trustees is called with respect to any matter
over which the Regular Trustees have power to act, any power of the Regular
Trustees may be exercised by, or with the consent of, any one such Regular
Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law,
any Regular Trustee is authorized to execute on behalf of the Trust any
documents which the Regular Trustees have the power and authority to cause
the Trust to execute pursuant to Section 3.6(ii), provided, that the
registration statements referred to in Section 3.6(ii)(A), including any
amendments thereto, shall be signed by or on behalf of a majority of the
Regular Trustees; and
(c) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his
or her power for the purposes of signing any documents which the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures
and the Property Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The
Holders shall not have legal title to any part of the assets of the Trust,
but shall have an undivided beneficial ownership interest in the assets of
the Trust.
<PAGE> 16
Section 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the power, duty and authority to
cause the Trust to engage in the following activities, subject to the
limitations and restrictions of applicable laws:
(i) to establish the terms and form of the Capital Securities
and the Common Securities in the manner specified in Section 7.1 and issue
and sell the Capital Securities and the Common Securities in accordance
with this Declaration; PROVIDED, HOWEVER, that the Trust may issue no more
than two series of Capital Securities (which will consist exclusively of
the Transfer Restricted Securities and the New Capital Securities) and,
PROVIDED FURTHER, that there shall be no interests in the Trust other than
the Securities, and no more than one series of Common Securities;
(ii) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(A) execute and file with the Commission one or more
registration statements on the applicable forms
prepared by the Sponsor, including any amendments
thereto, pertaining to the Capital Securities, the
Guarantee and the Debentures;
(B) if deemed necessary or desirable by the Sponsor,
execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any
other national stock exchange or the NASDAQ National
Market for listing of any Capital Securities, the
Guarantee and the Debentures;
(C) if deemed necessary or desirable by the Sponsor,
execute and file with the Commission a registration
statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the
registration of the Capital Securities, the Guarantee
and the Debentures under Section 12(b) of the
Exchange Act;
(D) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the
Sponsor to be necessary, in order to qualify or
register all or part of the Capital Securities in any
State in which the Sponsor has determined to qualify
or register such Capital Securities for sale;
(E) execute and enter into a purchase agreement and other
related agreements providing for the sale of the
Capital Securities to the Initial Purchaser; and
<PAGE> 17
(F) execute and enter into the Registration Rights
Agreement.
(iii) to acquire the Debentures with the proceeds of the sale of
the Capital Securities and the Common Securities; provided, however, that
the Regular Trustees shall cause legal title to the Debentures to be held
of record in the name of the Property Trustee for the benefit of the
Holders of the Capital Securities and the Holders of the Common Securities;
(iv) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular
Trustees shall consult with the Sponsor and the Property Trustee before
taking or refraining from taking any action in relation to any such Special
Event;
(v) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and
with respect to, for the purposes of Section 316(c) of the Trust Indenture
Act, Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Capital Securities and Holders of Common
Securities as to such actions and applicable record dates;
(vi) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of this Declaration
and the Securities;
(vii) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against
the Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property
Trustee has the exclusive power to bring such Legal Action;
(viii) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers, contractors, advisors
and consultants to conduct only those services that the Regular Trustees
have authority to conduct directly, and to and pay reasonable compensation
for such services;
(ix) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(x) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(xi) to incur expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(xii) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
<PAGE> 18
(xiii) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its election
to defer payments of interest on the Debentures by extending the interest
payment period under the Debentures as authorized by the Indenture;
(xiv) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the
laws of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Capital Securities and the Holders of the Common Securities or to
enable the Trust to effect the purposes for which the Trust was created;
(xv) to take any action, not inconsistent with applicable law,
that the Regular Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set
out in Section 3.3 or the activities of the Trust as set out in this
Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under
the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust
for U.S. federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the
Debenture Issuer for U.S. federal income tax
purposes.
(xvi) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the Regular Trustees,
on behalf of the Trust; and
(xvii) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3 and subject to the limitations and
restrictions of applicable law, and the Regular Trustees shall have no
power to, and shall not, take any action that is inconsistent with the
purposes and functions of the Trust set forth in Section 3.3 or that is
inconsistent with or in contravention of any applicable law.
<PAGE> 19
Subject to this Section 3.6, the Regular Trustees shall have none
of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
Section 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular,
the Trust shall not and the Trustees (including the Property Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than the Debentures (and any
interest or proceeds received thereon) and the Guarantee
(and the proceeds received thereon or with respect
thereto);
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever
(except to the extent expressly authorized in this
Declaration or by the terms of the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other
than the Securities; or
(viii) other than as provided in this Declaration or by the terms
of the Securities, (A) direct the time, method and place
of conducting any proceeding for any remedy available to
the Debenture Trustee or exercising any trust or power
conferred upon the Property Trustee with respect to the
Debentures, (B) waive any past default that is waivable
under the Indenture, (C) exercise any right to rescind or
<PAGE> 20
annul any declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any
amendment, modification or termination of the Indenture or
the Debentures where such consent shall be required
unless, in each case, the Trust shall have received (1)
the prior approval of the Majority in Liquidation Amount
of the Capital Securities; PROVIDED, HOWEVER, that where a
consent or action under the Indenture would require the
consent or act of the holders of more than a majority of
the aggregate liquidation amount of Debentures affected
thereby, only the Holders of the percentage of the
aggregate stated liquidation amount of the Capital
Securities which is at least equal to the percentage
required under the Indenture may direct the Property
Trustee to give such consent to take such action and (2)
an opinion of counsel to the effect that such modification
will not cause more than an insubstantial risk that
(a) the Trust will be deemed an Investment Company
required to be registered under the Investment Company Act
or (b) the Trust will not be classified as other than a
grantor trust for U.S. federal income tax purposes; or
(ix) take any action inconsistent with the status of the Trust
as a grantor trust for U.S. federal income tax purposes;
or
(x) revoke any action previously authorized or approved by a
vote of the Holders of the Capital Securities except
pursuant to a subsequent vote of the Holders of the
Capital Securities.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and interest
of the Property Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Property Trustee in accordance
with Section 6.6. Such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the Debentures have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
<PAGE> 21
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and
under the exclusive control of the Property Trustee on
behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such
funds into the Property Account and make payments to the
Holders of the Capital Securities and Holders of the
Common Securities from the Property Account in accordance
with Section 7.2. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this
Declaration. The Property Account shall be an account
that is maintained with a banking institution the rating
on whose long-term unsecured indebtedness is at least
equal to the rating assigned to the Capital Securities by
a "nationally recognized statistical rating organization",
as that term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Capital Securities and the Common Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as so directed and
as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities
upon the occurrence of a Special Event.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Declaration or the
Trust Indenture Act; provided, however, that if a Trust Enforcement Event
has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal (or premium,
if any) on the Debentures on the date such interest or principal (or
premium, if any) is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of (or premium, if any) or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
<PAGE> 22
Security of such Holder (a "Direct Action"), on or after the respective due
date specified in the Debentures. In connection with such Direct Action,
the rights of the Holders of the Common Securities will be subrogated to
the rights of such Holder of Capital Securities to the extent of any
payment made by the Debenture Issuer to such Holder of Capital Securities
in such Direct Action; provided, however, that no Holder of the Common
Securities may exercise any such right of subrogation so long as an Trust
Enforcement Event with respect to the Capital Securities has occurred and
is continuing. Except as provided in the preceding sentences, the Holders
of Capital Securities will not be able to exercise directly any other
remedy available to the Holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities;
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6;
or
(iii) the Property Trustee has resigned in accordance with
Section 6.6.
(g) Subject to such limitations as are necessary to insure
compliance with Section 3.3, the Property Trustee shall have the legal
power to exercise all of the rights, powers and privileges of a holder of
Debentures under the Indenture and, if a Trust Enforcement Event actually
known to a Responsible Officer of the Property Trustee occurs and is
continuing, the Property Trustee shall, for the benefit of Holders of the
Securities, enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities
and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. Any Paying Agent may be removed by the Property Trustee at
any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee. In the event the Capital
Securities do not remain in the form of one or more Global Securities, the
Property Trustee will act as Paying Agent and may designate an additional
or substitute Paying Agent at any time.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
<PAGE> 23
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3 and subject to the limitations and
restrictions of applicable law, and the Property Trustee shall have no
power to, and shall not, take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after all Trust Enforcement Events that may have
occurred have been cured or waived, shall undertake to perform only such
duties as are specifically set forth in this Declaration and no implied
covenants shall be read into this Declaration against the Property Trustee.
In case a Trust Enforcement Event has occurred (that has not been cured or
waived pursuant to Section 2.6) of which a Responsible Officer of the
Property Trustee has actual knowledge, the Property Trustee shall exercise
such of the rights and powers vested in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except
that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement
Events that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions
of this Declaration and the Property Trustee shall
not be liable except for the performance of such
duties and obligations as are specifically set forth
in this Declaration, and no implied covenants or
obligations shall be read into this Declaration
against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of
any such certificates or opinions that by any
provision hereof are specifically required to be
<PAGE> 24
furnished to the Property Trustee, the Property
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of
the Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without
negligence, in good faith in accordance with the direction
of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust
or power conferred upon the Property Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or
liability is not assured to it under the terms of this
Declaration or indemnity satisfactory to the Property
Trustee against such risk or liability is not assured to
it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the
Debentures and the Property Account shall be to deal with
such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject
to the protections and limitations on liability afforded
to the Property Trustee under this Declaration and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes
or assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise
agree with the Sponsor in writing. Money held by the
Property Trustee need not be segregated from other funds
<PAGE> 25
held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by
law;
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable for
any default or misconduct of the Regular Trustees or the
Sponsor; and
(ix) the Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise
agreed in writing with the Debenture Issuer.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to
be genuine and to have been signed, sent or presented by
the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate (or,
with respect to the establishment of the terms and form of
the Securities by the Regular Trustees, by a Trustees'
Authorization Certificate);
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting
any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor
or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
<PAGE> 26
(including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording,
refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of such
counsel and experts with respect to legal matters or
advice within the scope of such experts' area of expertise
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice
or opinion, such counsel may be counsel to the Sponsor or
any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at
any time to seek instructions concerning the
administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holder,
unless such Holder shall have provided to the Property
Trustee security and indemnity, satisfactory to the
Property Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the
Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable
advances as may be requested by the Property Trustee;
provided that, nothing contained in this Section 3.10(a)
shall be taken to relieve the Property Trustee, upon the
occurrence of an Indenture Event of Default, of its
obligation to exercise the rights and powers vested in it
by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part
<PAGE> 27
of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or
its agents alone shall be sufficient and effective to
perform any such action and no third party shall be
required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which
shall be conclusively evidenced by the Property Trustee's
or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Property Trustee
(A) may request instructions from the Holders of the
Securities, the Regular Trustees or the Sponsor which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as
would be entitled to direct the Property Trustee under the
terms of the Securities in respect of such remedy, right
or action, (B) may refrain from enforcing such remedy or
right or taking such other action until such instructions
are received and (C) shall be protected in conclusively
relying on or acting in accordance with such instructions;
(xi) if no Trust Enforcement Event has occurred and is
continuing and the Property Trustee is required to decide
between alternative causes of action, construe ambiguous
provisions in their Declaration or is unsure of the
application of any provision of their Declaration, and the
matter is not one on which Holders of Capital Securities
are entitled under the Declaration to vote, then the
Property Trustee may, but shall be under no duty to, take
such action as is directed by the Sponsor and will have no
liability except for its own bad faith, negligence or
willful misconduct;
(xii) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any
obligation to take any action that is discretionary under
the provisions of this Declaration;
(xiii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without
<PAGE> 28
negligence, in good faith and reasonably believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Declaration; and
(xiv) the Trustee shall have a lien prior to the Securities as
to all property and funds held by it hereunder for any
amount owing it or any predecessor Trustee, except with
respect to funds held in trust for the benefit of the
Holders of particular Securities.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a duty.
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 6.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described
in this Declaration. Except as set forth in Section 6.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Business Trust Act.
Section 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust
or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Declaration, the Securities, the Debentures
or the Indenture.
<PAGE> 29
Section 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions
of Article 8 hereof.
Section 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other Person,
except as described in Section 3.15(b) and (c).
(b) The Trust may, at the request of the Sponsor, with the
consent of the Regular Trustees or, if there are more than two, a majority
of the Regular Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or
lease its properties substantially as an entirety to a trust organized as
such under the laws of any State; PROVIDED that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Capital Securities other
securities having substantially the same terms as the
Capital Securities (the "Successor Securities") so
long as the Successor Securities rank the same as the
Capital Securities rank with respect to Distributions
and payments upon liquidation, redemption and
otherwise;
(ii) the Sponsor expressly appoints a trustee of such Successor
Entity that possesses the same powers and duties as the
Property Trustee as the holder of the Debentures;
(iii) if the Capital Securities or any Successor Securities are
listed, any Successor Securities will be listed upon
notification of issuance, on any national securities
exchange or with any other organization on which the
Capital Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
<PAGE> 30
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of
the Capital Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose identical to that of
the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor has
received an opinion of independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and
privileges of the Holders of the Capital Securities
(including any Successor Securities) in any material
respect;
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither
the Trust nor the Successor Entity will be required
to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Trust
(or the Successor Entity) will continue to be
classified as a grantor trust for U.S. federal income
tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the Common Securities and guarantees the
obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the
Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation,
merger or replacement would cause the Trust or Successor Entity to be
classified as other than a grantor trust for U.S. federal income tax
purposes and each Holder of the Securities not to be treated as owning an
undivided interest in the Debentures.
<PAGE> 31
Section 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other similar judicial proceeding relative to the Trust or
any other obligor upon the Securities or the property of the Trust or of
such other obligor or their creditors, the Property Trustee (irrespective
of whether any Distributions on the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on
the Trust for the payment of any past due Distributions) shall be entitled
and empowered, to the fullest extent permitted by law, by intervention in
such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and
to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due the
Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement adjustment or
compensation affecting the Securities or the rights of any Holder thereof
or to authorize the Property Trustee to vote in respect of the claim of any
Holder in any such proceeding.
<PAGE> 32
ARTICLE 4
SPONSOR
Section 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital Securities,
the Sponsor shall have the exclusive right and responsibility to engage in
the following activities:
(i) to prepare for filing by the Trust with the Commission one
or more registration statements on the applicable forms, including any
amendments thereto, pertaining to the Capital Securities, the Guarantee and
the Debentures;
(ii) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Capital Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(iii) to prepare any filing by the Trust of an application to the
New York Stock Exchange, Inc. or any other national stock exchange or the
Nasdaq National Market for listing, if such filing is determined to be
necessary or desirable by the Sponsor;
(iv) to prepare any filing by the Trust with the Commission
of a registration statement on Form 8-A, including any amendments thereto, if
such filing is determined to be necessary or desirable by the Sponsor;
(v) to negotiate the terms of and execute and deliver a
purchase agreement and other related agreements providing for the sale of the
Capital Securities to the Initial Purchaser; and
(vi) to negotiate the terms of and execute and deliver the
Registration Rights Agreement.
Section 4.2 Compensation, Indemnification and Expenses of the
Trustee.
Pursuant to Sections 607 and 1009 of the Indenture, the Sponsor,
in its capacity as Debenture Issuer, agrees:
(i) to pay to the Trustees from time to time such compensation
as the Debenture Issuer and the Trustees shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
<PAGE> 33
(ii) except as otherwise expressly provided herein, to reimburse
the Trustees upon their request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any
provision of the Indenture (including the compensation and the expenses and
disbursements of its agent and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Property Trustee and the Delaware Trustee
and their respective officers, directors, employees and authorized agents
for, and to hold each of them harmless against, any loss, liability or
expense including taxes (other than taxes based upon, measured by or
determined by the income of any Trustee) incurred without negligence or bad
faith on the part of the Property Trustee, the Delaware Trustee or their
respective officers, directors, employees and authorized agents, as the
case may be, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending any of them against any claim or liability in
connection with the exercise or performance of any of their respective
powers or duties hereunder.
The provisions of this Section 4.2 shall survive the resignation
or removal of the Delaware Trustee or the Property Trustee or the
termination of this Declaration.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.1 Debenture Issuer's Purchase of Common Securities.
On the Closing Date the Debenture Issuer will purchase all of the
Common Securities issued by the Trust, for an amount at least equal to 3%
of the capital of the Trust, at the same time as the Capital Securities are
sold.
Section 5.2 Covenants of the Common Securities Holder.
For so long as the Capital Securities remain outstanding, the
Common Securities Holder will covenant (i) to maintain directly 100%
ownership of the Common Securities, (ii) to cause the Trust to remain a
statutory business trust and not to voluntarily dissolve, wind up,
liquidate or be terminated, except as permitted by this Declaration, (iii)
to use its commercially reasonable efforts to ensure that the Trust will
not be an investment company for purposes of the Investment Company Act and
(iv) to take no action which would be reasonably likely to cause the Trust
to be classified as an association or a publicly traded partnership taxable
as a corporation for U.S. federal income tax purposes.
<PAGE> 34
ARTICLE 6
TRUSTEES
Section 6.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(i) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(ii) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority
in Liquidation Amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities or by written consent in lieu of
such meeting; provided that (A) the Delaware Trustee, in the case of a
natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity which has its
principal place of business in the State of Delaware and otherwise meets
the requirements of applicable law; (B) at least one Regular Trustee is an
employee or officer of, or is affiliated with, the Sponsor; and (C) one
Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
Section 6.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(i) a natural person who is a resident of the State of
Delaware; or
(ii) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise meets
the requirements of applicable law,
provided that, if the Property Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements of applicable
law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
Section 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
<PAGE> 35
(i) not be an Affiliate of the Sponsor or any Person involved
in the organization or operation of the Sponsor;
(ii) not offer or provide credit or credit enhancement to the
Trust; and
(iii) be a corporation organized and doing business under the
laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or other Person permitted by the Commission to
act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate
trust owners, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject
to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then
for the purposes of this Section 6.3(a)(ii), the combined
capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 6.3(a), the Property Trustee shall
promptly resign in the manner and with the effect set forth in Section
6.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities
(as if it were the Obliger referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
(d) The Guarantee, the Indenture, the Debentures and the
Securities shall be deemed to be specifically described in this Declaration
for purposes of clause (i) of the first provision contained in Section
310(b) of the Trust Indenture Act.
Section 6.4 Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act
through one or more Authorized Officers.
<PAGE> 36
Section 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be Albert T. Potas, Thomas E.
Powell and Mary E. Tuuk, the business address of all of whom is c/o Old
Kent Financial Corporation, One Vandenberg Center, Grand Rapids, MI 49503.
Section 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be removed without
cause at any time, except if a Trust Enforcement Event has occurred and is
continuing, and may be appointed:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in Liquidation Amount of the Common
Securities voting as a class at a meeting of the Holders
of the Common Securities.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Property Trustee under Section
3.8(h) (a "Successor Property Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Property
Trustee and delivered to the Regular Trustees and the Sponsor. The Trustee
that acts as Delaware Trustee shall not be removed in accordance with
Section 6.6(a) until a successor Trustee possessing the qualifications to
act as Delaware Trustee under Sections 6.2 and 6.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and delivered to the
Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or
its successor shall have been appointed, until his death or its dissolution
or until his or its removal or resignation. Any Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument
in writing signed by the Trustee and delivered to the Sponsor and the
Trust, which resignation shall take effect upon such delivery or upon such
later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument
executed by such Successor Property Trustee and
delivered to the Trust, the Sponsor and the resigning
Property Trustee; or
<PAGE> 37
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor
and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Property Trustee, as the case may be, if the Property Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with
this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee, as the case may be, shall have been appointed and accepted
appointment as provided in this Section 6.6 within 30 days after delivery
to the Sponsor and the Trust of an instrument of resignation or removal,
the resigning or removed Property Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware Trustee,
as applicable. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(g) Upon the resignation or removal of the Property Trustee,
such Property Trustee shall be paid all amounts due and owing.
Section 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 6.1, or if the number of
Trustees is increased pursuant to Section 6.1, a vacancy shall occur. The
vacancy shall be filled with a Trustee appointed in accordance with Section
6.6.
Section 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties
of a Trustee shall not operate to annul the Trust. Whenever a vacancy in
the number of Regular Trustees shall occur, until such vacancy is filled by
the appointment of a Regular Trustee in accordance with Section 6.6, the
<PAGE> 38
Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
Section 6.9 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any natural person over the age of 21 his,
her or its power for the purpose of executing any documents contemplated in
Section 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filings.
(b) The Regular Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section 6.10 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which
either may be consolidated, or any corporation resulting from an merger,
conversion or consolidation to which the Property Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may
be, hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
ARTICLE 7
THE SECURITIES
Section 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue a
class of capital securities representing undivided beneficial ownership
interests in the assets of the Trust (the "Transfer Restricted
Securities"), a class of capital securities to be only issued in exchange
for the Transfer Restricted Securities (the "New Capital Securities," and
together with the Transfer Restricted Securities the "Capital Securities"),
and one class of common securities representing undivided beneficial
ownership interests in the assets of the Trust (the "Common Securities").
<PAGE> 39
The aggregate liquidation amount of Capital Securities and Common
Securities that may be issued by the Trust is unlimited; provided that the
Common Securities outstanding at any time must have an aggregate
liquidation amount with respect to the assets of the Trust equal to at
least 3% of the assets of the Trust; and provided further that after the
initial issuance of Capital Securities and Common Securities, the Trust may
not issue additional Capital Securities or Common Securities unless the
Trustees have received an opinion of counsel to the effect that the
issuance of such securities will not affect the Trust's status as a grantor
trust for U.S. federal income tax purposes.
(i) Capital Securities. The Capital Securities of the Trust
have a liquidation amount with respect to the assets of
the Trust of $1,000 per Capital Security. The New Capital
Security Certificates and the Transfer Restricted Capital
Certificates evidencing the Capital Securities shall be
substantially in the form of Exhibit A to the Declaration
PROVIDED, that the New Capital Security Certificate shall
not contain any of the provisions following the Trustee's
authentication, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock
exchange on which the Capital Securities are listed.
(ii) Common Securities. The Common Securities of the Trust
have a liquidation amount with respect to the assets of
the Trust of $1,000 per Common Security. The Common
Security Certificates evidencing the Common Securities
shall be substantially in the form of Exhibit B to the
Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage,
custom or practice.
(b) Payment of Distributions on, and payments of the Redemption
Price upon a redemption of, the Capital Securities and the Common
Securities, as applicable, shall be made Pro Rata based on the liquidation
amount of such Capital Securities and Common Securities; PROVIDED, HOWEVER,
that if on any date on which amounts payable on Distribution or redemption
an Indenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation
or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all
of the outstanding Capital Securities for all Distribution periods
terminating on or prior thereto, or in the case of amounts payable on
redemption the full amount of the Redemption Price for all of the
outstanding Capital Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or
payments of the Redemption Price upon a redemption of, the Capital
<PAGE> 40
Securities then due and payable. The Trust shall issue no securities or
other interests in the assets of the Trust other than the Capital
Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature
of any present or any future Regular Trustee. In case a Regular Trustee of
the Trust who shall have signed any of the Certificates shall cease to be
such Regular Trustee before the Certificates so signed shall be delivered
by the Trust, such Certificates nevertheless may be delivered as though the
person who signed such Certificates had not ceased to be such Regular
Trustee; and any Certificate may be signed on behalf of the Trust by such
persons who, at the actual date of execution of such Certificate, shall be
the Regular Trustees of the Trust, although at the date of the execution
and delivery of the Declaration any such person was not such a Regular
Trustee. Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as
may be required to comply with any law or with any rule or regulation of
any stock exchange on which Securities may be listed, or to conform to
usage.
A Certificate shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. Such
signature shall be conclusive evidence that the Certificate has been
authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee,
the Property Trustee shall authenticate the Certificates for original
issue. The aggregate number of Capital Securities outstanding at any time
shall not exceed the liquidation amount set forth in Section 7(a)(i).
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Certificates. An authenticating
agent may authenticate Certificates whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has
the same rights as the Property Trustee to deal with the Sponsor or an
Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
<PAGE> 41
(f) Every Person, by virtue of having become a Holder or a
Capital Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Declaration and the terms of the
Securities, the Guarantee, the Indenture and the Debentures.
(g) The Securities shall have no preemptive rights.
Section 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive
cumulative cash Distributions at a variable per annum rate on the stated
liquidation amount of $1,000 per Security equal to the variable per annum
rate on the Debentures calculated on the basis of the actual number of days
elapsed in a year consisting of twelve 30-day months. For any period
shorter than a full 90-day quarterly period, distributions will be computed
on the basis of the actual number of days elapsed in such 90-day quarterly
period. Subject to Section 7.1(b), Distributions shall be made on the
Capital Securities and the Common Securities on a Pro Rata basis.
Distributions on the Securities shall, from the date of original issue,
accrue and be cumulative and shall be payable quarterly only to the extent
that the Trust has funds available for the payment of such Distributions in
the Property Account. Distributions not paid on the scheduled payment date
will accumulate and compound quarterly at the rate payable on the
Debentures, to the extent permitted by applicable law, ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions. If and to the
extent that the Debenture Issuer makes a payment of interest (including
Additional Interest (as defined in the Indenture)), premium and/or
principal on the Debentures held by the Property Trustee (the amount of any
such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, to make a Pro
Rata distribution (a "Distribution") of the Payment Amount to Holders,
subject to the terms of Section 7.1(b).
(b) Distributions on the Securities will be cumulative, will
accrue from the date of initial issuance and will be payable quarterly in
arrears on the 1st day of February, May, August and November, commencing
May 1, 1997, when, as and if available for payment, by the Property
Trustee, except as otherwise described below. If Distributions are not
paid when scheduled, the accrued Distributions shall be paid to the Holders
of record of Securities as they appear on the books and records of the
Trust on the record date as determined under Section 7.2(c).
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates, which relevant record date shall be the fifteenth
day preceding the relevant payment dates. In the event that any date on
which distributions are payable on the Securities is not a Business Day,
payment of the distribution payable on such date will be made on the next
<PAGE> 42
succeeding day which is a Business Day (without any interest or other
payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
Section 7.3 Redemption of Securities; Distribution of
Debentures.
(a) Upon the repayment or redemption, in whole or in part, of
the Debentures, the proceeds from such repayment or redemption shall be
simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed for an amount
equal to the redemption price paid by the Debenture Issuer in respect of
such Debentures plus an amount equal to accrued and unpaid Distributions
thereon through the date of the redemption or such lesser amount as shall
be received by the Trust in respect of the Debentures so repaid or redeemed
(the "Redemption Price"). Holders will be given not less than 30 or more
than 60 days notice of such redemption.
(b) If, at any time, a Special Event shall occur and be
continuing, the Sponsor may elect to, unless the Debentures are redeemed,
within 120 days following the occurrence of such Special Event, subject to
the receipt of any necessary approval by the Federal Reserve, cause the
dissolution of the Trust upon not less than 30 nor more than 60 days'
notice and, after satisfaction of creditors, if any, cause the Debentures
to be distributed to the holders of the Common Securities and the Capital
Securities in liquidation of the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Capital Securities and the Common
Securities will no longer be deemed to be outstanding and (ii) certificates
representing Securities will be deemed to represent the Debentures having
an aggregate principal amount equal to the stated liquidation amount of,
and bearing accrued and unpaid distributions equal to accrued and unpaid
distributions on, such Securities until such certificates are presented to
the Sponsor or its agent for transfer or reissuance.
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4, a
Redemption/Distribution Notice shall be deemed to be given on the day such
<PAGE> 43
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect
to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Capital Securities will be redeemed
Pro Rata and the Capital Securities to be redeemed are in book-entry form,
they will be redeemed as described below. If not, the particular Capital
Securities to be redeemed shall be selected on a PRO RATA basis not more
than 60 days prior to the Redemption Date by the Property Trustee from the
outstanding Capital Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to
$1,000 or an integral multiple of $1,000 in excess thereof) of the
liquidation amount of Capital Securities of a denomination larger than
$1,000. The Property Trustee shall promptly notify the Trust registrar in
writing of the Capital Securities selected for redemption and, in the case
of any Capital Security selected for partial redemption, the liquidation
amount thereof to be redeemed. The Trust may not redeem the Securities in
part unless all accrued and unpaid Distributions have been paid in full on
all Securities then outstanding plus accrued but unpaid interest to the
date of redemption. For all purposes of this Declaration, unless the
context otherwise requires, all provisions relating to the redemption of
Capital Securities shall relate, in the case of any Capital Security
redeemed or to be redeemed only in part, to the portion of the aggregate
liquidation amount of Capital Securities which has been or is to be
redeemed.
(c) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 7.4 (which notice will
be irrevocable), then (i) by 12:00 noon, New York City time, one day prior
to the redemption date, the Property Trustee, upon receipt of such funds,
will deposit irrevocably with the DTC (in the case of book-entry form
Capital Securities) or its nominee (or successor Clearing Agency or its
nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Capital Securities and will give the DTC irrevocable
instructions and authority to pay the Redemption Price to the Holders of
the Capital Securities, and (ii) with respect to Capital Securities and
Common Securities issued in certificated form, the Trust, to the extent
funds are available, will irrevocably deposit with the paying agent for
such Securities funds sufficient to pay the applicable Redemption Price and
will give the paying agent irrevocable instructions and authority to pay
the Redemption Price to the holders thereof upon surrender of their
certificates evidencing such Securities. If a Redemption/Distribution
Notice shall have been given and funds deposited as required, then
<PAGE> 44
immediately prior to the close of business on the date of such deposit,
distributions will cease to accrue on the Securities so called for
redemption and all rights of Holders of such Securities will cease, except
the right of the Holders of such Securities to receive the Redemption
Price, but without interest on such Redemption Price. If any date fixed
for redemption of Securities is not a Business Day, then payment of the
Redemption Price 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 falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on
such date fixed for redemption. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to
the Guarantee, Distributions on such Securities will continue to accrue at
the then applicable rate from the original redemption date to the actual
date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption
Price. For these purposes, the applicable Redemption Price shall not
include Distributions which are being paid to Holders who were Holders on a
relevant record date. Upon satisfaction of the foregoing conditions, then
immediately prior to the close of business on the date of such deposit or
payment, all rights of Holders of such Debentures so called for redemption
will cease, except the right of the Holders to receive the Redemption
Price, but without interest on such Redemption Price, and from and after
the date fixed for redemption, such Debentures will not accrue
distributions or bear interest.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer or exchange of any
Securities that have been called for redemption, except in the case of any
Securities being redeemed in part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws), the Debenture Issuer or
its subsidiaries may at any time and from time to time purchase outstanding
Capital Securities by tender, in the open market or by private agreement.
Section 7.5 Voting Rights of Capital Securities.
(a) Except as provided under this Article VII and as otherwise
required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Capital Securities will have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining
a tax opinion in certain circumstances set forth in Section 7.5(d) below,
the Holders of a Majority in Liquidation Amount of the Capital Securities
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or to direct
<PAGE> 45
the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee,
as Holder of the Debentures, to (i) exercise the remedies available to it
under the Indenture as a Holder of the Debentures or (ii) consent to any
amendment or modification of the Indenture or the Debentures where such
consent shall be required; PROVIDED, HOWEVER, that where a consent or
action under the Indenture would require the consent or act of the Holders
of more than a majority in aggregate principal amount of Debentures
affected thereby, only the Holders of the percentage of the aggregate
stated liquidation amount of the Capital Securities which is at least equal
to the percentage required under the Indenture may direct the Property
Trustee to give such consent to take such action.
(c) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of record of Capital Securities has made a
written request, such Holder of record of Capital Securities may, to the
extent permitted by applicable law, institute a legal proceeding directly
against the Debenture Issuer to enforce the Property Trustee's rights under
the Indenture without first instituting any legal proceeding against the
Property Trustee or any other person or entity. Notwithstanding the
foregoing, if a Trust Enforcement Event has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to make
any required payment when due under the Indenture, then a Holder of Capital
Securities may directly institute a proceeding against the Debenture Issuer
for enforcement of such payment under the Indenture.
(d) The Property Trustee shall notify all Holders of the Capital
Securities of any notice of any Indenture Event of Default received from
the Debenture Issuer with respect to the Debentures. Such notice shall
state that such Indenture Event of Default also constitutes a Trust
Enforcement Event. Except with respect to directing the time, method, and
place of conducting a proceeding for a remedy, the Property Trustee shall
be under no obligation to take any of the actions described in clause
7.5(b)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that as a result of such
action, the Trust will not fail to be classified as a grantor trust for
U.S. federal income tax purposes and each Holder will be treated as owning
an undivided beneficial ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the
Holder of the Debentures, is required under the Indenture with respect to
any amendment or modification of the Indenture, the Property Trustee shall
request the direction of the Holders of the Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by a Majority in Liquidation Amount of the
Securities voting together as a single class; PROVIDED, HOWEVER, that where
a consent under the Indenture would require the consent of the Holders of
more than a majority in aggregate principal amount of the Debentures, the
Property Trustee may only give such consent at the direction of the Holders
of at least the same proportion in aggregate stated liquidation amount of
<PAGE> 46
the Securities. The Property Trustee shall not take any such action in
accordance with the directions of the Holders of the Securities unless the
Property Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not be classified as other than
a grantor trust for U.S. federal income tax purposes and each Holder will
be treated as owning an undivided beneficial ownership interest in the
Debentures.
(f) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust
Enforcement Event.
(g) Any required approval or direction of Holders of Capital
Securities may be given at a separate meeting of Holders of Capital
Securities convened for such purpose, at a meeting of all of the Holders of
Securities or pursuant to written consent. The Regular Trustees will cause
a notice of any meeting at which Holders of Capital Securities are entitled
to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Capital
Securities. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which
such action is to be taken; (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or
of such matter upon which written consent is sought; and (iii) instructions
for the delivery of proxies or consents.
(h) No vote or consent of the Holders of Capital Securities will
be required for the Trust to redeem and cancel Capital Securities or
distribute Debentures in accordance with the Declaration.
(i) Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Securities that are owned at such time by the Debenture Issuer
or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Debenture Issuer, shall not be entitled
to vote or consent and shall, for purposes of such vote or consent, be
treated as if such Securities were not outstanding, PROVIDED, HOWEVER that
persons otherwise eligible to vote to whom the Debenture Issuer or any of
its subsidiaries have pledged Capital Securities may vote or consent with
respect to such pledged Capital Securities under any of the circumstances
described herein.
(j) Holders of the Capital Securities will have no rights to
appoint or remove the Trustees, who may be appointed, removed or replaced
solely by the Debenture Issuer, as the Holder of all of the Common
Securities.
<PAGE> 47
Section 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(ii) or this Section 7.6
or as otherwise required by the Business Trust Act, the Trust Indenture Act
or other applicable law or provided by the Declaration, the Holders of the
Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article 6 of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after all
Trust Enforcement Events with respect to the Capital Securities have been
cured, waived, or otherwise eliminated and subject to the requirement of
the Property Trustee obtaining a tax opinion in certain circumstances set
forth in this paragraph (c), the Holders of a Majority in liquidation
amount of the Common Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee, or direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to
direct the Property Trustee, as Holder of the Debentures, to (i) exercise
the remedies available to it under the Indenture as a Holder of the
Debentures, or (ii) consent to any amendment or modification of the
Indenture or the Debentures where such consent shall be required; PROVIDED,
HOWEVER, that where a consent or action under the Indenture would require
the consent or act of the Holders of more than a majority in aggregate
principal amount of Debentures affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the Common
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under
no obligation to take any of the actions described in clause 7.6(c)(i) and
(ii) above unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action, for
U.S. federal income tax purposes the Trust will not fail to be classified
as a grantor trust and each Holder will be treated as owning an undivided
beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of record of Common Securities has made a
written request, such Holder of record of Common Securities may, to the
extent permitted by applicable law, directly institute a legal proceeding
directly against the Debenture Issuer, as sponsor of the Trust, to enforce
the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
person or entity.
<PAGE> 48
(e) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust
Enforcement Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common
Securities convened for such purpose, at a meeting of all of the Holders of
Securities or pursuant to written consent. The Regular Trustees will cause
a notice of any meeting at which Holders of Common Securities are entitled
to vote, or of any matter on which action by written consent of such
Holders is to be taken, to be mailed to each Holder of Common Securities.
Each such notice will include a statement setting forth the following
information: (i) the date of such meeting or the date by which such action
is to be taken; (ii) a description of any resolution proposed for adoption
at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought; and (iii) instructions for the
delivery of proxies or consents.
(g) No vote or consent of the Holders of Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute Debentures in accordance with the Declaration and the terms of
the Securities.
Section 7.7 Paying Agent.
In the event that any Capital Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of
New York, State of New York, an office or agency where the Capital
Securities may be presented for payment ("Paying Agent"). The Trust may
appoint the paying agent and may appoint one or more additional paying
agents in such other locations as it shall determine. The term "Paying
Agent" includes any additional paying agent. The Trust may change any
Paying Agent without prior notice to the Holders. The Trust shall notify
the Property Trustee of the name and address of any Paying Agent not a
party to this Declaration. If the Trust fails to appoint or maintain
another entity as Paying Agent, the Property Trustee shall act as such.
The Trust or any of its Affiliates may act as Paying Agent. Bankers Trust
Company shall initially act as Paying Agent for the Capital Securities and
the Common Securities. In the event the Property Trustee shall no longer
be the Paying Agent, the Trust shall appoint a successor (which shall be a
bank or trust company acceptable to the Debenture Issuer) to act as Paying
Agent. The Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Property Trustee and the Debenture Issuer.
Section 7.8 Transfer of Securities.
(a) The Trust shall cause to be kept at the Corporate Trust
Office of the Property Trustee a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
<PAGE> 49
Trust shall provide for the registration of Capital Securities and of
transfers of Capital Securities. The Property Trustee is hereby appointed
"Security Registrar" for the purpose of registering Capital Securities and
transfers of Capital Securities as herein provided.
(b) Upon surrender for registration of transfer of any Security
at an office or agency of the Trust designated for such purpose, the Trust
shall execute and the Property Trustee shall, upon a Company Order for the
authentication, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations and of a like aggregate principal amount.
(c) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
the Trust shall execute, and the Property Trustee shall, upon a Company
Order for the authentication, authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Trust duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(e) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Trust may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities.
(f) The Trust shall not be required (i) to issue, register the
transfer of or exchange any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 7.4
and ending at the close of business on the day of such mailing or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates.
If: (i) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate and
(ii) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them, the Sponsor and
the Trust harmless, then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, any Regular Trustee on
<PAGE> 50
behalf of the Trust shall execute and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any
new Certificate under this Section 7.9, the Regular Trustees may require
the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 7.10 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole
holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
Section 7.11 Global Securities.
If the Trust shall establish that the Capital Securities are to
be issued in the form of one or more Global Securities, then a Regular
Trustee on behalf of the Trust shall execute and the Property Trustee
shall, upon receipt of a Company Order for the authentication, authenticate
and deliver one or more Global Securities that (i) shall represent and
shall be denominated in an amount equal to the aggregate liquidation amount
of all of the Capital Securities to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of
the Depositary for such Global Security or Capital Securities or the
nominee of such Depositary and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions.
Global Securities shall bear a legend substantially to the following
effect:
"This Capital Security is a Global Security within the meaning of
the Declaration hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. Notwithstanding the provisions of
Section 7.8 of the Declaration, unless and until it is exchanged in whole
or in part for Capital Securities in definitive registered form, a Global
Security representing all or a part of the Capital Securities may not be
transferred in the manner provided in Section 7.8 of the Declaration except
as a whole by the Depositary to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. Every Capital
Security delivered upon registration or transfer of, or in exchange for, or
<PAGE> 51
in lieu of, this Global Security shall be a Global Security subject to the
foregoing, except in the limited circumstances described above. Unless
this certificate is presented by an authorized representative of DTC to the
Trust or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is to be made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein."
Definitive Capital Securities issued in exchange for all or a
part of a Global Security pursuant to this Section 7.11 shall be registered
in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such definitive Capital
Securities to the persons in whose names such definitive Capital Securities
are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or canceled, such Global Securities shall be, upon
receipt thereof, canceled by the Property Trustee in accordance with
standing procedures and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in
Global Securities is exchanged for definitive Capital Securities, redeemed,
canceled or transferred to a transferee who receives definitive Capital
Securities therefor or any definitive Capital Security is exchanged or
transferred for part of Global Securities, the principal amount of such
Global Securities shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be reduced
or increased, as the case may be, and an endorsement shall be made on such
Global Securities by the Property Trustee or the Custodian, at the
direction of the Property Trustee, to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes,
including the making of payments due on the Capital Securities, deal with
the Depositary as the authorized representative of the Holders for the
purposes of exercising the rights of Holders hereunder. The rights of the
owner of any beneficial interest in a Global Security shall be limited to
those established by law and agreements between such owners and depository
participants or Euroclear and Cedel; PROVIDED that no such agreement shall
give any rights to any person against the Trust or the Property Trustee
without the written consent of the parties so affected. Multiple requests
and directions from and votes of the Depositary as holder of Capital
Securities in global form with respect to any particular matter shall not
be deemed inconsistent to the extent they do not represent an amount of
Capital Securities in excess of those held in the name of the Depositary or
its nominee.
<PAGE> 52
If at any time the Depositary for any Capital Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Capital Securities
or if at any time the Depositary for such Capital Securities shall no
longer be eligible under this Section 7.11, the Trust shall appoint a
successor Depositary with respect to such Capital Securities. If a
successor Depositary for such Capital Securities is not appointed by the
Trust within 90 days after the Trust receives such notice or becomes aware
of such ineligibility, the Trust's election that such Capital Securities be
represented by one or more Global Securities shall no longer be effective
and a Regular Trustee on behalf of the Trust shall execute and the Property
Trustee shall authenticate, upon a receipt of a Company Order for the
authentication, and deliver Capital Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount
equal to the principal amount of the Global Security or Capital Securities
representing such Capital Securities in exchange for such Global Security
or Capital Securities.
The Trust may at any time and in its sole discretion determine
that the Capital Securities issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Capital
Securities. In such event a Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, Capital
Securities in definitive registered form, in any authorized denominations,
in an aggregate liquidation amount equal to the principal amount of the
Global Security or Capital Securities representing such Capital Securities,
in exchange for such Global Security or Capital Securities.
Notwithstanding any other provisions of this Declaration (other
than the provisions set forth in Section 7.13(a)), Global Securities may
not be transferred as a whole except 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 or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in Global Security may be
transferred or exchanged for definitive Capital Securities and definitive
Capital Securities may be transferred or exchange for Global Securities in
accordance with rules of the Depositary and the provisions of Section 7.13.
Any Capital Security in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Declaration as may be required by
the Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Capital Securities to be tradeable on the
PORTAL Market or as may be required for the Capital Securities to be
tradeable on any other market developed for trading of securities pursuant
to Rule 144A or required to comply with any applicable law or any
regulation thereunder or with Regulation S or with the rules and
regulations of any securities exchange upon which the Capital Securities
<PAGE> 53
may be listed or traded or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any
particular Capital Securities are subject.
Section 7.12 Restrictive Legend.
(a) Each Global Security and definitive Capital Security that
constitutes a Restricted Security shall bear the following legend (the
"Private Placement Legend") on the face thereof until three years after the
later of the date of original issue and the last date on which the Sponsor
or any affiliate of the Sponsor was the owner of such Capital Securities
(or any predecessor thereto) (the "Resale Restriction Termination Date"),
unless otherwise agreed by the Trust and the Holder thereof:
"THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS
CAPITAL SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES
AND AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER
THIS CAPITAL SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE
YEARS AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON
WHICH THE TRUST OR ANY AFFILIATE OF THE TRUST WAS THE OWNER OF SUCH
RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE TRUST,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS CAPITAL
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS CAPITAL SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II)
ABOVE, ANY OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING
CLAUSES (II)(D) AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS
CAPITAL SECURITY AND THE PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR
OTHER INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE."
<PAGE> 54
Any Capital Security (or security issued in exchange or
substitution therefor) as to which such restrictions on transfer shall have
expired in accordance with their terms may, upon satisfaction of the
requirements of Section 7.12(b) and surrender of such Capital Security for
exchange to the Capital Security Registrar in accordance with the
provisions of this Section 7.12(a), be exchanged for a new Capital Security
or Capital Securities, of like tenor and aggregate liquidation amount,
which shall not bear the restrictive legend required by this Section
7.12(a).
Upon any sale or transfer of any Restricted Security (including
any interest in a Global Security) (i) that is effected pursuant to an
effective registration statement under the Securities Act or (ii) in
connection with which the Property Trustee receives certificates and other
information (including an opinion of counsel, if requested) reasonably
acceptable to the Sponsor to the effect that such security will no longer
be subject to the resale restrictions under federal and state securities
laws, then (A) in the case of a Restricted Security in definitive form, the
Capital Security registrar or co-registrar shall permit the holder thereof
to exchange such Restricted Security for a security that does not bear the
legend set forth in Section 7.12(a), and shall rescind any such
restrictions on transfer and (B) in the case of Restricted Securities
represented by a Global Security, such Capital Security shall no longer be
subject to the restrictions contained in the legend set forth in Section
7.12(a) (but still subject to the other provisions hereof). In addition,
any Capital Security (or security issued in exchange or substitution
therefor) as to which the restrictions on transfer described in the legend
set forth in Section 7.12(a) have expired by their terms, may, upon
surrender thereof (in accordance with the terms of this Indenture) together
with such certifications and other information (including an opinion of
counsel having substantial experience in practice under the Securities Act
and otherwise reasonably acceptable to the Sponsor, addressed to the
Sponsor and the Property Trustee and in a form acceptable to the Sponsor,
to the effect that the transfer of such Restricted Security has been made
in compliance with Rule 144 or such successor provision) acceptable to the
Sponsor and the Property Trustee as either of them may reasonably require,
be exchanged for a new Capital Security or Capital Securities of like tenor
and aggregate liquidation amount, which shall not bear the restrictive
legends set forth in Section 7.12(a).
Section 7.13 Special Transfer Provisions.
(a) At any time at the request of the beneficial holder of a
Capital Security in global form, such beneficial holder shall be entitled
to obtain a definitive Capital Security upon written request to the
Property Trustee in accordance with the standing instructions and
procedures existing between the Depositary and the Property Trustee for the
issuance thereof. Any transfer of a beneficial interest in a Capital
Security in global form which cannot be effected through book-entry
settlement must be effected by the delivery to the transferee (or its
<PAGE> 55
nominee) of a definitive Capital Security or Securities registered in the
name of the transferee (or its nominee) on the books maintained by the
Security Registrar. With respect to any such transfer, the Property
Trustee will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Property Trustee, the
aggregate liquidation amount of the Global Security to be reduced and,
following such reduction, the Property Trustee will cause Definitive
Capital Securities in the appropriate aggregate liquidation amount in the
name of such transferee (or its nominee) and bearing such restrictive
legends as may be required by this Declaration to be delivered.
(b) So long as the Capital Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of
a definitive Capital Security to a QIB in accordance with Rule 144A, unless
otherwise requested by the transferor, and upon receipt of the definitive
Capital Security being so transferred, together with a certification from
the transferor that the transferor reasonably believes the transferee is a
QIB, the Property Trustee shall make an endorsement on the Restricted
Global Security to reflect an increase in the aggregate liquidation amount
of the Restricted Global Security, and the Property Trustee shall cancel
such definitive Capital Security and cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Property Trustees, the aggregate liquidation amount of Capital Securities
represented by the Restricted Global Security to be increased accordingly.
Notwithstanding anything to the contrary, the Property Trustee may
conclusively rely upon the completed certificate set forth in the
certificate evidencing the Capital Securities.
(c) So long as the Capital Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of
a definitive Capital Security in accordance with Regulation S, if requested
by the transferor, and upon receipt of the definitive Capital Security or
Capital Securities being so transferred, together with a certification,
upon which the Trustee may conclusively rely, from the transferor that the
transfer was made in accordance with Rule 903 or 904 of Regulation S or
Rule 144 under the Securities Act, the Property Trustee shall make or
direct the Custodian to make, an endorsement on the Regulation S Global
Security to reflect an increase in the aggregate liquidation amount of the
Capital Securities represented by the Regulation S Global Security, the
Property Trustee shall cancel such definitive Capital Security or Capital
Securities and cause, or direct the Custodian to cause, in accordance with
the standing instructions and procedures existing between the Depositary
and the Property Trustee, the aggregate liquidation amount of Capital
Securities represented by the Regulation S Global Security to be increased
accordingly.
(d) If a holder of a beneficial interest in the Restricted
Global Security wishes at any time to exchange its interest in the
Restricted Global Security for an interest in the Regulation S Global
Security, or to transfer its interest in the Restricted Global Security to
<PAGE> 56
a person who wishes to take delivery thereof in the form of an interest in
the Regulation S Global Security, such holder may, subject to the rules and
procedures of the Depositary and to the requirements set forth in the
following sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest in the
Regulation S Global Security. Upon receipt by the Property Trustee of (i)
instructions given in accordance with the Depositary's procedures from or
on behalf of a holder of a beneficial interest in the Restricted Global
Security, directing the Property Trustee (via DWAC), as transfer agent, to
credit or cause to be credited a beneficial interest in the Regulation S
Global Security in an amount equal to the beneficial interest in the
Restricted Global Security to be exchanged or transferred, (ii) a written
order given in accordance with the Depositary's procedures containing
information regarding the Euroclear or Cedel account to be credited with
such increase and the name of such account and (iii) a certificate given by
the holder of such beneficial interest stating that the exchange or
transfer of such interest has been made pursuant to and in accordance with
Rule 903 or Rule 904 of Regulation S or Rule 144 under the Securities Act,
the Property Trustee, as transfer agent, shall promptly deliver appropriate
instructions to the Depositary (via DWAC), its nominee, or the custodian
for the Depositary, as the case may be, to reduce or reflect on its records
a reduction of the Restricted Global Security by the aggregate liquidation
amount of the beneficial interest in such Restricted Global Security to be
so exchanged or transferred from the relevant participant, and the Property
Trustee, as transfer agent, shall promptly deliver appropriate instructions
(via DWAC) to the Depositary, its nominee, or the custodian for the
Depositary, as the case may be, concurrently with such reduction, to
increase or reflect on its records an increase of the liquidation amount of
such Regulation S Global Security by the aggregate liquidation amount of
the beneficial interest in such Restricted Global Security to be so
exchanged or transferred, and to credit or cause to be credited to the
account of the person specified in such instructions (who may be Morgan
Guaranty Trust Company of New York, Brussels office, as operator of
Euroclear or Cedel or another agent member of Euroclear or Cedel, or both,
as the case may be, acting for and on behalf of them) a beneficial interest
in such Regulation S Global Security equal to the reduction in the
liquidation amount of such Restricted Global Security. Notwithstanding
anything to the contrary, the Property Trustee may conclusively rely upon
the completed certificate set forth in the certificate evidencing the
Capital Securities.
(e) If a holder of a beneficial interest in the Regulation S
Global Security wishes at any time to exchange its interest in the
Regulation S Global Security for an interest in the Restricted Global
Security, or to transfer its interest in the Regulation S Global Security
to a person who wishes to take delivery thereof in the form of an interest
in the Restricted Global Security, such holder may, subject to the rules
and procedures of Euroclear or Cedel and the Depositary, as the case may
be, and to the requirements set forth in the following sentence, exchange
or cause the exchange or transfer or cause the transfer of such interest
<PAGE> 57
for an equivalent beneficial interest in such Restricted Global Security.
Upon receipt by the Property Trustee, as transfer agent of (i) instructions
given in accordance with the procedures of Euroclear or Cedel and the
Depositary, as the case may be, from or on behalf of a beneficial owner of
an interest in the Regulation S Global Security directing the Property
Trustee, as transfer agent, to credit or cause to be credited a beneficial
interest in the Restricted Global Security in an amount equal to the
beneficial interest in the Regulation S Global Security to be exchanged or
transferred, (ii) a written order given in accordance with the procedures
of Euroclear or Cedel and the Depositary, as the case may be, containing
information regarding the account with the Depositary to be credited with
such increase and the name of such account and (iii) prior to the
expiration of the Restricted Period, a certificate given by the holder of
such beneficial interest and stating that the person transferring such
interest in such Regulation S Global Security reasonably believes that the
person acquiring such interest in the Restricted Global Security is a QIB
and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state
of the United States or any other jurisdiction, the Property Trustee, as
transfer agent, shall promptly deliver (via DWAC) appropriate instructions
to the Depositary, its nominee, or the custodian for the Depositary, as the
case may be, to reduce or reflect on its records a reduction of the
Regulation S Global Security by the aggregate liquidation amount of the
beneficial interest in such Regulation S Global Security to be exchanged or
transferred, and the Property Trustee, as transfer agent, shall promptly
deliver (via DWAC) appropriate instructions to the Depositary, its nominee,
or the custodian for the Depositary, as the case may be, concurrently with
such reduction, to increase or reflect on its records an increase of the
liquidation amount of the Restricted Global Security by the aggregate
liquidation amount of the beneficial interest in the Regulation S Global
Security to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions a
beneficial interest in the Restricted Global Security equal to the
reduction in the liquidation amount of the Regulation S Global Security.
After the expiration of the Restricted Period, the certification
requirement set forth in clause (iii) of the second sentence of this
Section 7.13(e) will no longer apply to such exchanges and transfers.
Notwithstanding anything to the contrary, the Property Trustee may
conclusively rely upon the completed certificate set forth in the
certificate evidencing the Capital Securities.
(f) Any beneficial interest in one of the Global Securities that
is transferred to a person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in
such Global Security and become an interest in the other Global Security
and, accordingly, will thereafter be subject to all transfer restrictions
and other procedures applicable to beneficial interests in such other
Global Security for as long as it remains such an interest.
<PAGE> 58
(g) Prior to or on the 40th day after the later of the
commencement of the offering of the Capital Securities and the Closing Date
(the "Restricted Period"), beneficial interests in a Regulation S Global
Security may only be held through Morgan Guaranty Trust Company of New
York, Brussels office, as operator of Euroclear or Cedel or another agent
member of Euroclear and Cedel acting for and on behalf of them, unless
delivery is made through the Restricted Global Security in accordance with
the certification requirements hereof. During the Restricted Period,
interests in the Regulation S Global Security may be exchanged for
interests in the Restricted Global Security or for definitive Securities
only in accordance with the certification requirements described above.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the consent of the
Holder of at least a Majority in Liquidation Amount of the
Securities to the filing of a certificate of cancellation
with respect to the Trust or the revocation of the
Sponsor's charter and the expiration of 90 days after the
date of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) the time when all of the Securities shall have matured or
been called for redemption and the amounts then due shall
have been paid to the Holders in accordance with the terms
of the Securities;
(v) upon the election of the Sponsor, following the occurrence
and continuation of a Special Event and subject to the
receipt of any necessary approvals by the Federal Reserve,
pursuant to which the Trust shall have been dissolved in
accordance with the terms of the Securities, and all of
the Debentures shall have been distributed to the Holders
of Securities in exchange for all of the Securities; or
<PAGE> 59
(vi) an election by a Majority in Liquidation Amount of the
Common Securities provided such action is taken before the
issuance of any Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up of the
Trust, the Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article 10 shall survive
the termination of the Trust.
Section 8.2 Liquidation Distribution Upon Termination and
Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a "Liquidation"),
the Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
holders of the Capital Securities and Common Securities their Pro Rata
interest in the Junior Subordinated Debentures, unless such distribution is
determined by the Property Trustee not to be practicable, in which event
such holders will be entitled to receive out of the assets of the Trust
available for distribution to holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to,
in the case of holders of Capital Securities, the aggregate of the
liquidation amount plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution").
(b) If, upon any such Liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis. The Holders of the Common Securities will be entitled to
receive distributions upon any such Liquidation Pro Rata with the Holders
of the Capital Securities except that if an Indenture Event of Default has
occurred and is continuing, the Capital Securities shall have a preference
over the Common Securities with regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
<PAGE> 60
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be
made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any Holder
of Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Holder of the Common Securities shall be liable for all
of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Capital Securities shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by
this Declaration or by law, except that an Indemnified Person shall be
liable or any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Securities
might properly be paid.
Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
<PAGE> 61
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the Trust
or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give
any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard
and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
Section 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
<PAGE> 62
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorney fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the Debenture Issuer
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Debenture
Issuer Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Debenture Issuer Indemnified
Person shall have been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall deem
proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Debenture Issuer Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Debenture Issuer Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
<PAGE> 63
paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
Debenture Issuer Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (A) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (B) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion or (C) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Debenture
Issuer Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Debenture
Issuer Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in instances
where the Regular Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person deliberately breached his duty
to the Trust or its Common or Capital Security Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 9.4(a)
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
9.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Debenture Issuer Indemnified Person who serves in such
capacity at any time while this Section 9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall not affect any rights or
obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Debenture Issuer
Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
<PAGE> 64
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 9.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 9.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Debenture Issuer Indemnified Person and shall inure to the
benefit of the heirs, executors and administrators of such a person. The
obligation to indemnify as set forth in this Section 9.4(a) shall survive
the satisfaction and discharge of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) an Affiliate of the Property
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Property Trustee and the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in
this Section 9.4(a) shall survive the satisfaction and discharge of this
Declaration.
Section 9.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others,
similar or dissimilar to the activities of the Trust, and the Trust and the
Holders of Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with
the activities of the Trust, shall not be deemed wrongful or improper. No
Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee
shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or
other opportunity. Any Covered Person, the Delaware Trustee and the
Property Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
<PAGE> 65
depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
Section 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted
accounting principles. The Trust shall use the accrual method of
accounting for U.S. federal income tax purposes. The books of account and
the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such Fiscal
Year, and the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual U.S. federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any
right under the Code to deliver any such statement at a later date, the
Regular Trustees shall endeavor to deliver all such statements within 30
days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual U.S. federal income
tax return, on a Form 1041 or such other form required by U.S. federal
income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or
local taxing authority.
<PAGE> 66
Section 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments
of funds in respect of the Debentures held by the Property Trustee shall be
made directly to the Property Account and no other funds of the Trust shall
be deposited in the Property Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Account.
Section 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Trust to assist it in determining
the extent of, and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions and,
unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and
pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event
of any claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to be withheld
was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by
a written instrument approved and executed by (i) the Regular Trustees (or,
if there are more than two Regular Trustees, a majority of the Regular
Trustees) and (ii) by the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee;
and (iii) by the Delaware Trustee if the amendment affects the rights,
powers, duties, obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
<PAGE> 67
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that
such amendment is permitted by, and conforms to, the terms
of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee
shall have first received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including
the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than as a
grantor trust for U.S. federal income tax purposes;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the
Investment Company Act.
(c) At such time after the Trust has issued any Securities that
remain outstanding, if amendment would (i) adversely affect the powers,
preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise or (ii) result in the
dissolution, winding-up or termination of the Trust other than pursuant to
the terms of this Declaration or, (iii) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of
any distribution required to be made in respect of the Securities as of a
specified date or (iv) restrict the right of a Holder of Securities to
institute suit for the enforcement of any such payment on or after such
date, then the Holders of the Securities voting together as a single class
will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of at least a
Majority in Liquidation Amount of the Securities affected thereby; PROVIDED
<PAGE> 68
that, if any amendment or proposal referred to in clause (i) above would
adversely affect only the Capital Securities or the Common Securities, then
only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with
the approval of a Majority in Liquidation Amount of such class of
Securities; PROVIDED, HOWEVER, in the case of clause (iii) or (iv), the
approval of each Holder of such Securities shall be required.
(d) Section 7.8 and this Section 11.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Article 6 to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a
Majority in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) to cure any ambiguity, correct or supplement any
provisions in this Declaration that may be inconsistent
with any other provision, or to make any other provisions
with respect to matters or questions arising under this
Declaration that shall not be inconsistent with the other
provisions of this Declaration;
(ii) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure
that the Trust will be classified as a grantor trust and
will not be taxable as a corporation for U.S. federal
income tax purposes at all times that any Securities are
outstanding or to ensure that the Trust will not be
required to register as an "investment company" under the
Investment Company Act; or
(iii) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the rights, preferences or privileges of the
Holders.
provided, however, that such action shall not adversely affect in any
material respect the interests of any Holder of Capital Securities or
Common Securities, and any amendments of this Declaration shall become
effective when notice thereof is given to the Holders of Capital Securities
and Common Securities.
<PAGE> 69
(h) The issuance of a Trustees' Authorization Certificate by the
Regular Trustees for purposes of establishing the terms and form of the
Securities as contemplated by Section 8.1 shall not be deemed an amendment
of this Declaration subject to the provisions of this Section 11.1.
(i) Notwithstanding any provision of this Declaration, the right
of any Holder of Capital Securities to receive payment of Distributions and
other payments upon redemption or otherwise, on or after their respective
due dates, or to institute a suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected
without the consent of such Holder. For the protection and enforcement of
the foregoing provision, each and every Holder of Capital Securities shall
be entitled to such relief as can be given either at law or equity.
Section 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of
the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange
on which the Capital Securities are listed or admitted for trading, if any.
The Regular Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of
such class of Securities. Such direction shall be given by delivering to
the Regular Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call
a meeting and only those Securities specified shall be counted for purposes
of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at
least 7 days and not more than 60 days before the date of
such meeting. Whenever a vote, consent or approval of the
Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which
the Capital Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting
of the Holders of Securities. Any action that may be
taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting
<PAGE> 70
forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all
Holders of Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holders for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities executing such proxy.
Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person
that the Regular Trustees may designate; and
(iv) consistent with the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or
the listing rules of any stock exchange on which the
Capital Securities are then listed for trading, otherwise
provides, the Regular Trustees, in their sole discretion,
shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to
be voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
<PAGE> 71
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property
Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Property Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Property Trustee's acceptance
of its appointment as Property Trustee that:
(a) the Property Trustee is a corporation or bank duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a); and
(c) the execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee. This Declaration has
been duly executed and delivered by the Property Trustee, and it
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
Section 12.2 Representations and Warranties of the Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Delaware Trustee's acceptance
of its appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2 and has the power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration
and, if it is not a natural person, is duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization; and
<PAGE> 72
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law).
ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Property Trustee, the Delaware Trustee and
the Holders of the Securities):
c/o Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, MI 49503
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice
of to the Regular Trustees, the Property Trustee and the Holders of the
Securities):
(c) if given to the Property Trustee, at its Corporate Trust
Office (or such other address as the Property Trustee may give notice of to
the Regular Trustees, the Delaware Trustee and the Holders of the
Securities).
(d) if given to the Sponsor, at the mailing address set forth
below (or such other address as the Sponsor may give notice of to the
Property Trustee, the Delaware Trustee and the Trust):
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, MI 49503
Attn: Corporate Secretary
<PAGE> 73
(e) if given to any Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed or mailed by first class mail,
postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
Section 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware without regard to the principles of conflict of laws.
Section 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for U.S. federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted in a manner consistent
with such classification.
Section 13.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to
be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
Section 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to
persons or circumstances other than those to which it is held invalid,
shall not be affected thereby.
Section 13.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature
<PAGE> 74
pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
Section 13.8 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Declaration or in any suit against any Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorney's fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 13.8 does not
apply to a suit by a Trustee, a suit by a Holder to enforce its right to
payment or a suit by Holders of more than 10% in Liquidation Amount of the
then outstanding Securities.
<PAGE> 75
IN WITNESS WHEREOF, the undersigned have caused these presents to
be executed as of the day and year first above written.
OLD KENT FINANCIAL CORPORATION,
as Sponsor and Common Securities
Holder
By:_____________________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee
By:_____________________________________
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee
By:_____________________________________
Name:
Title:
ALBERT T. POTAS, as Regular Trustee
________________________________________
THOMAS E. POWELL, as Regular Trustee
________________________________________
MARY E. TUUK, as Regular Trustee
________________________________________
<PAGE>
EXHIBIT A
This Capital Security is a Global Certificate within the meaning
of the Declaration hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depository"), or
a nominee of the Depository. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Capital Security (other than a
transfer of this Capital Security as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in limited
circumstances.
Unless this Capital Security Certificate is presented by an
authorized representative of the Depository to Old Kent Capital Trust I or
its agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of Cede & Co.
or such other name as registered by an authorized representative of the
Depository (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depository),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.
CERTIFICATE NO. ___ NUMBER OF CAPITAL SECURITIES: _______
CUSIP NO. ___________
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
OLD KENT CAPITAL TRUST I
FLOATING RATE SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OLD KENT CAPITAL TRUST I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co. (the "Holder") is the registered owner of _______ capital securities
of the Trust representing undivided beneficial ownership interests in the
assets of the Trust designated the Floating Rate Subordinated Capital
Income Securities (liquidation amount $1,000 per Capital Security) (the
"Capital Securities"). The Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer as provided in the Declaration (as defined below). The
designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Capital Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of January 31, 1997
<PAGE> 2
(as the same may be amended from time to time (the "Declaration"), among
Old Kent Financial Corporation, as Sponsor (the "Company"), Albert T.
Potas, Thomas E. Powell and Mary E. Tuuk, as Regular Trustees, Bankers
Trust Company, as Property Trustee, and Bankers Trust (Delaware), as
Delaware Trustee. Capitalized terms used herein but not defined shall have
the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. The Sponsor
will provide a copy of the Declaration, the Guarantee and the Indenture to
a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for U.S. federal
income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided indirect beneficial ownership interests
in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:_____________________________________
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:_____________________________________
Authorized Officer
<PAGE> 3
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
three years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such
Capital Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date"), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the
transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box
(3), (4) or (6) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in its sole discretion,
such written legal opinions, certifications (including an investment letter
in the case of box (3)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
<PAGE> 4
than the Holder hereof unless and until the conditions to any such transfer
of registration set forth herein and in Section 315 of the Indenture shall
have been satisfied.
Dated: __________________ Signed:_________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee: _________________________
<PAGE> 5
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
Dated: ________ ________________________________________
NOTICE: To be executed by an executive
officer
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. _ NUMBER OF COMMON SECURITIES: ______
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OLD KENT CAPITAL TRUST I
COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Old Kent Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Old
Kent Financial Corporation (the "Holder") is the registered owner of common
securities of the Trust representing an undivided beneficial ownership
interest in the assets of the Trust designated the Floating Rate Common
Securities (liquidation amount $1,000 per Common Security) (the "Common
Securities"). The Common Securities are not transferable and any attempted
transfer thereof shall be void. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust
of the Trust, dated as of January 31, 1997 (as the same may be amended from
time to time, the "Declaration"), among Old Kent Financial Corporation, as
Sponsor, Albert T. Potas, Thomas E. Powell and Mary E. Tuuk, as Regular
Trustees, Bankers Trust Company, as Property Trustee and Bankers Trust
(Delaware), as Delaware Trustee. The Holder is entitled to the benefits of
the Guarantee to the extent described therein. Capitalized terms used
herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration, the
Guarantee and the Indenture to a Holder without charge upon written request
to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for U.S. federal
income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership
interest in the Debentures.
<PAGE> 2
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:_____________________________________
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:_____________________________________
Authorized Officer
<PAGE>
EXHIBIT 4.7
- ---------------------------------------------------------------------------
GUARANTEE AGREEMENT
OLD KENT CAPITAL TRUST I
Dated as of January 31, 1997
- ---------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE<F*>
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(c)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.9
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d); 3.2(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(c)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.6; 5.4(a)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.10; 5.4
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
_______________
<F*> This Cross-Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its
terms or provisions.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. . . . . . . . . . . . . . . 1
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. . . . . . . . . . . . . . 4
SECTION 2.2 Lists of Holders of Securities. . . . . . . . . . . . . . . 4
SECTION 2.3 Reports by Guarantee Trustee. . . . . . . . . . . . . . . . 5
SECTION 2.4 Periodic Reports to Guarantee Trustee . . . . . . . . . . . 5
SECTION 2.5 Evidence of Compliance with Conditions Precedent. . . . . . 5
SECTION 2.6 Guarantee Event of Default; Waiver. . . . . . . . . . . . . 5
SECTION 2.7 Guarantee Event of Default; Notice. . . . . . . . . . . . . 5
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . 6
SECTION 2.9 Disclosure of Information . . . . . . . . . . . . . . . . . 6
SECTION 2.10 Guarantee Trustee May File Proofs of Claim . . . . . . . . 6
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee. . . . . . . . . . . 6
SECTION 3.2 Certain Rights of Guarantee Trustee . . . . . . . . . . . . 8
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee . . . 10
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility. . . . . . . . . . . . . . . 10
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee . 11
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . 12
-i-
<PAGE>
PAGE
SECTION 5.3 Obligations Not Affected. . . . . . . . . . . . . . . . . . 12
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.5 Guarantee of Payment. . . . . . . . . . . . . . . . . . . . 14
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . 14
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions. . . . . . . . . . . . . . . . . 14
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 7
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.3 Compensation. . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns. . . . . . . . . . . . . . . . . . . 17
SECTION 9.2 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 18
-ii-
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of January
31, 1997, is executed and delivered by Old Kent Financial Corporation, a
Michigan corporation (the "Guarantor"), and Bankers Trust Company, a New
York banking corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) of the Securities (as defined
herein) of Old Kent Capital Trust I, a Delaware statutory business trust
(the "Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the Declaration (as defined herein), the
Trust is issuing on the date hereof, and may in the future issue
additional, capital securities, having a liquidation amount of $1,000 per
capital security, designated the Floating Rate Subordinated Capital Income
Securities (the "Capital Securities") and common securities, having a
liquidation amount of $1,000 per common security, designated the Floating
Rate Common Securities (the "Common Securities"; together with the Capital
Securities, the "Securities");
WHEREAS, as incentive for the Holders to purchase the Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the
extent set forth in this Guarantee, to pay to the Holders of the Securities
the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the
benefit of the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. In this Guarantee,
unless the context otherwise requires:
(i) capitalized terms used in this Guarantee but not defined
in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(ii) a term defined anywhere in this Guarantee has the same
meaning throughout;
(iii) all references to "the Guarantee" or "this Guarantee" are
to this Guarantee as modified, supplemented or amended from time to time;
<PAGE> 2
(iv) all references in this Guarantee to Articles and Sections
are to Articles and Sections of this Guarantee, unless otherwise
specified;
(v) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee, unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(vi) a reference to the singular includes the plural and vice
versa and a reference to the masculine includes, as applicable, the
feminine.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" has the meaning given to such term in the
Indenture.
"Corporate Trust Office" means the office of the Guarantee
Trustee at which the corporate trust business of the Guarantee Trustee
shall at any particular time, be principally administered, which office at
the date of execution of this Guarantee is located at Bankers Trust
Company, 4 Albany Street, New York, New York 10006, Attention: Corporate
Trust and Agency Group - Structured Finance Team.
"Covered Person" means any Holder or beneficial owner of
Securities.
"Debentures" means the series of junior subordinated debentures
to be issued by the Guarantor, designated the Floating Rate Junior
Subordinated Debentures due 2027 held by the Property Trustee (as defined
in the Declaration) of the Trust.
"Declaration" means the Amended and Restated Declaration of
Trust, dated as of January 31, 1997, as amended, modified or supplemented
from time to time, among the trustees of the Trust named therein, the
Guarantor, as sponsor, and the holders from time to time of undivided
beneficial ownership interests in the assets of the Trust.
"Guarantee Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Guarantee.
"Guarantee Trustee" means Bankers Trust Company, until a
successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means
each such Successor Guarantee Trustee.
<PAGE> 3
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Securities, to the
extent not paid or made by the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid
on such Securities to the extent the Trust shall have sufficient funds
available therefor at the time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption with respect to
any Securities called for redemption by the Trust, to the extent the Trust
shall have sufficient funds available therefor at the time, and (iii) upon
a voluntary or involuntary dissolution, winding-up or termination of the
Trust (other than in connection with the distribution of Debentures to the
Holders in exchange for Securities as provided in the Declaration), the
lesser of (A) the aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Securities to the date of payment and (B) the
amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution"). If a Trust Enforcement Event (as defined in the
Declaration) has occurred and is continuing, the rights of holders of the
Common Securities to receive Guarantee Payments under this Guarantee are
subordinated to the rights of Holders of the Capital Securities to receive
payments hereunder.
"Holder" shall mean any holder of Securities, as registered on
the books and records of the Trust; provided, however, that, in determining
whether the Holders of the requisite percentage of Capital Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor or any other
obligor on the Capital Securities; and provided further, that in
determining whether the Holders of the requisite liquidation amount of
Capital Securities have voted on any matter provided for in this Guarantee,
then for the purpose of such determination only (and not for any other
purpose hereunder), if the Capital Securities remain in the form of one or
more Global Certificates (as defined in the Declaration), the term
"Holders" shall mean the holder of the Global Certificate acting at the
direction of the beneficial holders of the securities.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or
agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of January 31, 1997,
among the Guarantor (the "Company") and Bankers Trust Company, as trustee,
and any indenture supplemental thereto pursuant to which the Debentures are
to be issued to the Property Trustee (as defined in the Declaration) of the
Trust.
"Majority in Liquidation Amount of the Securities" means, except
as provided in the terms of the Securities or by the Trust Indenture Act,
<PAGE> 4
Holder(s) of outstanding Securities, voting separately as a class, who are
the record holders of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all outstanding Securities. In
determining whether the Holders of the requisite amount of Securities have
voted, Securities which are owned by the Guarantor or any Affiliate of the
Guarantor shall be disregarded for the purpose of any such determination.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Declaration) of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided
for in this Guarantee shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer on behalf of such Person to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(iii) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such condition or covenant
has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the Guarantee
Trustee, including any vice president, any assistant vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
<PAGE> 5
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION. (a) This
Guarantee is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee and shall, to the extent applicable,
be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES. (a) The Guarantor
shall provide the Guarantee Trustee with a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders"), (i) semi-annually, not later
than June 30 and December 31 of each year and current as of such date, and
(ii) at such other times as the Guarantee Trustee may request in writing,
within 30 days of receipt by the Guarantor of a written request from the
Guarantee Trustee for a List of Holders as of a date no more than 15 days
before such List of Holders is given to the Guarantee Trustee; excluding
from any such list names and addresses received by the Guarantee Trustee in
its capacity as Security Registrar (as defined in the Indenture). The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it,
provided that it may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY GUARANTEE TRUSTEE. Within 60 days after
May 15 of each year (commencing with the year of the first anniversary of
the issuance of the Securities), the Guarantee Trustee shall provide to the
Holders of the Securities such reports as are required by Section 313 of
the Trust Indenture Act (if any) in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee such documents, reports
and information as required by Section 314 (if any) of the Trust Indenture
Act and the compliance certificate required by Section 314 of the Trust
<PAGE> 6
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Guarantee that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) shall be given in the form of
an Officers' Certificate.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of
a Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any
such Guarantee Event of Default shall cease to exist, and any Guarantee
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any
right consequent thereon.
SECTION 2.7 GUARANTEE EVENT OF DEFAULT; NOTICE. (a) The
Guarantee Trustee shall, within 90 days after the occurrence of a Guarantee
Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all Guarantee Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; provided,
that the Guarantee Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Guarantee Trustee shall have
received written notice thereof or a Responsible Officer of the Guarantee
Trustee charged with the administration of the Declaration shall have
obtained actual knowledge thereof.
SECTION 2.8 CONFLICTING INTERESTS. The Declaration shall be
deemed to be specifically described in this Guarantee for the purposes of
clause (i) of the first provision contained in Section 310(b) of the Trust
Indenture Act.
SECTION 2.9 DISCLOSURE OF INFORMATION. The disclosure of
information as to the names and addresses of the Holders of the Securities
in accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, shall not be deemed to
be a violation of any existing law, or any law hereafter enacted which does
<PAGE> 7
not specifically refer to Section 312 of the Trust Indenture Act, nor shall
the Guarantee Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 2.10 GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM. Upon
the occurrence of a Guarantee Event of Default, the Guarantee Trustee is
hereby authorized to (i) recover judgment, in its own name and as trustee
of an express trust, against the Guarantor for the whole amount of any
Guarantee Payments remaining unpaid and (ii) file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have
its claims and those of the Holders of the Securities allowed in any
judicial proceedings relative to the Guarantor, its creditors or its
property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee on
behalf of the Trust for the benefit of the Holders of the Securities, and
the Guarantee Trustee shall not transfer this Guarantee to any Person
except a Holder of Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee in and to this Guarantee shall automatically vest in any
Successor Guarantee Trustee, and such vesting and succession of title shall
be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a
Responsible Officer of the Guarantee Trustee has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee for the
benefit of the Holders of the Securities.
(c) The Guarantee Trustee, before the occurrence of any
Guarantee Event of Default and after the curing of all Guarantee Events of
Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Guarantee, and no implied covenants
shall be read into this Guarantee against the Guarantee Trustee. In case a
Guarantee Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer of
the Guarantee Trustee, the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee, and use the same degree
of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
<PAGE> 8
(d) No provision of this Guarantee shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such Guarantee
Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee, and no implied
covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Guarantee; but in the case of
any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Guarantee Trustee shall have reasonable grounds for believing
<PAGE> 9
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee or indemnity,
satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE. (a) Subject
to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee may, in the absence of bad faith
on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to
any recording, filing or registration or any instrument (or any
rerecording, refiling or registration thereof);
(v) The Guarantee Trustee may consult with counsel, and
the advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee from any court of
competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such security
and indemnity, satisfactory to the Guarantee Trustee, against the
<PAGE> 10
costs, expenses (including attorneys' fees and expenses and the
expenses of the Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided, that nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of
a Guarantee Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee;
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit;
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and
the Guarantee Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders of the Securities, and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the
Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Guarantee, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its
agent's taking such action; and
(x) Whenever in the administration of this Guarantee the
Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in Liquidation Amount
of the Securities, (B) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (C) shall be protected in conclusively relying on
or acting in accordance with such instructions.
(b) No provision of this Guarantee shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
<PAGE> 11
exercise any right, power, duty or obligation conferred or imposed on it in
any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE. The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act
as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
promptly resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
<PAGE> 12
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEE.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the Successor
Guarantee Trustee by written instrument executed by the Successor Guarantee
Trustee and delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee
Trustee may resign at any time by giving written notice thereof to the
Holders. The Guarantee Trustee shall appoint a successor by requesting
from at least three Persons meeting the eligibility requirements, such
person's expenses and charges to serve as the Guarantee Trustee, and
selecting the Person who agrees to the lowest expenses and charges. If the
instrument of acceptance by the Successor Guarantee Trustee shall not have
been delivered to the Guarantee Trustee within 30 days after the giving of
such notice of resignation, the Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any time
by Act (within the meaning of Section 104 of the Indenture) of the Holders
of at least a Majority in Liquidation Amount of the Capital Securities,
delivered to the Guarantee Trustee.
(d) If a Guarantee Trustee shall fail to appoint a successor, or
if a Guarantee Trustee shall be removed or become incapable of acting as
Guarantee Trustee, or if any vacancy shall occur in the office of any
Guarantee Trustee for any cause, the Holders of the Capital Securities, by
Act of the Holders of record of not less than 25% in aggregate Liquidation
Amount of the Capital Securities then outstanding delivered to such
Guarantee Trustee, shall promptly appoint a successor Guarantee Trustee. If
no Successor Guarantee Trustee shall have been so appointed by the Holders
of the Capital Securities and such appointment accepted by the Successor
Guarantee Trustee, any Holder, on behalf of himself and all other similarly
situated, may petition any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation
of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall
pay to the Guarantee Trustee all amounts owing for fees and reimbursement
of expenses which have accrued to the date of such termination, removal or
resignation.
(g) The Guarantor shall promptly notify the Holders of the
resignation, removal or appointment of the Guarantee Trustee.
<PAGE> 13
ARTICLE 5
GUARANTEE
SECTION 5.1 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or
by causing the Trust to pay such amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this
Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands. Notwithstanding anything to
the contrary herein, the Guarantor retains all of its rights under the
Indenture to (i) extend the interest payment period on the Debentures and
the Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extended Interest Payment Period (as defined in the
Indenture) with respect to the Distributions (as defined in the
Declaration) on the Securities, and (ii) change the maturity date of the
Debentures to the extent permitted by the Indenture.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee shall be absolute and unconditional and
shall remain in full force and effect until the entire liquidation amount
of all outstanding Securities shall have been paid and such obligation
shall in no way be affected or impaired by reason of the happening from
time to time of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Securities to
be performed or observed by the Trust;
(b) The extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price (as defined in the
Indenture), Liquidation Distribution or any other sums payable under
<PAGE> 14
the terms of the Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution
or other sum payable that results from the extension of any interest
payment period on the Debentures or any change to the maturity date of
the Debentures permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence on the
part of the Property Trustee or the Holders to enforce, assert or
exercise any right, privilege, power or remedy conferred on the
Property Trustee or the Holders pursuant to the terms of the
Securities, or any action on the part of the Trust granting indulgence
or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings affecting,
the Trust or any of the assets of the Trust;
(e) Any invalidity of, or defect or deficiency in, the
Securities;
(f) The settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Guarantee Trustee or the
Holders to give notice to, or obtain consent of the Guarantor or any other
Person with respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any
obligation, or any defense of any kind or nature that the Guarantor has or
may have against any Holder shall be available hereunder to the Guarantor
against such Holder to reduce the payments to it under this Guarantee.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee.
<PAGE> 15
(b) If the Guarantee Trustee fails to enforce this Guarantee,
then any Holder of Securities may, subject to the subordination provisions
of Section 6.2, institute a legal proceeding directly against the Guarantor
to enforce the Guarantee Trustee's rights under this Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. Notwithstanding the foregoing, if
the Guarantor has failed to make a Guarantee Payment, a Holder of
Securities may, subject to the subordination provisions of Section 6.2,
directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the
principal of or interest on the Debentures on or after the respective due
dates specified in the Debentures, and the amount of the payment will be
based on the Holder's pro rata share of the amount due and owing on all of
the Securities. The Guarantor hereby waives any right or remedy to require
that any action on this Guarantee be brought first against the Trust or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Securities against the Trust in respect of any amounts paid to
such Holders by the Guarantor under this Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation of any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee, if at
the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of
the preceding sentence, the Guarantor agrees to hold such amount in trust
for the Holders and to pay over such amount to the Guarantee Trustee for
the benefit of the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Securities,
and that the Guarantor shall be liable as principal and as debtor hereunder
to make Guarantee Payments pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections
5.3(a) through 5.3(g), inclusive, hereof.
<PAGE> 16
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Securities remain outstanding, if there shall have
occurred a Guarantee Event of Default or a Trust Enforcement Event, then
the Guarantor shall not, and shall not permit any subsidiary of the
Guarantor, to (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to,
the Guarantor's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu with or junior to the
Debentures or make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor if
such guarantee ranks pari passu with or junior to the Debentures (other
than (A) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants or in connection
with a dividend reinvestment or shareholder stock purchase plan, (B) as a
result of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class of series of
the Company's indebtedness for any class or series of the Company's capital
stock, (C) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (D) any
declaration of a dividend in connection with any shareholder's rights plan,
or the issuance of rights, stock or other property under any shareholder's
rights plan, or the redemption or repurchase of rights pursuant thereto or
(E) any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid (or PARI PASSU with or junior to such stock)).
SECTION 6.2 RANKING.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all
other liabilities of the Guarantor, except those liabilities of the
Guarantor made pari passu or subordinate by their express terms.
If a Trust Enforcement Event has occurred and is continuing under
the Declaration, the rights of the holders of the Common Securities to
receive Guarantee Payments hereunder shall be subordinated to the rights of
the holders of the Capital Securities to receive payment of all amounts due
and owing hereunder.
<PAGE> 17
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate upon (i) full payment of the
Redemption Price (as defined in the Indenture) of all Securities, (ii) upon
the distribution of the Debentures to the Holders of all the Securities or
(iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Trust. Notwithstanding the foregoing,
this Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder of Securities must restore payment
of any sums paid under the Securities or under this Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to any matter the Indemnified Person reasonably believes is within such
other Person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Guarantor, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against any loss, liability or
<PAGE> 18
expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against, or investigating, any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth
in this Section 8.2 shall survive the termination of this Guarantee.
SECTION 8.3 COMPENSATION.
The Guarantor agrees to pay to the Guarantee Trustee from time to
time reasonable compensation, as mutually agreed to by the Guarantor and
the Guarantee Trustee, for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the
Securities then outstanding. Except in connection with any merger or
consolidation of the Guarantor with or into another entity or any sale,
transfer or lease of the Guarantor's assets to another entity, in each
case, to the extent permitted under the Indenture, the Guarantor may not
assign its rights or delegate its obligations under this Guarantee.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not adversely affect
the rights of the Holders (in which case no consent of the Holders will be
required), this Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Securities.
The provisions of Section 12.2 of the Declaration with respect to meetings
of, and action by written consent of the Holders of the Securities apply to
the giving of such approval.
SECTION 9.3 NOTICES.
All notices provided for in this Guarantee shall be in writing,
duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
<PAGE> 19
(a) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address as
the Guarantee Trustee may give notice of to the Guarantor and the
Holders of the Securities):
Bankers Trust Company
4 Albany Street
New York, New York 10006
Attention: Corporate Trust Administration
Fax: (212)
(b) If given to the Guarantor, at the Guarantor's mailing
addresses set forth below (or such other address as the Guarantor may
give notice of to the Guarantee Trustee and the Holders of the
Securities):
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, MI 49503
Attn: Corporate Secretary
Fax: (616) 771-4672
(c) If given to any Holder of Securities, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Guarantee is solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable
from the Securities.
SECTION 9.5 GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
<PAGE> 20
IN WITNESS WHEREOF, this Guarantee is executed as of the day and
year first above written.
OLD KENT FINANCIAL CORPORATION,
as Guarantor
By:_____________________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
By:_____________________________________
Name:
Title:
<PAGE>
EXHIBIT 4.8
OLD KENT FINANCIAL CORPORATION
TO
BANKERS TRUST COMPANY
a New York banking corporation, Trustee
INDENTURE
Dated as of January 31, 1997
Floating Rate Junior Subordinated Debentures due 2027
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Securities. . . . . . . . . . . . . . . . . . . . . . . . . 3
Cedel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Determination Date. . . . . . . . . . . . . . . . . . . . . . . . . 4
DWAC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Extension Period. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Initial Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . 5
Investment Company Event. . . . . . . . . . . . . . . . . . . . . . 5
Junior Subordinated Securities. . . . . . . . . . . . . . . . . . . 5
Legal Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . 5
-i-
<PAGE>
PAGE
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
London Business Day . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
New Junior Subordinated Securities. . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . 8
Private Placement Legend. . . . . . . . . . . . . . . . . . . . . . 8
Property Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Qualified Institutional Buyer" or "QIB" . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registration Rights Agreement . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . 8
Regulation S. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regulation S Global Security. . . . . . . . . . . . . . . . . . . . 8
Regulatory Capital Event. . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Global Security. . . . . . . . . . . . . . . . . . . . . 9
Restricted Period . . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Security . . . . . . . . . . . . . . . . . . . . . . . . 9
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Registrar. . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Event . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity". . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . 10
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . 11
SECTION 104. Acts of Holders; Record Dates. . . . . . . . . . . . . . . 11
-ii-
<PAGE>
PAGE
SECTION 105. Notices, Etc. to Trustee and the Company . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . 13
SECTION 107. Conflict With Trust Indenture Act. . . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . 13
SECTION 109. Separability Clause. . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . . . . . . 13
SECTION 111. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . 14
SECTION 201. Form of Security . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . 15
SECTION 301. Title and Terms. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . 17
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . 17
SECTION 305. Registration; Registration of Transfer and Exchange. . . . 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . 19
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . 20
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . 21
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 21
-iii-
<PAGE>
PAGE
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . 21
SECTION 311. Right of Set-off . . . . . . . . . . . . . . . . . . . . . 22
SECTION 312. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 313. Global Securities. . . . . . . . . . . . . . . . . . . . . 22
SECTION 314. Restrictive Legend . . . . . . . . . . . . . . . . . . . . 24
SECTION 315. Special Transfer Provisions. . . . . . . . . . . . . . . . 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE . . . . . . . . 29
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . 29
SECTION 402. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . 30
SECTION 403. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . 30
SECTION 404. Conditions to Legal Defeasance or Covenant Defeasance. . . 31
SECTION 405. Application of Trust Money . . . . . . . . . . . . . . . . 32
SECTION 406. Indemnity for U.S. Government Obligations. . . . . . . . . 32
ARTICLE FIVE
REMEDIES. . . . . . . . . . . . . . . . 32
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 504. Trustee may File Proofs of Claim . . . . . . . . . . . . . 34
SECTION 505. Trustee may Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . 35
-iv-
<PAGE>
PAGE
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest; Capital Security Holders' Rights. . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . 37
SECTION 511. Delay or Omission not Waiver . . . . . . . . . . . . . . . 37
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . 37
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . 38
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . 38
ARTICLE SIX
TRUSTEE. . . . . . . . . . . . . . . . 39
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . 39
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 39
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . 39
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . 40
SECTION 605. Trustee and Other Agents may Hold Securities . . . . . . . 41
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . 41
SECTION 607. Compensation; Reimbursement; and Indemnity . . . . . . . . 41
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . . . 42
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . 42
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . 42
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . 44
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . 44
-v-
<PAGE>
PAGE
SECTION 613. Preferential Collection of Claims Against Company. . . . . 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . 45
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 702. Preservation of Information; Communications to Holders . . 45
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . 45
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . 46
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE. . . . . 46
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . 46
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . 47
ARTICLE NINE
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . 47
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . 47
SECTION 902. Supplemental Indentures With Consent of Holders. . . . . . 48
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . 49
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . 49
SECTION 905. Conformity With Trust Indenture Act. . . . . . . . . . . . 49
SECTION 906. Reference in Securities to Supplemental Indentures . . . . 49
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . 49
SECTION 1001. Payment of Principal and Interest . . . . . . . . . . . . 50
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . 50
-vi-
<PAGE>
PAGE
SECTION 1003. Money for Security Payments to be Held in Trust . . . . . 50
SECTION 1004. Statements by Officers as to Default. . . . . . . . . . . 51
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . 52
SECTION 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . 52
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . 52
SECTION 1009. Payment of the Trust's Costs and Expenses . . . . . . . . 52
SECTION 1010. Restrictions on Payments and Distributions. . . . . . . . 53
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES. . . . . . . . . . . 54
SECTION 1101. Securities Subordinate to Indebtedness. . . . . . . . . . 54
SECTION 1102. Default on Indebtedness . . . . . . . . . . . . . . . . . 54
SECTION 1103. Prior Payment of Indebtedness Upon Acceleration of
Securities . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1104. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . 55
SECTION 1105. Subrogation . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1106. Trustee to Effectuate Subordination . . . . . . . . . . . 57
SECTION 1107. Notice by the Company . . . . . . . . . . . . . . . . . . 57
SECTION 1108. Rights of the Trustee; Holders of Indebtedness. . . . . . 58
SECTION 1109. Subordination May Not Be Impaired . . . . . . . . . . . . 59
ARTICLE TWELVE
REDEMPTION OF SECURITIES. . . . . . . . . . . . 59
SECTION 1201. Optional Redemption; Conditions to Optional Redemption. . 59
SECTION 1202. Applicability of Article. . . . . . . . . . . . . . . . . 60
-vii-
<PAGE>
PAGE
SECTION 1203. Election to Redeem; Notice to Trustee . . . . . . . . . . 60
SECTION 1204. Selection by Trustee of Securities to be Redeemed . . . . 60
SECTION 1205. Notice of Redemption. . . . . . . . . . . . . . . . . . . 60
SECTION 1206. Deposit of Redemption Price . . . . . . . . . . . . . . . 61
SECTION 1207. Securities Payable on Redemption Date . . . . . . . . . . 61
-viii-
<PAGE>
Sections 310 through 318 of the
Trust Indenture Act of 1939:
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . .101, 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . .502
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . .513
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
<PAGE>
This INDENTURE is dated as of January 31, 1997, between OLD KENT
FINANCIAL CORPORATION, a corporation duly organized and existing under the
laws of the State of Michigan (herein called the "Company"), having its
principal office at One Vandenberg Center, Grand Rapids, MI 49503 and
BANKERS TRUST COMPANY, a New York banking corporation, as Trustee (herein
called the "Trustee").
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of its Floating Rate Junior Subordinated Debentures due 2027 (the
"Junior Subordinated Securities") and its Floating Rate New Junior
Subordinated Debentures due 2027 (the "New Junior Subordinated Securities",
and together with the Junior Subordinated Securities, the "Securities") to
be issued in exchange for the Junior Subordinated Securities.
WHEREAS, Old Kent Capital Trust I, a Delaware business trust (the
"Trust"), has offered to the public its Floating Rate Subordinated Capital
Income Securities (the "Capital Securities") representing undivided
beneficial ownership interests in the assets of the Trust and proposes to
invest the proceeds from such offering and the proceeds from the issuance
of its Common Securities in the Securities.
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture.
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular and
the masculine as well as the feminine;
<PAGE> 2
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(iv) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(v) a reference to any Person shall include its successor and
assigns;
(vi) a reference to any agreement or instrument shall mean such
agreement or instrument as supplemented, modified, amended or amended and
restated and in effect from time to time;
(vii) a reference to any statute, law, rule or regulation, shall
include any amendments thereto applicable to the relevant Person, and any
successor statute, law, rule or regulation; and
(viii) a reference to any particular rating category shall be
deemed to include any corresponding successor category, or any
corresponding rating category issued by a successor or subsequent rating
agency.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning specified in Section 307.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board as the context
requires.
<PAGE> 3
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors or the Executive Committee thereof and to
be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York and Grand Rapids,
Michigan are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Trustee, or the
principal office of the Property Trustee, under the Declaration, is closed
for business.
"Calculation Agent" means any Person authorized by the Company to
determine the interest rate of the Securities.
"Capital Securities" has the meaning specified in the Recitals to
this instrument.
"Cedel" means Cedel Bank, societe anonymne.
"Closing Date" means January 31, 1997 and such other dates as the
parties hereto may agree upon to consummate the transactions contemplated
hereby.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Securities" means the common securities issued by the
Trust.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in the City of New York, at which at any particular time its
<PAGE> 4
corporate trust business shall be administered and which at the date of
this Indenture is located at Four Albany Street, 4th Floor, New York, New
York 10006, Attention: Corporate Market Services.
"Covenant Defeasance" has the meaning specified in Section 403.
"Custodian" means the custodian for the time being of any Global
Security as designated by the Depositary.
"Declaration" means the Amended and Restated Declaration of
Trust, dated as of January 31, 1997, as amended, modified or supplemented
from time to time, among the trustees of the Trust named therein, the
Company, as sponsor, and the holders from time to time of undivided
beneficial ownership interests in the assets of the Trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities issuable in whole
or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary
for such Securities.
"Determination Date" means, with respect to any interest period,
the date that is two London Business Days prior to the first day of such
interest period.
"DWAC" means Deposit and Withdrawal At Custodian Service.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor legislation.
"Extension Period" has the meaning specified in Section 301.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Global Security" means a Security that evidences all or part of
the Securities and is authenticated and delivered to, and registered in the
name of, the Depositary for such Securities or a nominee thereof.
"Guarantee" means the Guarantee Agreement, dated as of January
31, 1997, made by the Company in favor of Bankers Trust Company as trustee
<PAGE> 5
thereunder for the benefit of the Holders (as defined therein) of the
Capital Securities and the holder of the Common Securities.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, whether recourse is to all or a portion of
the assets of the Company and whether or not contingent, (i) every
obligation of the Company for money borrowed, (ii) every obligation of the
Company evidenced by bonds, debentures, notes or other similar instruments
of the Company, including obligations incurred in connection with the
acquisition of property, assets or businesses and including the Company's 6
5/8% Subordinated Notes due November 15, 2005, (iii) every reimbursement
obligation of the Company with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of the Company,
(iv) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business),
(v) every capital lease obligation of the Company, (vi) every obligation of
the Company for claims (as defined in Section 101(4) of the United States
Bankruptcy Code of 1978, as amended) in respect of derivative products such
as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or
is responsible or liable, directly or indirectly, as obligor or otherwise;
PROVIDED that "Indebtedness" shall not include (A) any obligations which,
by their terms, are expressly stated to rank PARI PASSU in right of payment
with, or to not be superior in right of payment to, the Securities, (B) any
indebtedness of the Company which when incurred and without respect to any
election under Section 1111(b) of the United States Bankruptcy Code of
1978, as amended, was without recourse to the Company, (C) any indebtedness
of the Company to any of its subsidiaries, (D) any indebtedness of the
Company to any employee of the Company or (E) any indebtedness in respect
of debt securities issued to any trust, or a trustee of such trust,
partnership or other entity affiliated with the Company that is a financing
entity of the Company in connection with the issuance of such financing
entity of securities that are similar to the Capital Securities.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.
"Initial Purchaser" means Lehman Brothers Inc.
<PAGE> 6
"Interest Payment Date", when used with respect to any
installment of interest on a Security, means the date specified in such
Security as the fixed date on which an installment of interest with respect
to the Securities is due and payable.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel having a recognized national securities practice to the
effect that, as a result of the occurrence of a change in law or regulation
or a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the Securities.
"Junior Subordinated Securities" has the meaning specified in the
Recitals to this instrument.
"Legal Defeasance" has the meaning specified in Section 402.
"LIBOR" means, with respect to an interest period relating to an
Interest Payment Date (in the following order of priority):
(ix) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that
appears on Telerate Page 3750 as of 11:00 a.m. (London time)
on the related Determination Date;
(x) if such rate does not appear on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date,
LIBOR will be the arithmetic mean (if necessary rounded
upwards to the nearest whole multiple of .00001%) of the
rates (expressed as percentages per annum) for Eurodollar
deposits having a three-month maturity that appear on
Reuters Monitor Money Rates Page LIBO ("Reuters Page LIBO")
as of 11:00 a.m. (London time) on such Determination Date;
(xi) if such rate does not appear on Reuters Page LIBO as of
11:00 a.m. (London time) on the related Determination Date,
the Calculation Agent will request the principal London
offices of four leading banks in the London interbank market
to provide such banks' offered quotations (expressed as
percentages per annum) to prime banks in the London
interbank market for Eurodollar deposits having a three-
month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are
provided, LIBOR will be the arithmetic mean (if necessary
<PAGE> 7
rounded upwards to the nearest whole multiple of .00001%)
of such quotations;
(xii) if fewer than two such quotations are provided as requested
in clause (iii) above, the Calculation Agent will request
four major New York City banks to provide such banks'
offered quotations (expressed as percentages per annum) to
leading European banks for Loans in Eurodollars as of 11:00
a.m. (London time) on such Determination Date. If at least
two such quotations are provided, LIBOR will be the
arithmetic mean (if necessary rounded upwards to the nearest
whole multiple of .00001%) of such quotations; and
(xiii) if fewer than two such quotations are provided as requested
in clause (iv) above, LIBOR will be LIBOR determined with
respect to the interest period immediately preceding such
current interest period.
If the rate for Eurodollar deposits having a three-month maturity
that initially appears on Telerate Page 3750 or Reuters Page LIBO, as the
case may be, as of 11:00 a.m. (London time) on the related Determination
Date is superseded on Telerate Page 3750 or Reuters Page LIBO, as the case
may be, by a corrected rate before 12:00 noon (London time) on such
Determination Date, the corrected rate as so substituted on the applicable
page will be the applicable LIBOR for such Determination Date.
"London Business Day" means any day, other than a Saturday or
Sunday, on which banks are open for business in London.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity (which may be
extended as therein or herein provided) or by declaration of acceleration,
call for redemption or otherwise.
"New Junior Subordinated Securities" has the meaning specified in
the Recitals to this instrument.
"Officers' Certificate" means a certificate signed on behalf of
the Company by the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
<PAGE> 8
(i) a statement that each officer signing the Officers'
Certificate on behalf of the Company has read the covenant or condition and
the definitions relating thereto;
(ii) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iii) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company (and who may be an employee of the Company). An
opinion of counsel may rely on Officers' Certificates as to matters of
fact.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities authenticated and delivered under
this Indenture, except: (i) Securities cancelled by the Trustee or
delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holder of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and (iii) Securities which have been paid pursuant
to Section 306, or in exchange or for in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; PROVIDED, HOWEVER, that in determining whether
the holders of the requisite principal amount of Outstanding Securities are
present at a meeting of holders of Securities for quorum purposes or have
consented to or voted in favor of any request, demand, authorization,
direction, notice, consent, waiver, amendment or modification hereunder,
Securities held for the account of the Company, any of its subsidiaries or
any of its affiliates shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Trustee shall be
protected in making such a determination or relying upon any such quorum,
consent or vote, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or interest on any Securities on behalf of the Company.
<PAGE> 9
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Private Placement Legend" has the meaning specified in Section
314 of this Indenture.
"Property Trustee" has the meaning set forth in the Declaration.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof between the Company and the Initial
Purchaser for the benefit of themselves and the Holders (as defined
therein) of the Capital Securities as the same may be amended from time to
time in accordance with the terms thereof.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the fifteenth day preceding the relevant Interest
Payment Date.
"Regular Trustee" has the meaning specified in the Declaration.
"Regulation S" means Regulation S under the Securities Act and
any successor regulation thereto.
"Regulation S Global Security" means any Global Security or
Securities evidencing Securities that are to be traded pursuant to
Regulation S.
<PAGE> 10
"Regulatory Capital Event" means that the Company shall have
received an opinion of independent bank regulatory counsel experienced in
such matters to the effect that, as a result of (i) any amendment to or
change (including any announced prospective change) in the laws (or any
regulations thereunder) of the United States or any rules, guidelines or
policies of the Federal Reserve or (ii) any official or administrative
pronouncement or action or judicial decision interpreting or applying such
laws or regulations which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original
issuance of the Capital Securities, the Capital Securities do not
constitute, or within 90 days of the date thereof, will not constitute Tier
1 capital (or its then equivalent); PROVIDED, HOWEVER, that the
distribution of the Securities in connection with the liquidation of the
Trust by the Company shall not in and of itself constitute a Regulatory
Capital Event unless such liquidation shall have occurred in connection
with a Tax Event or an Investment Company Event.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Office including any Vice
President, Assistant Vice President, Managing Director, the Secretary, any
Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Global Security" means any Global Security or
Securities evidencing Securities that are to be traded pursuant to
Rule 144A.
"Restricted Period" shall have the meaning specified in
Section 315.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) of the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning specified in the Recitals to this
instrument.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Event" means either an Investment Company Event, a
Regulatory Capital Event or a Tax Event.
<PAGE> 11
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security
as the date on which the principal, together with any accrued and unpaid
interest, of such Security or such installment of interest is due and
payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax practice,
to the effect that, as a result of any amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein,
or as a result of any official or administrative pronouncement or action or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is adopted or which proposed change, pronouncement or
decision is announced or which action is taken on or after the date of
original issuance of the Capital Securities under the Declaration, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to U.S. federal income tax with
respect to income received or accrued on the Securities, (ii) interest
payable by the Company on the Securities is not, or within 90 days of the
date of such opinion, will not be, deductible by the Company, in whole or
in part, for U.S. federal income tax purposes or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to more than a
DE MINIMIS amount of other taxes, duties or other governmental charges.
"Trust" means Old Kent Capital Trust I, a statutory business
trust declared and established pursuant to the Delaware Business Trust Act
by the Declaration.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after
<PAGE> 12
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 404.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
SECTION 102. Compliance Certificates and Opinions; Officers' Certificate
of Evidence.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on
the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
<PAGE> 13
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee at the address specified in
Section 105 and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by
<PAGE> 14
Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or
vote shall be the 15th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be.
With regard to any record date, only the Holders on such date (or
their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 105. Notices, Etc. to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office; or
(ii) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company (Attention: Corporate Secretary) addressed to it at the address of
its principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
<PAGE> 15
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made by telecopier or overnight
air courier guaranteeing next day delivery.
SECTION 107. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be
a part of and govern this Indenture, the provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or so be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Indebtedness, the holders of Capital
Securities (to the extent provided herein) and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
<PAGE> 16
SECTION 111. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. THIS INDENTURE IS SUBJECT
TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART
OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH
PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal of the Securities need not be
made on such date, but may be made on the next succeeding Business Day
(except that, if such Business Day is in the next succeeding calendar year,
such Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be, shall be the immediately preceding Business Day) with the same
force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form of Security.
The Junior Subordinated Securities in definitive form and the New
Junior Subordinated Securities in definitive form shall be in the form
attached hereto as Exhibit A; PROVIDED, that the New Junior Subordinated
Securities shall not contain any of the transfer restriction provisions
following the Trustee's authentication.
If the Securities are distributed to the holders of Capital
Securities and Common Securities, the record holder (including any
Depositary) of any Capital Securities or Common Securities shall be issued
Securities in definitive, fully registered form without interest coupons,
substantially in the form of Exhibit A hereto, with the legends in
substantially the form of the legends existing on the security representing
the Capital Securities or Common Securities to be exchanged (with such
changes thereto as the officers executing such Securities determine to be
necessary or appropriate, as evidenced by their execution of the
Securities) and such other legends as may be applicable thereto (including
any legend required by Section 313 or Section 314 hereof), duly executed by
<PAGE> 17
the Company and authenticated (upon receipt of a Company Order for the
authentication) by the Trustee or the Authenticating Agent as provided
herein, which Securities, if to be held in global form by any Depositary,
may be deposited on behalf of the holders of the Securities represented
thereby with the Trustee, as custodian for the Depositary, and registered
in the name of a nominee of the Depositary.
Any Global Security shall represent such of the outstanding
Securities as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be increased or reduced to
reflect transfers or exchanges permitted hereby. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
amount of outstanding Securities represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in such manner
and upon written instructions given by the holder of such Securities in
accordance with the Indenture. Payment of principal, interest and premium,
if any, on any Global Security shall be made to the holder of such Global
Security.
The Securities shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these or other methods, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities' Stated Maturity shall be February 1, 2027.
The Securities shall bear interest at a variable per annum rate
equal to LIBOR plus .80%, from January 31, 1997 or from the most recent
<PAGE> 18
Interest Payment Date to which interest has been paid or duly provided for,
as the case may be, payable quarterly (subject to deferral as set forth
herein), in arrears, on the 1st Day of February, May, August and November
of each year, commencing May 1, 1997, until the principal thereof is paid
or made available for payment. Interest will compound quarterly and will
accrue at a variable per annum rate equal to LIBOR plus .80%, to the extent
permitted by applicable law, on any interest installment in arrears for
more than one quarterly period or during an extension of an interest
payment period as set forth below in this Section 301. In the event that
any date on which interest is payable on the Securities is not a Business
Day, then a payment of the 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 falls in the next calendar year, such payment will be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on the date the payment was originally payable.
The Company shall have the right, at any time during the term of
the Securities, from time to time and so long as no Event of Default has
occurred or is continuing, to defer payment of interest on such Security
for up to 20 consecutive quarterly periods (an "Extension Period") PROVIDED
that no Extension Period may extend past the Maturity of the Security.
There may be multiple Extension Periods of varying lengths during the term
of the Securities. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together with
interest thereon, compounded quarterly at the rate specified on this
Security to the extent permitted by applicable law. Prior to the
termination of any such Extension Period, the Company may further extend
the interest payment period, PROVIDED that no Extension Period may exceed
20 consecutive quarterly periods or extend beyond the Stated Maturity of
the Securities. Upon the termination of any such Extension Period and the
payment of all amounts then due on any Interest Payment Date, the Company
may elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee, the
Property Trustee and the Regular Trustees written notice of its election of
such Extension Period at least one Business Day prior to the record date
for the related interest payment.
The Trustee shall promptly give notice of the Company's selection
of such Extension Period to the Holders of the Capital Securities.
The principal of and interest on the Securities shall be payable
at the office or agency of the Paying Agent in the United States maintained
for such purpose and at any other office or agency maintained by the
Company for such purpose in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Company payment
<PAGE> 19
of interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as
specified in the Security Register.
The Securities shall be subordinated in right of payment to
Indebtedness as provided in Article Eleven.
The Securities shall be redeemable as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Company Order shall authenticate and make
available for delivery such Securities as in this Indenture provided and
not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
<PAGE> 20
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate, upon receipt of a Company Order
for the authentication, and make available for delivery in exchange
therefor a like principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee, a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for
such purpose, the Company shall execute, and the Trustee shall, upon
receipt of a Company Order for the authentication, authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
<PAGE> 21
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall, upon receipt of a Company
Order for the authentication, authenticate and make available for delivery,
the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 304, 906 or 1208 not
involving any transfer.
If the Securities are to be redeemed in part, the Company shall
not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 1204 and ending at the
close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in
part.
So long as the Securities are eligible for book-entry settlement
with the Depositary, or unless otherwise required by law, all Securities to
be traded on the PORTAL Market shall be represented by the Restricted
Global Security registered in the name of the Depositary or the nominee of
the Depositary.
The transfer and exchange of beneficial interests in any Global
Security, which does not involve the issuance of a definitive Security or
the transfer of interests to another Global Security, shall be effected
through the Depositary (but not the Trustee or the Custodian) in accordance
with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor. Neither the Trustee
nor the Custodian (in such respective capacities) will have any
<PAGE> 22
responsibility for the transfer and exchange of beneficial interests in
such Global Security that does not involve the issuance of a definitive
Security or the transfer of interests to another Global Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall, upon receipt of a Company
Order for the authentication, authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall, upon receipt of a Company Order for the authentication,
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, subject to the preceding paragraph, pay such Security
instead of issuing a new Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and its
agents and counsel) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
<PAGE> 23
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (ii).
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and if so
listed, upon such notice as may be required by such exchange, if, after
<PAGE> 24
written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee. Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue which, which were carried by
such other Security.
In the event that a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional interest ("Additional
Interest") shall become payable in respect of the Securities with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $.25 per week per $1,000
liquidation amount of Securities for each week or portion thereof that the
Registration Default continues. Additional Interest will increase by an
additional $.05 per $1,000 liquidation amount of Securities with respect to
each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Additional Interest of $.50 per $1,000
liquidation amount of Securities.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any officer, director, employee or
agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of in
accordance with its customary procedures. If the Company shall acquire any
of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such
<PAGE> 25
Securities unless and until the same are surrendered to the Trustee for
cancellation.
SECTION 310. Computation of Interest.
The Company shall appoint a Calculation Agent, which may be the
Trustee, to determine LIBOR as of the Determination Date for each quarterly
interest period and to calculate the interest rate and the amount of
interest due for each such interest period. Absent manifest error, the
Calculation Agent's determination of LIBOR and its calculation of the
interest rate for each interest period shall be final and binding on the
holders of the Securities.
Interest on the Securities shall be computed on the basis of the
actual number of days elapsed in a year of twelve 30-day months. 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
actual number of days elapsed in such 90-day quarterly period.
SECTION 311. Right of Set-off.
Notwithstanding anything to the contrary in the Indenture, the
Company shall have the right to set-off any payment it is otherwise
required to make thereunder to the extent the Company has theretofore made,
or is concurrently on the date of such payment making, a related payment
under the Guarantee.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; PROVIDED that any
such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company shall promptly notify the Trustee of any change in the "CUSIP"
numbers.
SECTION 313. Global Securities.
If the Securities are distributed to the holders of Capital
Securities, such Securities distributed in respect of Capital Securities
that are held in global form by a Depositary will initially be issued as a
Global Security, unless such transfer cannot be effected through book-entry
settlement. If the Company shall establish that the Securities are to be
issued in the form of one or more Global Securities, then the Company shall
<PAGE> 26
execute and the Trustee shall, in accordance with Section 303 and the
Company Order, authenticate and deliver one or more Global Securities that
(i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities to be issued in the
form of Global Securities and not yet cancelled, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities or the
nominee of such Depositary and (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. Notwithstanding the provisions of
Section 305, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Global Security representing
all or a part of the Securities may not be transferred in the manner
provided in Section 305 except as a whole by the Depositary to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary. Every Security delivered upon registration or transfer of, or
in exchange for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited circumstances
described above. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is to be made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
Definitive Securities issued in exchange for all or a part of a
Global Security pursuant to this Section 313 shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. Upon execution and authentication, the
Security Registrar shall deliver such definitive Securities to the persons
in whose names such definitive Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or canceled, such Global Securities shall be, upon
receipt thereof, canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the
Trustee. At any time prior to such cancellation, if any interest in Global
Securities is exchanged for definitive Securities, redeemed, canceled or
<PAGE> 27
transferred to a transferee who receives definitive Securities therefor or
any definitive Security is exchanged or transferred for part of Global
Securities, the principal amount of such Global Securities shall, in
accordance with the standing procedures and instructions existing between
the Depositary and the Trustee, be reduced or increased, as the case may
be, and an endorsement shall be made on such Global Securities by the
Trustee or the Custodian, at the direction of the Trustee, to reflect such
reduction or increase.
The Company and the Trustee may for all purposes, including the
making of payments due on the Securities, deal with the Depositary as the
authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial
interest in a Global Security shall be limited to those established by law
and agreements between such owners and depository participants or Euroclear
and Cedel; PROVIDED, that no such agreement shall give any rights to any
person against the Company or the Trustee, or their respective officers,
directors, employees and agents, without the written consent of the parties
so affected. Multiple requests and directions from and votes of the
Depositary as holder of Securities in global form with respect to any
particular matter shall not be deemed inconsistent to the extent they do
not represent an amount of Securities in excess of those held in the name
of the Depositary or its nominee.
If at any time the Depositary for any Securities represented by
one or more Global Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible under this
Section 313, the Company shall appoint a successor Depositary with respect
to such Securities. If a successor Depositary for such Securities is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election that
such Securities be represented by one or more Global Securities shall no
longer be effective and the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities, will authenticate and make available for delivery
Securities in definitive registered form, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such Securities in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities, shall
authenticate and make available for delivery, Securities in definitive
registered form, in any authorized denominations, in an aggregate principal
<PAGE> 28
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in Section 314(a)), Global Securities may not
be transferred as a whole except 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 or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in Global Security may be
transferred or exchanged for definitive Securities and definitive
Securities may be transferred or exchanged for Global Securities in
accordance with rules of the Depositary and the provisions of Section 315.
Any Security in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by
the Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Securities to be tradeable on the PORTAL
Market or as may be required for the Securities to be tradeable on any
other market developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation thereunder or
with Regulation S or with the rules and regulations of any securities
exchange upon which the Securities may be listed or traded or to conform
with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Securities are subject.
SECTION 314. Restrictive Legend.
(a) Each Global Security and definitive Security that
constitutes a Restricted Security shall bear the following legend (the
"Private Placement Legend") on the face thereof until three years after the
later of the date of original issue and the last date on which the Company
or any Affiliate of the Company was the owner of such Capital Securities
(or any predecessor thereto) (the "Resale Restriction Termination Date"),
unless otherwise agreed by the Company and the Holder thereof:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
<PAGE> 29
AGREES FOR THE BENEFIT OF THE COMPANY THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER
THIS SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS
AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH
RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE. ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES
(II)(D) AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY
AND THE PROPERTY TRUSTEE FOR SUCH SECURITIES TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION
ACCEPTABLE TO THEM IN FORM AND SUBSTANCE."
Any Security (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon satisfaction of the requirements of
Section 314(b) and surrender of such Security for exchange to the Security
Registrar in accordance with the provisions of this Section 314, be
exchanged for a new Security or Securities, of like tenor and aggregate
principal amount, which shall not bear the restrictive legend required by
this Section 314(a).
(b) Upon any sale or transfer of any Restricted Security
(including any interest in a Global Security) (i) that is effected pursuant
to an effective registration statement under the Securities Act or (ii) in
connection with which the Trustee receives certificates and other
information (including an opinion of counsel, if requested) reasonably
acceptable to the Company to the effect that such security will no longer
be subject to the resale restrictions under federal and state securities
laws, then (A) in the case of a Restricted Security in definitive form, the
Security Registrar or co-Registrar shall permit the holder thereof to
exchange such Restricted Security for a Security that does not bear the
legend set forth in Section 314(a), and shall rescind any such restrictions
on transfer and (B) in the case of Restricted Securities represented by a
Global Security, such Security shall no longer be subject to the
<PAGE> 30
restrictions contained in the legend set forth in Section 314(a) (but still
subject to the other provisions hereof). In addition, any Security (or
Security issued in exchange or substitution therefor) as to which the
restrictions on transfer described in the legend set forth in Section
314(a) have expired by their terms, may, upon surrender thereof (in
accordance with the terms of this Indenture) together with such
certifications and other information (including an Opinion of Counsel
having substantial experience in practice under the Securities Act and
otherwise reasonably acceptable to the Company, addressed to the Company
and the Trustee and in a form acceptable to the Company, to the effect that
the transfer of such Restricted Security has been made in compliance with
Rule 144 or such successor provision) acceptable to the Company and the
Trustee as either of them may reasonably require, be exchanged for a new
Security or Securities of like tenor and aggregate principal amount, which
shall not bear the restrictive legends set forth in Section 314(a).
Trustee shall receive a certificate, upon which the Trustee may
conclusively rely, from the Person transferring such Restricted Security,
stating that such transferor satisfies the requirements of this Section 314
and that all conditions precedent required for such transfer have occurred.
SECTION 315. Special Transfer Provisions.
At any time at the request of the beneficial holder of an
interest in a Security in global form, such beneficial holder shall be
entitled to obtain a definitive Security upon written request to the
Trustee in accordance with the standing instructions and procedures
existing between the Depositary and the Trustee for the issuance thereof.
Upon receipt of any such request, the Trustee will cause the aggregate
principal amount of the Security in global form to be reduced and,
following such reduction, the Company will execute and the Trustee will,
upon receipt of a Company Order for the authentication, authenticate and
deliver to such beneficial holder (or its nominee) a Security or Securities
in the appropriate aggregate principal amount in the name of such
beneficial holder (or its nominee) and bearing such restrictive legends as
may be required by this Indenture.
Any transfer of a beneficial interest in a Security in global
form which cannot be effected through book-entry settlement must be
effected by the delivery to the transferee (or its nominee) of a definitive
Security or Securities registered in the name of the transferee (or its
nominee) on the books maintained by the Trustee. With respect to any such
transfer, the Trustee will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Trustee, the aggregate principal amount of the Security in global form to
be reduced and, following such reduction, the Company will execute and the
Trustee will, upon receipt of a Company Order for the authentication,
authenticate and deliver to the transferee (or such transferee's nominee,
as the case may be), a Security or Securities in the appropriate aggregate
<PAGE> 31
principal amount in the name of such transferee (or its nominee) and
bearing such restrictive legends as may be required by this Indenture. In
connection with any such transfer, the Trustee may request a certificate,
upon which the Trustee may conclusively rely, containing such
representations and agreements relating to the restrictions on transfer of
such Security or Securities from such transferee (or such transferee's
nominee) as the Trustee may reasonably require.
So long as the Securities are eligible for book-entry settlement,
or unless otherwise required by law, upon any transfer of a definitive
Security to a QIB in accordance with Rule 144A, unless otherwise requested
by the transferor, and upon receipt of the definitive Security or
Securities being so transferred, together with a certification, upon which
the Trustee may conclusively rely, from the transferor that the transferor
reasonably believes that the transferee is a QIB, the Trustee shall make an
endorsement on the Restricted Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Restricted
Global Security, the Trustee shall cancel such definitive Security or
Securities and cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of Securities represented by the Restricted Global
Security to be increased accordingly.
So long as the Securities are eligible for book-entry settlement,
or unless otherwise required by law, upon any transfer of a definitive
Security in accordance with Regulation S, if requested by the transferor,
and upon receipt of the definitive Security or Securities being so
transferred, together with a certification, upon which the Trustee may
conclusively rely, from the transferor that the transfer was made in
accordance with Rule 903 or 904 of Regulation S or Rule 144 under the
Securities Act, the Trustee shall make or direct the Custodian to make, an
endorsement on the Regulation S Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Regulation S Global Security, the Trustee shall cancel such definitive
Security or Securities and cause, or direct the Custodian to cause, in
accordance with the standing instructions and procedures existing between
the Depositary and the Custodian, the aggregate principal amount of
Securities represented by the Regulation S Global Security to be increased
accordingly.
If a holder of a beneficial interest in the Restricted Global
Security wishes at any time to exchange its interest in the Restricted
Global Security for an interest in the Regulation S Global Security, or to
transfer its interest in the Restricted Global Security to a person who
wishes to take delivery thereof in the form of an interest in the
Regulation S Global Security, such holder may, subject to the rules and
procedures of the Depositary and to the requirements set forth in the
following sentence, exchange or cause the exchange or transfer or cause the
<PAGE> 32
transfer of such interest for an equivalent beneficial interest in the
Regulation S Global Security. Upon receipt by the Trustee, as transfer
agent of (i) instructions given in accordance with the Depositary's
procedures from or on behalf of a holder of a beneficial interest in the
Restricted Global Security, directing the Trustee (via DWAC), as transfer
agent, to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest
in the Restricted Global Security to be exchanged or transferred, (ii) a
written order given in accordance with the Depositary's procedures
containing information regarding the Euroclear or Cedel account to be
credited with such increase and the name of such account and (iii) a
certificate, upon which the Trustee may conclusively rely, given by the
holder of such beneficial interest stating that the exchange or transfer of
such interest has been made pursuant to and in accordance with Rule 903 or
Rule 904 of Regulation S or Rule 144 under the Securities Act, the Trustee,
as transfer agent, shall promptly deliver appropriate instructions to the
Depositary (via DWAC), its nominee, or the custodian for the Depositary, as
the case may be, to reduce or reflect on its records a reduction of the
Restricted Global Security by the aggregate principal amount of the
beneficial interest in such Restricted Global Security to be so exchanged
or transferred from the relevant participant, and the Trustee, as transfer
agent, shall promptly deliver appropriate instructions (via DWAC) to the
Depositary, its nominee, or the custodian for the Depositary, as the case
may be, concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of such Regulation S Global
Security by the aggregate principal amount of the beneficial interest in
such Restricted Global Security to be so exchanged or transferred, and to
credit or cause to be credited to the account of the person specified in
such instructions (who may be Morgan Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Cedel or another agent member
of Euroclear or Cedel, or both, as the case may be, acting for and on
behalf of them) a beneficial interest in such Regulation S Global Security
equal to the reduction in the principal amount of such Restricted Global
Security.
If a holder of a beneficial interest in the Regulation S Global
Security wishes at any time to exchange its interest in the Regulation S
Global Security for an interest in the Restricted Global Security, or to
transfer its interest in the Regulation S Global Security to a person who
wishes to take delivery thereof in the form of an interest in the
Restricted Global Security, such holder may, subject to the rules and
procedures of Euroclear or Cedel and the Depositary, as the case may be,
and to the requirements set forth in the following sentence, exchange or
cause the exchange or transfer or cause the transfer of such interest for
an equivalent beneficial interest in such Restricted Global Security. Upon
receipt by the Trustee, as transfer agent of (i) instructions given in
accordance with the procedures of Euroclear or Cedel and the Depositary, as
the case may be, from or on behalf of a beneficial owner of an interest in
<PAGE> 33
the Regulation S Global Security directing the Trustee, as transfer agent,
to credit or cause to be credited a beneficial interest in the Restricted
Global Security in an amount equal to the beneficial interest in the
Regulation S Global Security to be exchanged or transferred, (ii) a written
order given in accordance with the procedures of Euroclear or Cedel and the
Depositary, as the case may be, containing information regarding the
account with the Depositary to be credited with such increase and the name
of such account and (iii) prior to the expiration of the Restricted Period,
a certificate, upon which the Trustee may conclusively rely, given by the
holder of such beneficial interest and stating that the person transferring
such interest in such Regulation S Global Security reasonably believes that
the person acquiring such interest in the Restricted Global Security is a
QIB and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state
of the United States or any other jurisdiction, the Trustee, as transfer
agent, shall promptly deliver (via DWAC) appropriate instructions to the
Depositary, its nominee, or the custodian for the Depositary, as the case
may be, to reduce or reflect on its records a reduction of the Regulation S
Global Security by the aggregate principal amount of the beneficial
interest in such Regulation S Global Security to be exchanged or
transferred, and the Trustee, as transfer agent, shall promptly deliver
(via DWAC) appropriate instructions to the Depositary, its nominee, or the
custodian for the Depositary, as the case may be, concurrently with such
reduction, to increase or reflect on its records an increase of the
principal amount of the Restricted Global Security by the aggregate
principal amount of the beneficial interest in the Regulation S Global
Security to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions a
beneficial interest in the Restricted Global Security equal to the
reduction in the principal amount of the Regulation S Global Security.
After the expiration of the Restricted Period (as defined below), the
certification requirement set forth in clause (iii) of the second sentence
of the above paragraph will no longer apply to such exchanges and
transfers.
If a holder of a definitive Security wishes at any time to
exchange its Security for a beneficial interest in any Global Security (or
vice versa), or to transfer its definitive Security to a person who wishes
to take delivery thereof in the form of a beneficial interest in a Global
Security (or vice versa), such Securities and beneficial interests may be
exchanged or transferred for one another only in accordance with such
procedures as are substantially consistent with the provisions of the two
preceding paragraphs (including the certification requirements intended to
ensure that such exchanges or transfers comply with Rule 144, Rule 144A or
Regulation S, as the case may be) and as may be from time to time adopted
by the Company and the Trustee.
<PAGE> 34
Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in
such Global Security and become an interest in the other Global Security
and, accordingly, will thereafter be subject to all transfer restrictions
and other procedures applicable to beneficial interests in such other
Global Security for as long as it remains such an interest.
Prior to or on the 40th day after the later of the commencement
of the offering of the Capital Securities and the Closing Date (the
"Restricted Period"), beneficial interests in a Regulation S Global
Security may only be held through Morgan Guaranty Trust Company of New
York, Brussels Office, as operator of Euroclear or Cedel or another agent
member of Euroclear and Cedel acting for and on behalf of them, unless
delivery is made through the Restricted Global Security in accordance with
the certification requirements hereof. During the Restricted Period,
interests in the Regulation S Global Security, if any, may be exchanged for
interests in the Restricted Global Security or for definitive Securities
only in accordance with the certification requirements described above.
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on written demand of and
at the expense of the Company, shall execute instruments supplied by the
Company acknowledging satisfaction and discharge of this Indenture, when
(i) either (A) all Securities theretofore authenticated and delivered
(other than (1) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (2)
Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or (B) all such Securities
not theretofore delivered to the Trustee for cancellation (1) have become
due and payable, or (2) will become due and payable at their Maturity
within one year, or (3) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the
name, and of the expense, of the Company and the Company, in the case of
(1), (2) or (3) above, has deposited or caused to be deposited with the
Trustee as funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
<PAGE> 35
delivered to the Trustee for cancellation, for principal and interest to
the date of such deposit (in the case of Securities which have become due
and payable) or to the Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (i) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Legal Defeasance.
In addition to discharge of this Indenture pursuant to Section
401, in the case of any Securities with respect to which the exact amount
described in subparagraph (a) of Section 404 can be determined at the time
of making the deposit referred to in such subparagraph (a), the Company
shall be deemed to have paid and discharged the entire indebtedness on all
the Securities as provided in this Section on and after the date the
conditions set forth in Section 404 are satisfied, and the provisions of
this Indenture with respect to the Securities shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of
Securities, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (iii) maintenance of a Paying Agent, (iv) rights of
Holders of Securities to receive, solely from the trust fund described in
subparagraph (a) of Section 404, payments of principal thereof and
interest, if any, thereon upon the original stated due dates therefor (but
not upon acceleration), (v) the rights, obligations, duties and immunities
of the Trustee hereunder, (vi) this Section 402 and (vii) the rights of the
Holders of Securities as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them) (hereinafter
called "Legal Defeasance"), and the Trustee, at the cost and expense of the
Company, shall execute proper instruments acknowledging the same.
SECTION 403. Covenant Defeasance.
In the case of any Securities with respect to which the exact
amount described in subparagraph (a) of Section 404 can be determined at
the time of making the deposit referred to in such subparagraph (a), (x)
the Company shall be released from its obligations under any covenants
specified in or pursuant to this Indenture (except as to (i) rights of
registration of transfer and exchange of Securities, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (iii) maintenance
of a Paying Agent, (iv) rights of Holders of Securities to receive, from
the Company pursuant to Section 1001, payments of principal thereof and
<PAGE> 36
interest, if any, thereon upon the original stated due dates therefor (but
not upon acceleration), (v) the rights, obligations, duties and immunities
of the Trustee hereunder and (vi) the rights of the Holders of Securities
as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them), and (y) the occurrence of any event
specified in Section 501(3) (with respect to any of the covenants specified
in or pursuant to this Indenture) shall be deemed not to be or result in an
Event of Default, in each case with respect to the Outstanding Securities
as provided in this Section on and after the date the conditions set forth
in Section 404 are satisfied (hereinafter called "Covenant Defeasance"),
and the Trustee, at the cost and expense of the Company, shall execute
proper instruments acknowledging the same. For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such covenant (to the extent so specified in the case of Section 501(3)),
whether directly or indirectly by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to
any other provision herein or in any other document, but the remainder of
this Indenture and the Securities shall be unaffected thereby.
SECTION 404. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or 403 to the Outstanding Securities:
(a) with reference to Section 402 or 403, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities (i) cash in
an amount, (ii) direct obligations of the United States of America, backed
by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest, if any, at such times and in such amounts as
will ensure the availability of cash, (iii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, or (iv) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge the principal of and interest, if any, on all Securities
on each date that such principal or interest, if any, is due and payable;
(b) in the case of Legal Defeasance under Section 402, the
Company has delivered to the Trustee an Opinion of Counsel based on the
fact that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (ii), since the date hereof,
there has been a change in the applicable U.S. federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
<PAGE> 37
Holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and Legal
Defeasance and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit and Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance under Section 403, the
Company has delivered to the Trustee an Opinion of Counsel to the effect
that, and such opinion shall confirm that, the Holders of the Securities
will not recognize income, gain or loss for federal income tax purposes as
a result of such deposit and Covenant Defeasance and will be subject to
federal income tax on the same amount in the same manner and at the same
times as would have been the case if such deposit and Covenant Defeasance
had not occurred;
(d) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under, any agreement
or instrument to which the Company is a party or by which it is bound; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with.
SECTION 405. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 401 shall be held in trust and such money and all money
from such U.S. Government Obligations shall be applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for whose payment such
money and U.S. Government Obligations has been deposited with the Trustee.
SECTION 406. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee and its officers,
directors, employees and agents against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 404 or the principal or interest received in respect of
such obligations other than any such tax, fee or other charge that by law
is for the account of the Holders of Outstanding Securities.
<PAGE> 38
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason
for such Event of Default and whether it shall be occasioned by the
provisions of Article Eleven or be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(i) failure for 30 days to pay any interest on the Securities
when due (subject to the deferral of any due date in the case of an
Extension Period); or
(ii) failure to pay any principal on the Securities when due,
whether at Maturity, upon redemption, by declaration of acceleration or
otherwise;
(iii) failure to observe or perform in any material respect any
other covenant herein that continues 90 days after written notice to the
Company from the Trustee or the holders of at least 25% in aggregate
principal amount of the Outstanding Securities; or
(iv) entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal or
State law, at appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of
substantially all of the property of the Company, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(v) (i) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or (ii) the consent by the Company
or to the entry of a decree or order for relief in respect of itself in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
<PAGE> 39
commencement of any bankruptcy or insolvency case or proceeding against the
Company, or (iii) the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or (iv) the consent by the Company to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of all or substantially all of the property of
the Company, or (v) the making by the Company of an assignment for the
benefit of creditors.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities shall have the
right to declare the principal of and the interest on all the Securities
and any other amounts payable hereunder to be due and payable immediately,
PROVIDED, HOWEVER, that if upon an Event of Default, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities fail to declare the payment of all amounts on the Securities to
be immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of Capital Securities then outstanding shall have such
right, by a notice in writing to the Company (and to the Trustee if given
by Holders or the holders of Capital Securities) and upon any such
declaration such principal and all accrued interest shall become
immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if (i) the Company has paid
or deposited with the Trustee a sum sufficient to pay (A) all overdue
interest on all Securities, (B) the principal of (and premium, if any, on)
any Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities, (C)
to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by the Securities, and (D) all sums paid
or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel; and (ii) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513. Should
the Holders of such Securities fail to annul such declaration and waive
such default, the holders of a majority in aggregate liquidation amount of
the Capital Securities then outstanding shall have such right. No such
<PAGE> 40
rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee
The Company covenants that if
(i) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(ii) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and interest, and, to the extent that payment
thereof shall be legally enforceable, interest on any overdue principal and
on any overdue interest, at the rate borne by the Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 504. Trustee may File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any
and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
<PAGE> 41
such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607. No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 505. Trustee may Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trust without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of any express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal, upon presentation of the Securities and the
notation thereon of the payment, if only partially paid, and upon surrender
thereof, if fully paid;
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable as such
Securities for principal and interest, respectively.
THIRD: To the Company, if any balance shall remain.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
<PAGE> 42
(i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities; it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest; Capital Security Holders' Rights.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional,
to receive payment of the principal of and (subject to Section 307)
interest on such Security on the Stated Maturity expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
If an Event of Default constituting the failure to pay interest
or principal on the Securities on the date such interest or principal is
otherwise payable has occurred and is continuing, then a holder of Capital
Securities may directly institute a proceeding for enforcement of payment
to such holder directly of the principal of or interest on the Securities
having a principal amount equal to the aggregate liquidation amount of the
Capital Securities as such holder on or after the respective due date
specified in the Securities. The Company may not amend this Section
without the prior written consent of the holders of all of the Capital
Securities. Notwithstanding any payment made to such holder of Capital
Securities by the Company in connection with such a Direct Action (as
<PAGE> 43
defined in the Declaration), the Company shall remain obligated to pay the
principal of or interest on the Securities held by the Trust or the
Property Trustee and the Company shall be subrogated to the rights of the
holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Company to such holder
in any Direct Action. A holder of Capital Securities will not be able to
exercise directly any other remedy available to the Holders of the
Securities.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 511. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
<PAGE> 44
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(i) such direction shall not be in conflict with any rule of law
or with this Indenture; and
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 902 and 1008 hereof, the Holders of not less
than a majority in principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past default
hereunder and its consequences, except a default
(i) in the payment of the principal of or interest on any
Security (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee); or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected;
PROVIDED, HOWEVER, that such waiver or modification to such waiver shall
not be effective until the holders of a majority in liquidation preference
of Capital Securities shall have consented to such waiver or modification
to such waiver; PROVIDED FURTHER, that if the consent of the Holder of each
of the Outstanding Securities is required, such waiver shall not be
effective until each holder of the Capital Securities shall have consented
to such waiver.
Upon any such waiver, such default shall cease to exist,
effective as of the date specified in such waiver (and effective
retroactively to the date of default, if so specified) and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED, that neither this
<PAGE> 45
Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company or the Trustee or in any suit for the enforcement
of the right to receive the principal of and interest on any Security.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE SIX
TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or indemnity satisfactory to it against such risk or liability
is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
The Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to
the Securities.
<PAGE> 46
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default known to
it hereunder as and to the extent provided by the Trust Indenture Act;
PROVIDED, HOWEVER, that except in the case of a default in the payment of
the principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of
Securities; PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(3), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default. For
purposes of this Section, the Trustee shall not be deemed to have knowledge
of a default unless a Responsible Officer of the Trustee has actual
knowledge of such default or has received written notice of such default in
the manner contemplated by Section 105.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(i) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel of its choice (and such
counsel may be counsel to the Company or any of its Affiliates and may
include any of its employees) and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
<PAGE> 47
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(viii) any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture
and the date on and/or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable to the Company
for any action taken by, or omission of, the Trustee in accordance with a
proposal included in such application on or after the date specified in
such application (which date shall not be less than five Business Days
after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date
in the case of an omission), the Trustee shall have received written
instructions in response to such application specifying the action to be
taken or omitted.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, the Trustee shall not
be accountable for the use or application by the Company of Securities or
the proceeds thereof.
<PAGE> 48
SECTION 605. Trustee and Other Agents may Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, or any
other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar, or such other
agent. Money held by the Trustee in trust hereunder shall not be invested
by the Trustee pending distribution thereof to the holders of the
Securities.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
SECTION 607. Compensation; Reimbursement; and Indemnity.
The Company, as issuer of the Securities, agrees, except as
provided in any written agreement between the Company and the
Trustee,
(i) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify each of the Trustee and any predecessor Trustee
and their respective officers, directors, employees and agents, for, and to
hold it harmless against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based on the income, revenues or
gross receipts of the Trustee) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust or the trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
<PAGE> 49
The obligations of the Company under this Section to compensate
the Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have a
lien prior to the Securities upon all property and lands held or collected
by the Trustee as such, except funds held in trust for the payment of
principal of (and premiums, if any, on) or interest on particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(iv) or Section
501(v), the expenses (including the reasonable charges and expenses of its
agents and counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture or the resignation or removal of the Trustee.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000 and has its
Corporate Trust Office in New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
<PAGE> 50
until the acceptance of appointment by the successor Trustee under Section
611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered
to the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company may remove the Trustee, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the Retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee and supersede the successor Trustee appointed by the
<PAGE> 51
Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
PROVIDED that, on request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon acceptance of appointment by a successor
Trustee as provided in this Section 611, the Company shall mail notice of
the succession of such Trustee hereunder to the Holders of the Securities
as they appear on the Security Register. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
The Trustee shall not be liable for the acts or omissions of any
successor Trustee. The Trustee shall be paid all amounts owed to it upon
its removal.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
<PAGE> 52
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not made available for
delivery, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and make available for delivery the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or becomes a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(i) semi-annually not later than June 30 and December 31 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders to the extent the Company has knowledge thereof as
of a date not more than 15 days prior to the delivery thereof and (ii) at
such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701, and
the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
<PAGE> 53
the corresponding rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any officer, director, employee or agent of either of them
shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders no later than 60 days after
May 15 of each year commencing in 1997 such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee in writing when the
Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; PROVIDED
that any such information, documents or reports required to be filed with
the Commission pursuant to Section 13(a) or 15(d) of the Securities and
Exchange Act of 1934 shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission. Delivery of such
reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable
from information contained therein, including the Company's compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
<PAGE> 54
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized
and existing under the laws of the United States of America or any State or
the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest (including any additional interest)
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(iii) for so long as Securities registered on the Securities
Register in the name of the Trust (or the Property Trustee) are
outstanding, such consolidation, merger, conveyance, transfer or lease is
permitted under the Declaration and the Guarantee and does not give rise to
any breach or violation of the Declaration or the Guarantee;
(iv) any such lease shall provide that it will remain in effect
so long as any Securities are Outstanding; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance, transfer or lease and any such supplemental indenture
complies with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with; and the
Trustee, subject to Section 601, may rely upon such Officers' Certificate
and Opinion of Counsel as conclusive evidence that such transaction
complies with this Section 801.
<PAGE> 55
SECTION 802. Successor Person Substituted.
Upon any consolidation or merger by the Company with or into any
other Person, or any conveyance, transfer or lease by the Company of its
properties and assets substantially as an entirety to any Person in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein; and, in the event of any such conveyance, transfer
or lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall,
upon receipt of a Company Order for the authentication, authenticate and
shall make available for delivery any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication pursuant to such provisions and any Securities
which such successor Person thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of
the execution hereof.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
<PAGE> 56
(ii) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon the
Company; or
(iii) to cure any ambiguity or defect, to correct or supplement
any provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, PROVIDED that such action pursuant to
this clause (iii) shall not adversely affect the interests of the Holders
of the Securities or, so long as any of the Capital Securities shall remain
outstanding, the holders of the Capital Securities; or
(iv) to comply with any requirement of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(i) change the Stated Maturity of, the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or extend the time of payment of
interest thereon (except such extension as is contemplated hereby), or
change the place of payment where, or the coin or currency in which, any
Security or interest thereon is payable, 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, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders,
(ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
<PAGE> 57
(iii) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; PROVIDED, that, so long as any of the Capital Securities remains
outstanding, no such amendment shall be made that adversely affects the
holders of the Capital Securities, and no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation
preference of the outstanding Capital Securities unless and until the
principal of and any premium on the Securities and all accrued and unpaid
interest thereon have been paid in full.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trust created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
<PAGE> 58
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated, upon receipt of a
Company Order for the authentication, and made available for delivery by
the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities
and this Indenture and comply with all other terms and conditions and
agreements contained herein.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York an office or
agency (which initially shall be the Corporate Trust Office of the Trustee)
where Securities may be presented or surrendered for registration of
transfer or exchange, where Securities may be surrendered for conversion
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in location,
of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies in the United States where the Securities may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the United States for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
<PAGE> 59
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on, or at the option of the Company, before each due date of the
principal of or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee in writing of its action or failure so to act.
In such case the Company shall not invest the amount so segregated and held
in trust pending the distribution thereof.
Whenever the Company shall have one or more Paying Agents, it
will, on or prior to each due date of the principal of or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee in writing of its action or failure so to act; PROVIDED,
HOWEVER, that any such deposit on a due date shall be initiated prior to
12:00 noon (New York time) on a Business Day prior to the due date in
same-day funds.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in the trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held
by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal or interest
that has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust, if such principal or interest has not been claimed by the Holder of
the Security upon which such payments are due within one year of the date
such principal and interest became due and payable; and the Holder of such
<PAGE> 60
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee and its
officers, directors, employees and agents or such Paying Agent and its
officers, directors, employees and agents with respect to such trust money,
and all liability of the Company and its officers, directors, employees and
agents as trustee thereof, shall thereupon cease.
SECTION 1004. Statements by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the material terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such right
or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders and, while any Capital Securities are outstanding, the holders of
the Capital Securities.
SECTION 1006. Maintenance of Properties.
The Company will cause all of its properties used or useful in
the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements and improvements thereof, all as
in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance
of any such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
<PAGE> 61
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income, profits or property of the Company or
any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary that comprise more than 10% of the assets of
the Company and its Subsidiaries, taken as a whole; PROVIDED, HOWEVER,
that the Company shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified or as contemplated by Section 301
for Securities, the Company may, with respect to the Securities, omit in
any particular instance to comply with any term, provision or condition set
forth in any covenant provided pursuant to Section 901(ii) for the benefit
of the Holders if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no
waiver shall extend to or affect such term, provision or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 1009. Payment of the Trust's Costs and Expenses.
Since the Trust is being formed solely to facilitate an
investment in the Securities, the Company, as borrower, hereby covenants to
pay all debts and obligations (other than with respect to the Capital
Securities and Common Securities) and all costs and expenses of the Trust
(including, but not limited to, all costs and expenses relating to the
organization of the Trust, the fees and expenses of the Trustees and their
agents and counsel and all costs and expenses relating to the operation of
the Trust) and to pay any and all taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
imposed on the Trust by the United States, or any other taxing authority,
so that the net amounts received and retained by the Trust and the Property
Trustee after paying such expenses will be equal to the amounts the Trust
and the Property Trustee would have received had no such costs or expenses
been incurred by or imposed on the Trust, provided that the Trust is the
holder of the Junior Subordinated Debentures. The foregoing obligations of
<PAGE> 62
the Company are for the benefit of, and shall be enforceable by, any person
to whom any such debts, obligations, costs, expenses and taxes are owed
(each, a "Creditor") whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the Company
directly against the Company, and the Company irrevocably waives any right
or remedy to require that any such Creditor take any action against the
Trust or any other person before proceeding against the Company. The
Company shall execute such additional agreements as may be necessary or
desirable to give full effect to the foregoing.
SECTION 1010. Restrictions on Payments and Distributions.
The Company will not, and will 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, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of
the Company that rank PARI PASSU with or junior in interest to the
Securities or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary if such guarantee
ranks PARI PASSU with or junior in interest to the Securities (other than
(A) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any one or
more employees, officers, directors or consultants or in connection with a
dividend reinvestment or stockholder stock purchase plan, (B) as a result
of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
other class or series of the Company's capital stock or of any class or
series of the Company's indebtedness for any class or series of the
Company's capital stock, (C) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (D) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto or (E) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options, or other rights is
the same stock as that on which the dividend is being paid or ranks PARI
PASSU with or junior to such stock) if at such time (x) there shall have
occurred any event of which the Company has actual knowledge that (1) with
the giving of notice or the lapse of time, or both, would constitute an
Event of Default and (2) in respect of which the Company shall not have
taken reasonable steps to cure, (y) the Company shall be in default with
respect to its payment of any obligations under the Guarantee or (z) the
Company shall have given notice of its election of an Extension Period as
provided herein and shall not have rescinded such notice, or such Extension
<PAGE> 63
Period, or any extension thereof, shall be continuing. For purposes of
this Section 1010, "actual knowledge" means actual knowledge of the
Chairman, the Vice Chairman the Chief Financial Officer and the Controller
of the Company.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 1101. Securities Subordinate to Indebtedness.
The Company covenants and agrees, and each Holder of a Security,
by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article (subject to
Article Four), the payment of the principal of and interest on each and all
of the Securities are hereby expressly made subordinate and subject in
right of payment to the prior payment in full in cash of all Indebtedness.
The provisions of this Article Eleven are made for the benefit of
the holders of Indebtedness and such holders are made obligees hereunder
and any one or more of them may enforce such provisions. Holders of
Indebtedness need not prove reliance on the subordination provisions
hereof.
SECTION 1102. Default on Indebtedness.
In the event and during the continuation of any default in the
payment of principal, premium, interest or any other payment due on any
Indebtedness, or in the event that any event of default with respect to any
Indebtedness shall have occurred and be continuing and shall have resulted
in such Indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable (unless
and until such event of default shall have been cured or waived or shall
have ceased to exist and such acceleration shall have been rescinded or
annulled) or in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event of default, then no
payment shall be made by the Company with respect to the principal
(including redemption payments) of, or interest on, the Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is
prohibited by the preceding paragraph of this Section 1102, such payment
shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant
to which any of such Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the
<PAGE> 64
Indebtedness (or their representative or representatives or a trustee)
notify the Trustee in writing within 90 days of such payment of the amounts
then due and owing on the Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Indebtedness.
SECTION 1103. Prior Payment of Indebtedness Upon Acceleration of
Securities.
In the event that the Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of the
Indebtedness outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full of all amounts then
due on or in respect of such Indebtedness (including any amounts due upon
acceleration), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of
Indebtedness, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character, whether in cash,
properties or securities, by the Company on account of the principal of or
interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; PROVIDED,
HOWEVER, that holders of Indebtedness shall not be entitled to receive
payment of any such amounts to the extent that such holders would be
required by the subordination provisions of such Indebtedness to pay such
amounts over to the obligees on trade accounts payable or other liabilities
arising in the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is
prohibited by the preceding paragraph of this Section 1103, such payment
shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant
to which any of such Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the
Indebtedness (or their representative or representatives or a trustee)
notify the Trustee in writing within 90 days of such payment of the amounts
then due and owing on the Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Indebtedness.
SECTION 1104. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all principal
of, and premium, if any, and interest due or to become due upon all
Indebtedness (including interest after the commencement of any bankruptcy,
<PAGE> 65
insolvency, receivership or other proceedings at the rate specified in the
applicable Indebtedness, whether or not such interest is an allowable claim
in any such proceeding) shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is
made on account of the principal or interest on the Securities; and upon
any such dissolution or winding-up or liquidation or reorganization any
payment by the Company, or distribution of substantially all of the assets
of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article Eleven, shall be paid
by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by
the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Indebtedness (pro rata
to such holders on the basis of the respective amounts of Indebtedness held
by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay
all Indebtedness in full (including interest after the commencement of any
bankruptcy, insolvency, receivership or other proceedings at the rate
specified in the applicable Indebtedness, whether or not such interest is
in an allowable claim in any such proceeding) or to provide for such
payment in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of Indebtedness,
before any payment or distribution is made to the Holders of Securities or
to the Trustee or the Property Trustee on behalf of the Holders of Capital
Securities; PROVIDED, HOWEVER, that such holders of Indebtedness shall not
be entitled to receive payment of any such amounts to the extent that such
holders would be required by the subordination provisions of such
Indebtedness to pay such amounts over to the obligees on trade accounts
payable or other liabilities arising in the ordinary course of the
Company's business.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the Holders of the Securities before all
Indebtedness is paid in full (including interest after commencement of any
bankruptcy, insolvency, receivership or other proceedings at the rate
specified in the applicable Indebtedness, whether or not such interest is
an allowable claim in any such proceeding), or provision is made for such
payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
<PAGE> 66
application to the payment of all Indebtedness remaining unpaid to the
extent necessary to pay all Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Indebtedness.
Any holder of Indebtedness may file any proof of claim or similar
instrument on behalf of the Trustee and the Holders if such instrument has
not been filed by the date which is 30 days prior to the date specified for
filing thereof.
For purposes of this Article Eleven, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Eleven with respect to the Securities to the payment of all
Indebtedness that may at the time be outstanding, PROVIDED, HOWEVER, that
(i) the Indebtedness is assumed by the new corporation, if any, resulting
from any such reorganization or readjustment, and (ii) the rights of the
holders of the Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an entirety,
to another corporation upon the terms and conditions provided for in
Article Eight hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 1104 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Eight
hereof. Nothing in Section 1103 or in this Section 1104 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1105. Subrogation.
Subject to the payment in full of all Indebtedness to the extent
provided in Sections 1103 and 1104, the rights of the Holders of the
Securities shall be subrogated to the rights of the holders of Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to the Indebtedness until the principal of (and premium,
if any) and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders
of the Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Eleven, shall, as between the Company, its
creditors other than holders of Indebtedness, and the Holders of the
Securities, be deemed to be a payment by the Company to or on account of
the Indebtedness. It is understood that the provisions of this Article
Eleven are and are intended solely for the purposes of defining the
<PAGE> 67
relative rights of the Holders of the Securities, on the one hand, and the
holders of the Indebtedness on the other hand.
Nothing contained in this Article Eleven or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of
(and premium, if any) and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of the Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under
this Article Eleven of the holders of Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Eleven, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities, shall be entitled to
rely conclusively upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
the Securities, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of the Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Eleven.
SECTION 1106. Trustee to Effectuate Subordination.
Each Holder of a Security by acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Eleven and appoints the Trustee such Holder's attorney-in-fact for
any and all such purposes.
SECTION 1107. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Eleven.
Notwithstanding the provisions of this Article Eleven or any other
<PAGE> 68
provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Eleven, unless and until a
Responsible Officer of the Trustee shall have received written notice
thereof at the Corporate Trust Office of the Trustee from the Company or a
holder or holders of Indebtedness or from any trustee therefor; and before
the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that
no such facts exist; PROVIDED, HOWEVER, that if the Trustee shall not have
received the notice provided for in this Section 1107 at least three
Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any
Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and
to apply the same to the purposes for which they were received, and shall
not be affected by any notice to the contrary that may be received by it
within three Business Days prior to such date.
The Trustee, subject to the provisions of Section 601, shall be
entitled to rely conclusively on the delivery to it of a written notice by
a Person representing himself to be a holder of Indebtedness (or a trustee
on behalf of such holder) to establish that such notice has been given by a
holder of Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Indebtedness to participate in any payment or distribution
pursuant to this Article Eleven, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Eleven, and
if such evidence is not furnished the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1108. Rights of the Trustee; Holders of Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Eleven in respect of any Indebtedness
at any time held by it, to the same extent as any other holder of
Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
With respect to the holders of Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eleven, and no
<PAGE> 69
implied covenants or obligations with respect to the holders of
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Indebtedness and, subject to the provisions of Section 601, the Trustee
shall not be liable to any holder of Indebtedness if it shall pay over or
deliver to holders of Securities, the Company or any other Person money or
assets to which any holder of Indebtedness shall be entitled by virtue of
this Article Eleven or otherwise.
SECTION 1109. Subordination May Not Be Impaired.
No right of any present or future holder of any Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any
such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities
to the holders of Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Indebtedness or otherwise amend or supplement in any
manner Indebtedness or any instrument evidencing the same or any agreement
under which Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Indebtedness; (iii) release any Person liable in any manner for the
collection of Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Optional Redemption; Conditions to Optional Redemption.
At any time on or after February 1, 2007, the Company shall have
the right, subject to the last paragraph of Section 307 and to the receipt
of any necessary prior approval of the Federal Reserve, to redeem the
Securities, in whole or in part, from time to time, at a Redemption Price
equal to 100% of the principal amount of Securities to be redeemed plus any
<PAGE> 70
accrued but unpaid interest (including any Additional Interest) to the
Redemption Date.
If a Special Event shall occur and be continuing, the Company
shall have the right, subject to the last paragraph of this Section 1201
and to the receipt of any necessary prior approval of the Federal Reserve,
to redeem within 120 days following the occurrence of the Special Event,
upon not less than 30 days nor more than 60 days notice, the Securities in
whole, but not in part, at a Redemption Price equal to 100% of the
principal amount of Securities then outstanding plus accrued but unpaid
interest (including any Additional Interest) to the Redemption Date.
For so long as the Trust is the Holder of all Securities
Outstanding, the proceeds of any redemption described in this Section 1201
shall be used by the Trust to redeem Common Securities and Capital
Securities in accordance with their terms. The Company shall not redeem
the Securities in part unless all accrued and unpaid interest (including
any Additional Interest) has been paid in full on all Securities
outstanding for all quarterly interest periods terminating on or prior to
the Redemption Date.
SECTION 1202. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by Section 1201, shall be made in accordance with such provision
and this Article.
SECTION 1203. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities pursuant to
Section 1201 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45
days and no more than 60 days prior to the Redemption Date fixed by the
Company, notify the Trustee in writing of such Redemption Date and of the
principal amount of Securities to be redeemed and provide a copy of the
notice of redemption given to Holders of Securities to be redeemed pursuant
to Section 1205.
SECTION 1204. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected by lot (or such other method of selection as the
Trustee may customarily employ) not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption.
<PAGE> 71
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal amount of
the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 (provided that the Trustee shall itself
have received notice not less than 45 days prior to the Redemption Date)
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP number) and shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(iv) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
<PAGE> 72
SECTION 1206. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest (including any Additional Interest) on, all the Securities which
are to be redeemed on that date; PROVIDED, HOWEVER, that any such deposit
on a Redemption Date shall be initiated prior to 12:00 noon (New York time)
in same-day funds.
SECTION 1207. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest (including any Additional Interest)) such
Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.
SECTION 1208. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder therefor or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall, upon receipt of a Company
Order for the authentication, authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
<PAGE> 73
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<PAGE> 74
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
OLD KENT FINANCIAL CORPORATION
By:__________________________________________
Name:
Title:
BANKERS TRUST COMPANY, as Trustee
By:__________________________________________
Name:
Title:
<PAGE>
EXHIBIT A
OLD KENT FINANCIAL CORPORATION
Floating Rate Junior Subordinated Debenture due 2027
$___________
No. __
CUSIP No. ___________
OLD KENT FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to Bankers Trust Company, as Trustee, or registered assigns, the
principal sum of ____________________ ($________) on February 1, 2027, and
to pay interest on said principal sum from January 31, 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 the 1st day of
February, May, August and November of each year, commencing May 1, 1997, at
a variable per annum rate equal to LIBOR (as defined in the Indenture) plus
.80% until the principal hereof shall have become due and payable (plus
Additional Interest, if any), and on any overdue principal 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 same
rate per annum. The amount of interest payable for any period will be
computed on the actual number of days elapsed and a year of 360 days. 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
actual number of days elapsed in such 90-day quarterly period. In the
event that any date on which interest is payable on this Security is not a
Business Day, then a payment of the 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 falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on the date the payment was originally payable.
A "Business Day" shall mean any day other than a Saturday or a Sunday or a
day on which banking institutions in the City of New York and Grand Rapids,
Michigan are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Trustee, or the
principal office of the Property Trustee under the Declaration, is closed
for business. 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 the Securities (or one or
more Predecessor Securities, as defined in the Indenture) is registered at
the close of business on the Regular Record Date for such interest
installment, which shall be the first day of the month of such Interest
Payment Date. Any such interest installment not so punctually paid or duly
<PAGE>
provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name the
Securities for one or more Predecessor Securities is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company shall have the right at any time during the term of
this Security, from time to time, so long as no Event of Default has
occurred or is continuing to defer payment of interest on such Security for
up to 20 quarterly periods (an "Extension Period"), provided that no
Extension Period may extend past the Maturity of this Security. There may
be multiple Extension Periods of varying lengths during the term of this
Security. At the end of each Extension Period, if any, the Company shall
pay all interest then accrued and unpaid, together with interest thereon,
compounded quarterly at the rate specified on this Security to the extent
permitted by applicable law. During any such Extension Period, the Company
may not, and may not permit any subsidiary of the Company 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, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that
rank PARI PASSU with or junior in interest to the Securities or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks PARI
PASSU or junior in interest to the Securities (other than (A) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants or in connection with a dividend reinvestment or
stockholder stock purchase plan, (B) as a result of an exchange or
conversion of any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any other class or series
of the Company's capital stock or of any class or series of the Company's
indebtedness for any class or series of the Company's capital stock, (C)
the purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (D) any declaration of
a dividend in connection with any shareholder's rights plan, or the
issuance of rights, stock or other property under any shareholder's rights
plan, or the redemption or repurchase of rights pursuant thereto or (E) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants,
options, or other rights is the same stock as that on which the dividend is
-2-
<PAGE>
being paid or ranks PARI PASSU with or junior to such stock). Prior to the
termination of any such Extension Period, the Company may further extend
the interest payment period, provided that no Extension Period may exceed
20 consecutive quarterly periods or extend beyond the Stated Maturity of
the Securities. Upon the termination of any such Extension Period and the
payment of all amounts then due on any Interest Payment Date, the Company
may elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee
notice of its election of such Extension Period at least one Business Day
prior to the record date for the related interest payment.
Payment of the principal of and interest on this Security will be
made at the office or agency of the Paying Agent maintained for that
purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts; PROVIDED, HOWEVER, that at the option of the Company,
payment of interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds at such
place and to such account as may be designated by the Person entitled
thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (i) agrees to and shall be
bound by such provisions, (ii) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided and (iii) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of
Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the
Indenture summarized on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
-3-
<PAGE>
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated: ________, __
OLD KENT FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
-4-
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of Securities of
Old Kent Financial Corporation (the "Company"), designated as its Floating
Rate Junior Subordinated Debentures due 2027 (herein called the
"Securities"), issued under an Indenture, dated as of January 31, 1997
(herein called the "Indenture"), between the Company and Bankers Trust
Company, a New York banking corporation, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
At any time on or after February 1, 2007, the Company shall have
the right, subject to the terms and conditions of Article Twelve of the
Indenture, to redeem this Security at the option of the Company, in whole
or in part, at a Redemption Price equal to the principal amount so redeemed
plus accrued but unpaid interest (including any Additional Interest) to the
Redemption Date.
If a Special Event as defined in Article Twelve of the Indenture
shall occur and be continuing, the Company shall have the right, subject to
the terms and conditions of Article Twelve of the Indenture, to redeem this
Security at the option of the Company, without premium or penalty, in whole
but not in part, at a Redemption Price equal to 100% of the principal
amount so redeemed plus accrued but unpaid interest (including any
Additional Interest) to the Redemption Date. Any redemption pursuant to
this paragraph will be made upon not less than 30 nor more than 60 days
notice, at the Redemption Price. If the Securities are only partially
redeemed by the Company, the Securities will be redeemed by lot (or such
other method of selection as the Trustee may customarily employ). In the
event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for satisfaction and discharge
or legal defeasance of the entire indebtedness of this Security and for the
defeasance of certain covenants under the Indenture at any time upon
-5-
<PAGE>
compliance by the Company with certain conditions set forth in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than a majority in
principal amount of the Outstanding Securities affected by such
modification, to modify the Indenture in a manner affecting the rights of
the Holders of the Securities; PROVIDED that so such modification may,
without the consent of the Holder of each Outstanding Security affected
thereby, (i) except to the extent permitted and subject to the conditions
set forth in the Indenture with respect to the extension of the Maturity of
the Security, change the maturity of, the principal of, or any installment
of interest on, the Security or reduce the principal amount thereof, or the
rate of payment of interest thereon, or change the place of payment where,
or the coin or currency in which, this Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of such
payment on or after the Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or modify the provisions of the Indenture
with respect to the subordination of the Securities in a manner adverse to
the Holders, (ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for such
supplemental Indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of the Indenture or certain
defaults hereunder and their consequences) provided for in the Indenture or
(iii) modify any of the provisions of Section 513, Section 902 or Section
1008 of the Indenture, 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 Holder of each Outstanding Security affected
thereby, PROVIDED that, so long as any of the Capital Securities remains
outstanding, no such amendment shall be made that adversely affects the
holders of the Capital Securities, and no termination of the Indenture
shall occur, and no waiver of an Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation
preference of the outstanding Capital Securities unless and until the
principal of and any premium on the Securities and all accrued and unpaid
interest thereon have been paid in full.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York
-6-
<PAGE>
(which initially shall be the Corporate Trust Office of the Trustee), duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Securities 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 therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
THE SECURITIES AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
This is one of the Securities referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:__________________________________________
Authorized Signatory
Dated: ________ __, ____
-7-
<PAGE>
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
three years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such
Security (or any predecessor thereto) (the "Resale Restriction Termination
Date"), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box
(3), (4) or (6) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in its sole discretion,
such written legal opinions, certifications (including an investment letter
in the case of box (3)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer
-8-
<PAGE>
of registration set forth herein and in Section 315 of the Indenture shall
have been satisfied.
Dated: __________________ Signed:_________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee: ___________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
Dated: ________ _____________________________________________
NOTICE: To be executed by an executive
officer
-9-
<PAGE>
EXHIBIT 4.9
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of January 31, 1997
Among
OLD KENT CAPITAL TRUST I
and
LEHMAN BROTHERS INC.
as Initial Purchaser
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Securities Subject to This Agreement. . . . . . . . . . . . . . . . 3
3. Registered Exchange Offer . . . . . . . . . . . . . . . . . . . . . 3
4. Shelf Registration. . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Additional Interest and Additional Distributions Under Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . 7
7. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . 14
8. Indemnification and Contribution. . . . . . . . . . . . . . . . . . 15
9. Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10. Participation in Underwritten Registrations . . . . . . . . . . . . 18
11. Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . 18
12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
<PAGE>
This Registration Rights Agreement (this "Agreement") is made and
entered into as of January 31, 1997 by and among Old Kent Capital Trust I,
a Delaware statutory business trust (the "Trust"), Old Kent Financial
Corporation, a Michigan corporation ("the Company") and Lehman Brothers
Inc. (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 31, 1997, among the Company, the Trust and
the Initial Purchaser (the "Purchase Agreement"), and any additional
purchase agreement between such parties, in each case which provides for
the sale by the Trust to the Initial Purchaser of the Trust's Floating Rate
Subordinated Capital Income Securities, liquidation amount $1,000 per
security (the "Capital Securities"). The Company will be the owner of all
of the beneficial ownership interest represented by the common securities
(the "Common Securities") of the Trust. The Capital Securities and the
Common Securities will be guaranteed by a guarantee (the "Guarantee") by
the Company, to the extent of funds held by the Trust. Concurrently with
the issuance of the Capital Securities, the Guarantee and the Common
Securities, the Trust will invest the proceeds of each thereof in the
Company's Floating Rate Junior Subordinated Debentures due 2027 (the
"Junior Subordinated Debentures" and, together with the Capital Securities
and the Guarantee, the "Securities"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Trust and the Company
have agreed to provide the registration rights set forth in this Agreement
for the benefit of the Initial Purchaser and its direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a
condition to the Initial Purchaser's obligations to purchase the Capital
Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
ADDITIONAL INTEREST: as defined in Section 5(a) hereof.
ADDITIONAL DISTRIBUTIONS: as defined in Section 5(a)
hereof.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CLOSING DATE: The date on which the Securities were sold.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of
(i) the filing and effectiveness under the Securities Act of the
<PAGE> 2
Exchange Offer Registration Statement relating to the New Securities
to be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by
the Company and the Trust of the New Securities in the same aggregate
principal amount as the aggregate principal amount of Transfer
Restricted Securities that were tendered by Holders thereof pursuant
to the Exchange Offer.
DECLARATION: The Amended and Restated Declaration of Trust,
dated as of January 31, 1997, among Bankers Trust Company, as Property
Trustee, Bankers Trust Company (Delaware), as Delaware Trustee, and
the Regular Trustees named therein, pursuant to which the Capital
Securities are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
DISTRIBUTION: As defined in the Declaration.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended.
EXCHANGE OFFER: The registration by the Company and the
Trust under the Securities Act of the New Securities pursuant to a
Registration Statement pursuant to which the Company and the Trust
offer the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Securities in an aggregate
amount equal to the aggregate amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the Prospectus
which forms a part thereof.
EXEMPT RESALES: The transactions in which the Initial
Purchaser propose to sell the Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act and to certain non-"U.S. persons" in "offshore
transactions," as such terms are defined in Regulation S under the
Securities Act.
GUARANTEE AGREEMENT: The Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
Guarantee Trustee, pursuant to which the Guarantee is being issued, as
amended or supplemented from time to time in accordance with the terms
thereof.
<PAGE> 3
HOLDERS: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of January 31, 1997,
between the Company and Bankers Trust Company, as trustee (the
"Trustee"), pursuant to which the Junior Subordinated Debentures are
to be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.
INITIAL PURCHASER: As defined in the preamble hereto.
NASD: National Association of Securities Dealers, Inc.
NEW JUNIOR SUBORDINATED DEBENTURES: The Company's Junior
Subordinated Debentures to be issued pursuant to the Indenture in the
Exchange Offer.
NEW SECURITIES: The Securities to be issued pursuant to the
Indenture, the Declaration and the Guarantee Agreement in the Exchange
Offer.
PERSON: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Trust relating to (i) an offering of New Securities
pursuant to an Exchange Offer or (ii) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this
Agreement, in either case, including the Prospectus included therein,
all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
SECURITIES ACT: The Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939, as amended.
<PAGE> 4
TRANSFER RESTRICTED SECURITIES: Each Security, until the
earliest to occur of (i) the date on which such Security has been
exchanged by a person other than a Broker-Dealer for New Securities in
the Exchange Offer, (ii) following the exchange by a Broker-Dealer in
the Exchange Offer of such Security for one or more New Securities,
the date on which such New Securities are sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale
a copy of the prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with
the Shelf Registration Statement or (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the
Securities Act;
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A
registration in which securities of the Company and the Trust are sold
to an underwriter for reoffering to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) TRANSFER RESTRICTED SECURITIES. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person beneficially owns Transfer Restricted
Securities.
3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with), the Company and
the Trust shall (i) cause to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 150
days after the Closing Date, a Registration Statement under the
Securities Act relating to the New Securities and the Exchange Offer,
(ii) use their respective best efforts to cause such Registration
Statement to become effective at the earliest possible time, but in no
event later than 180 days after the Closing Date, (iii) in connection
with the foregoing, file (A) all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to
Rule 430A under the Securities Act and (C) cause all necessary filings
in connection with the registration and qualification of the New
Securities to be made under the Blue Sky laws of such jurisdictions in
<PAGE> 5
the United States as are necessary to permit Consummation of the
Exchange Offer, and (iv) unless the Exchange Offer would not be
permitted by applicable law or Commission policy, the Company will
commence the Exchange Offer and use its best efforts to issue on or
prior to 30 business days after the date on which such Registration
Statement was declared effective by the Commission, New Securities in
exchange for all Securities tendered prior thereto in the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the New Securities to be offered in exchange for the
Transfer Restricted Securities and to permit resales of New Securities
held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Trust shall use their best efforts
to cause the Exchange Offer Registration Statement to be effective
continuously and keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; PROVIDED, HOWEVER,
that in no event shall such period be less than 20 business days. The
Company and the Trust shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other
than the New Securities shall be included in the Exchange Offer
Registration Statement. The Company and the Trust shall use its best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 business days
thereafter.
(c) The Company and the Trust shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the
Exchange Offer Registration Statement that any Broker-Dealer who holds
Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making activities
or other trading activities (other than Transfer Restricted Securities
acquired directly from the Company and the Trust), may exchange such
Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of
the New Securities received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the
Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of New
Securities held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy announced
after the date of this Agreement.
<PAGE> 6
The Company and the Trust shall use their respective best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c)
below to the extent necessary to ensure that it is available for resales of
New Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on
which the Exchange Offer Registration Statement is declared effective.
The Company and the Trust shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request
at any time during such 180-day period in order to facilitate such resales.
4. SHELF REGISTRATION.
(a) SHELF REGISTRATION. If (i) the Company and the Trust
are not required to file an Exchange Offer Registration Statement or
to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), (ii) the
Company has received an opinion of counsel, rendered by a law firm
having a nationally recognized tax practice, to the effect that, as a
result of the consummation of the Exchange Offer there is more than an
insubstantial risk that (A) the Trust would be subject to United
States federal income tax with respect to income received or accrued
on the Junior Subordinated Debentures or New Junior Subordinated
Debentures, (B) interest payable by the Company on such Junior
Subordinated Debentures or New Junior Subordinated Debentures would
not be deductible by the Company, in whole or in part, for United
States federal income tax purposes or (C) the Trust would be subject
to more than a de minimis amount of other taxes, duties or other
governmental charges or (iii) if any Holder of Transfer Restricted
Securities that is a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) (A) is prohibited as a result of
change in applicable law or Commission policy from participating in
the Exchange Offer, or (B) may not resell the New Securities acquired
by it in the Exchange Offer to the public without delivering a
prospectus and, as a result of a change in law or Commission policy,
the Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder or (C)
is a Broker-Dealer and holds Securities acquired directly from the
Trust or one of its affiliates, and such holder notifies the Company
and the Trust on or before 20th business day following the
Consummation of the Exchange Offer of such holder's exercise of such
right, then the Trust and the Company shall use their respective best
efforts to:
<PAGE> 7
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act,
which may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1) the
150th day after the date on which the Trust and the Company
determines that they are not required to file the Exchange
Offer Registration Statement or (2) the 150th day after the
date on which the Trust and the Company receive notice from
a Holder of Transfer Restricted Securities as contemplated
by clause (iii) above (such earliest date being the "Shelf
Filing Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities
the Holders of which shall have provided the information
required pursuant to Section 4(b) hereof PROVIDED that, in
the event of a Shelf Registration due solely to notice
provided by a Holder of Transfer Restricted Securities in
accordance with clause (iii) above, the Shelf Registration
shall cover only resales of Transfer Restricted Securities
by all such Holders; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 180th
day after the Shelf Filing Deadline.
The Trust and the Company shall use their respective best efforts to
keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Sections
6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Securities by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period ending
on the third anniversary of the Closing Date.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN
CONNECTION WITH THE SHELF REGISTRATION STATEMENT. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Trust and
the Company in writing, within 20 business days after receipt of a
request therefor, such information as the Trust and the Company may
reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to
Additional Distributions pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such
<PAGE> 8
reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to
the Trust and the Company all information required to be disclosed in
order to make the information previously furnished to the Trust and
the Company by such Holder not materially misleading.
5. ADDITIONAL INTEREST AND ADDITIONAL DISTRIBUTIONS UNDER
CERTAIN CIRCUMSTANCES.
(a) If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date
specified for such filing in this Agreement, (ii) any of such Registration
Statements has not been declared effective by the Commission on or prior to
the date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been
Consummated within 30 business days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable
for its intended purpose (other than for any reason set forth in Section
6(c)(iii)(D) hereof) without being succeeded within two business days by a
post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"),
additional interest (the "Additional Interest") shall become payable in
respect of the Junior Subordinated Debentures (including in respect of
amounts accruing during any Extension Period (as defined in the Indenture))
and corresponding additional Distributions (the "Additional Distributions")
shall become payable to each Holder of Capital Securities (in its capacity
as such and not in its capacity as an indirect holder of a pro rata share
of the Junior Subordinated Debentures) with respect to the first 90-day
period immediately following the occurrence of such Registration Default in
an amount equal to $.25 per week per $1,000 liquidation amount of Capital
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of Additional Interest, and the
corresponding amount of Additional Distributions payable to any Holder of
Capital Securities shall increase by an additional $.05 per week per $1,000
in principal amount of Capital Securities held by such Holder with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Additional Interest (and corresponding
Additional Distributions) of $.50 per week per $1,000 liquidation amount of
Capital Securities. All accrued Additional Interest (and corresponding
Additional Distributions) shall be paid to Holders by the Trust and the
Company by wire transfer of immediately available funds or by federal funds
check on the last day of each such 90-day period. Following the cure of
all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of Additional Interest (and corresponding
Additional Distributions) with respect to such Transfer Restricted
Securities will cease.
<PAGE> 9
All obligations of the Trust and the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations
with respect to such Transfer Restricted Security shall have been satisfied
in full.
(b) The Trust and the Company shall notify the Property Trustee
within one business day after each and every date on which an event occurs
in respect of which Additional Distributions are required to be paid (an
"Event Date"). Additional Distributions shall be paid by depositing
Additional Interest with the Property Trustee, in trust, for the benefit of
the Holders thereof, on or before the applicable Interest Payment Date
(whether or not any payment other than Additional Distributions is payable
on the Capital Securities), immediately available funds in sums sufficient
to pay the Additional Distributions then due to Holders of Transfer
Restricted Securities with respect to which the Property Trustee serves.
Each obligation to pay Additional Interest and Additional Distributions
shall be deemed to accrue from the applicable date of the occurrence of the
Registration Default.
6. REGISTRATION PROCEDURES.
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection
with the Exchange Offer, the Trust and the Company shall comply with
all of the provisions of Section 6(c) below, shall use their best
efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with all
of the following provisions:
(i) If in the reasonable opinion of counsel to the
Trust and the Company there is a question as to whether the
Exchange Offer is permitted by applicable law, the Trust and the
Company hereby agree to seek a no-action letter from the
Commission allowing the Trust and the Company to Consummate an
Exchange Offer for such Securities. The Trust and the Company
hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission
policy. The Trust and the Company hereby agree, however, to (A)
participate in telephonic conferences with the Commission, (B)
deliver to the Commission staff an analysis prepared by counsel
to the Trust and the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursue a resolution
(which need not be favorable) by the Commission staff of such
submission.
<PAGE> 10
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon the
request of the Trust or the Company, prior to the Consummation
thereof, a written representation to the Trust or the Company
(which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that
(A) it is not an affiliate of the Trust or the Company, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the New Securities to be issued in the Exchange
Offer and (C) it is acquiring the New Securities in its ordinary
course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Company's
and the Trust's preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange
Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission
enunciated in MORGAN STANLEY AND CO., INC. (available June 5,
1991) and EXXON CAPITAL HOLDINGS CORPORATION (available May 13,
1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if
the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the
Trust or the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Trust shall provide a
supplemental letter to the Commission (A) stating that the
Company and the Trust are registering the Exchange Offer in
reliance on the position of the Commission enunciated in EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988), MORGAN
STANLEY AND CO., INC. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i)
above and (B) including a representation that the Company and the
Trust have not entered into any arrangement or understanding with
any Person to distribute the New Securities to be received in the
Exchange Offer and that, to the best of the Company's and the
Trust's information and belief, based only on written
<PAGE> 11
representations received under clause (ii) above, that each
Holder participating in the Exchange Offer is acquiring the New
Securities in its ordinary course of business and has no
arrangement or understanding with any Person to participate in
the distribution of the New Securities received in the Exchange
Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the
Shelf Registration Statement, if any, the Company and the Trust shall
comply with all the provisions of Section 6(c) below and shall use
their best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant
thereto the Company and the Trust will as expeditiously as possible
prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof.
(c) GENERAL PROVISIONS. In connection with any
Registration Statement and any Prospectus required by this Agreement
to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the
related Prospectus required to permit resales of Securities by Broker-
Dealers), the Company and the Trust shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4
of this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company and the Trust shall file
promptly an appropriate amendment to such Registration Statement,
in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use their
best efforts to cause such amendment to be declared effective and
such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement
effective for the applicable period set forth in Section 3 or 4
<PAGE> 12
hereof, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by
the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm
such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Securities Act or of the
suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, and (D) of the existence of
any fact or the happening of any event known to the Company,
after due inquiry, that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to
or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading; PROVIDED
that the Company shall not be required to disclose the nature or
substance of any such fact or event as long as it is acting in
good faith. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Trust and the Company
shall use their best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
<PAGE> 13
(iv) furnish to each of the selling or exchanging
Holders and each of the underwriter(s), if any, before filing
with the Commission, copies of any Shelf Registration Statement
or any Prospectus included therein or any amendments or
supplements to any such Shelf Registration Statement or
Prospectus (excluding all documents incorporated by reference
after the initial filing of such Registration Statement), which
documents will be subject to the review of such Holders and
underwriter(s), if any, for a period of at least five business
days, and the Trust and the Company will not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(excluding all documents incorporated by reference) to which a
selling Holder of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall
reasonably object in writing within five business days after the
receipt thereof;
(v) promptly after the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document, upon request, to the
selling Holders and to the underwriter(s), if any, and, upon
request, make the Trust's and the Company's representatives
available for discussion of such document and other customary due
diligence matters;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any of
the underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Trust and the Company
and cause the Trust's and the Company's officers, directors,
managers and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant
for the purpose of performing customary due diligence in
connection with such Registration Statement subsequent to the
filing thereof and prior to its effectiveness; provided however,
that the Company may decline to provide any requested information
which it reasonably believes, upon advice of outside counsel, to
be privileged, confidential or subject to legal or contractual
restrictions on disclosure; and provided further, that the
Company may require each Holder, underwriter, attorney or
accountant to sign a confidentiality agreement in form and
substance acceptable to the Company.
<PAGE> 14
(vii) if requested by any selling Holders under the
Shelf Registration Statement or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Trust and the Company are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities covered
by the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Securities covered thereby or the
underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and
of each amendment thereto, including all exhibits and, upon
request, all documents and exhibits incorporated by reference
therein;
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Trust and the Company hereby consent to the use of
the Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
(xi) enter into such customary agreements (including an
underwriting agreement), and make such customary representations
and warranties, and take all such other customary actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to
<PAGE> 15
such extent as may be reasonably requested by any purchaser or by
any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement; and in connection with
an Underwritten Registration, the Trust and the Company shall:
(A) upon request, furnish to each selling Holder
and each underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily made by
issuers to underwriters in primary underwritten offerings,
upon the date of the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of the
effectiveness of the Shelf Registration Statement,
signed by (y) the Chairman of the Board, its President
or a Vice President and (z) the Chief Financial Officer
of the Company, confirming, as of the date thereof,
such matters as such parties may reasonably request;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration Statement, of
counsel for the Company and the Trust, covering such
matters as such parties may reasonably request, and in
any event including a statement to the effect that such
counsel has participated in conferences with officers
and/or other representatives of the Company and the
Trust, representatives of the independent public
accountants for the Company, the Initial Purchaser's
representatives and the Initial Purchaser's counsel to
the extent such persons are available for such a
conference, in connection with the preparation of such
Registration Statement and the related Prospectus and
have considered the matters required to be stated
therein and the statements contained therein, although
such counsel has not independently verified the
accuracy, completeness or fairness of such statements
or in any documents incorporated by reference therein,
and take no responsibility therefore, except to the
extent set forth in the following clause; and that such
counsel advises that, on the basis of the foregoing
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement
became effective, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial
data included in any Registration Statement
contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated the
date of the effectiveness of the Shelf Registration
Statement, from the Company's independent accountants,
in the customary form and covering matters of the type
customarily covered in comfort letters by underwriters
in connection with primary underwritten offerings.
(B) set forth in full or incorporate by reference
in the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect
to all parties to be indemnified pursuant to said Section;
and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Trust pursuant
to this clause (xi), if any.
If at any time the representations and warranties of
the Company contemplated in clause (A)(1) above cease to be true
and correct to the knowledge of the Company, after due inquiry,
the Company shall so advise the Initial Purchaser and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions in the United States as the selling
Holders or underwriter(s) may reasonably request and do any and
all other acts or things necessary or reasonably advisable to
enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration
<PAGE> 16
Statement; PROVIDED, HOWEVER, that neither the Company nor the
Trust shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where
it is not now so subject;
(xiii) shall issue, upon the request of any Holder of
Securities covered by the Shelf Registration Statement, New
Securities in the same amount as the Securities surrendered to
the Company and the Trust by such Holder in exchange therefor or
being sold by such Holder; such New Securities to be registered
in the name of such Holder or in the name of the purchaser(s) of
such Securities, as the case may be; in return, the Securities
held by such Holder shall be surrendered to the Company and the
Trust for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends;
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days
prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xvi) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, as promptly as
is practicable under the circumstances in the good faith
determination of the Company prepare a supplement or post-
effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the
Registration Statement will not contain an untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein not misleading; and any Prospectus
will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(xvii) provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide certificates for the Transfer
Restricted Securities;
<PAGE> 17
(xviii) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation in accordance with clause (c)(vi) by any
underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use its best efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or
(B) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture and the Declaration to be
qualified under the TIA not later than the effective date of the
first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders
of Securities to effect such changes to the Indenture and the
Declaration as may be required for such Indenture and the
Declaration to be so qualified in accordance with the terms of
the TIA; and execute and use their best efforts to cause the
Indenture Trustee, Guarantee Trustee and the Property Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements
of Section 13(a) and Section 15(d) of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company or the
Trust of the existence of any fact or event of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the
<PAGE> 18
applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof, or until it is advised in writing (the
"Advice") by the Company or the Trust that the use of the Prospectus
may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company or the Trust, each Holder
will deliver to the Company or the Trust (at the Company's and the
Trust's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice. In the event the Company or the Trust shall give any such
notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof or shall have received the
Advice.
7. REGISTRATION EXPENSES.
All expenses incident to the Company's and the Trust's
performance of or compliance with this Agreement, other than the
expenses of any Holder, will be borne by the Company and the Trust,
regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
expenses (including filings made by any Purchaser with the NASD (and,
if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the New
Securities to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company
and the Trust; (v) all application and filing fees in connection with
listing Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of
the Company and the Trust (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company and the Trust will, in any event, bear their
internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal or
<PAGE> 19
accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Company or the Trust.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or the Initial
Purchaser, as applicable, who seeks to sell New Securities, the Company and
the Trust shall indemnify and hold harmless each Holder of Transfer
Restricted Securities included within any such Shelf Registration Statement
and each participating Broker-Dealer or Initial Purchaser selling New
Securities, and each person, if any, who controls any such person within
the meaning of Section 15 of the Securities Act (each, a "Participant")
from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
Securities) to which such Participant or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
in any such Registration Statement or any prospectus forming part thereof
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and which is
referred to in or induced as part of any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii)
above and shall reimburse each Participant promptly upon demand for any
legal or other expenses reasonably incurred by such Participant in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that (i) the Company and the Trust shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in any
such Registration Statement or any prospectus forming part thereof or in
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company or the Trust by or on behalf
of any Participant specifically for inclusion therein; and PROVIDED FURTHER
that as to any preliminary Prospectus, the indemnity agreement contained in
this Section 8(a) shall not inure to the benefit of any such Participant or
any controlling person of such Participant on account of any loss, claim,
damage, liability or action arising from the sale of the New Securities to
any person by that Participant if (i) that Participant failed to send or
give a copy of the Prospectus, as the same may be amended or supplemented,
to that person within the time required by the Securities Act and (ii) the
untrue statement or alleged untrue statement of a material fact or omission
<PAGE> 20
or alleged omission to state a material fact in such preliminary Prospectus
was corrected in the Prospectus, unless, in each case, such failure
resulted from non-compliance by the Company and the Trust with Section
6(c). The foregoing indemnity agreement is in addition to any liability
which the Company and the Trust may otherwise have to any Participant or to
any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall indemnify
and hold harmless the Company and the Trust, each of its respective
directors, officers, employees or agents and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Securities), to which the Company and the Trust or
any such director, officer, employees or agents or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company and the Trust
by or on behalf of that Participant specifically for inclusion herein, and
shall reimburse the Company and the Trust and any such director, officer,
employees or agents or controlling person promptly upon written demand for
any legal or other expenses reasonably incurred by the Company or the Trust
or any such director, officer, employees or agents or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability which any Participant may otherwise have to the Company and the
Trust or any such director, officer, employee, agent or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, PROVIDED FURTHER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim
<PAGE> 21
or action shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the Initial Purchaser shall have the
right to employ counsel to represent jointly the Initial Purchaser and
those other Participants and their respective officers, employees and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Participants
against the Company and the Trust under this Section 8 if, in the
reasonable judgment of the Initial Purchaser it is advisable for the
Initial Purchaser and those Participants, officers, employees and
controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by
the Trust and the Company. The Company and the Trust each shall have the
right to employ counsel to represent either or both of them and their
respective officers, directors, employees, trustees and agents and
controlling person who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Company or the Trust
under this Section 8 if, in the reasonably judgment of the Company and the
Trust it is advisable for the Company and/or the Trust and their respective
officers, directors, employees, trustees and agents to be jointly
represented by special counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Participants. Each indemnified
party, as a condition of the indemnity agreements contained in Section 8,
shall use its best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if
there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss of liability by reason of such settlement
or judgment.
<PAGE> 22
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to
reflect the relative fault of the Trust and the Company on the one hand and
the Participants on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Trust and the Company or the Participants, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Trust and the
Participants agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section 8(d) shall
be deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to
contribute any amount in excess of the amount by which proceeds received by
such Participant from an offering of the Notes exceeds the amount of any
damages which such Participant has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligations to contribute as provided
in this Section 8(d) are several and not joint.
9. RULE 144A.
The Company and the Trust hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or
beneficial owner, upon request, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
<PAGE> 23
10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters
and other documents required under the terms of such underwriting
arrangements.
11. SELECTION OF UNDERWRITERS.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; PROVIDED, that such
investment bankers and managers must be reasonably satisfactory to the
Company.
12. MISCELLANEOUS.
(a) REMEDIES. The Company and the Trust agree that
monetary damages (including the Additional Interest and Additional
Distributions contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company and the Trust
have not entered into, and will not on or after the date of this
Agreement enter into, any agreement with respect to the Securities
that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The
Company and the Trust have not previously entered into any agreement
granting any registration rights with respect to the Securities to any
Person.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company and the
Trust will not take any action, or permit any change to occur, with
respect to Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
<PAGE> 24
consents to or departures from the provisions hereof may not be given
unless the Company and the Trust have obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being
tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities
are not being tendered pursuant to such Exchange Offer may be given by
the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Trust; and
(ii) if to the Company and the Trust:
One Vandenberg Center
Grand Rapids, MI 49503
Attention: Corporate Secretary
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee at the address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need for
an express assignment, subsequent Holders of Transfer Restricted
Securities; PROVIDED, HOWEVER, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer
Restricted Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
<PAGE> 25
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the
other transaction documents is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein with respect to the registration
rights granted by the Company and the Trust with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
(l) REQUIRED CONSENTS. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is
required hereunder, Transfer Restricted Securities held by the Company
or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
<PAGE> 26
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
OLD KENT FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
OLD KENT CAPITAL TRUST I
By:_____________________________________
Name:
Title:
Agreed and Accepted
as of the date hereof
LEHMAN BROTHERS INC.
By:______________________
Name:
Title:
<PAGE>
EXHIBIT 10.17
FORM OF EXECUTIVE SEVERANCE AGREEMENT
The following individuals have entered into an Executive
Severance Agreement in the following form, all of which are identical
except for the names and dates of the respective individual employee:
Kevin T. Kabat
Robert L. Sadler
B.P. Sherwood, III
David J. Wagner
Robert H. Warrington
Thomas D. Wisnom
<PAGE>
Executive Severance
Agreement for
OLD KENT FINANCIAL CORPORATION
DATE
CONTENTS
- --------------------------------------------------------------------------------
Page
Article 1. Establishment, Term, and Purpose 2
Article 2. Definitions 2
Article 3. Severance Benefits 6
Article 4. Form and Timing of Severance Benefits 9
Article 5. Excise Tax Equalization Payment 9
Article 6. Establishment of Trust 11
Article 7. The Company's Payment Obligation 11
Article 8. Legal Remedies 12
Article 9. Outplacement Assistance 12
Article 10. Successors and Assignment 12
Article 11. Miscellaneous 13
<PAGE>
Old Kent Financial Corporation
Executive Severance Agreement
THIS AGREEMENT is made and entered into as of the DAY OF
1997, by and between Old Kent Financial Corporation
(hereinafter referred to as the "Company") and
(hereinafter referred to as the "Executive").
WHEREAS, the Board of Directors of the Company has approved the Company
entering into severance agreements with certain key executives of the
Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control of the Company
arise, the Board believes it is imperative that the Company and the Board
should be able to rely upon the Executive to continue in his position, and
that the Company should be able to receive and rely upon the Executive's
advice, if requested, as to the best interests of the Company and its
shareholders without concern that the Executive might be distracted by the
personal uncertainties and risks created by the possibility of a Change in
Control;
WHEREAS, should the possibility of a Change in Control arise, in
addition to [his/her] regular duties, the Executive may be called upon to
assist in the assessment of such possible Change in Control, advise
management and the Board as to whether such Change in Control would be in
the best interests of the Company and its shareholders, and to take such
other actions as the Board might determine to be appropriate; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement shall completely replace and supersede the provisions set forth
in the Executive Severance Agreement, entered into by and between the
Company and the Executive on , setting forth the terms and
provisions with respect to the Executive's entitlement to payments and
benefits following a Change in Control of the Company.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of [his/her] advice and
counsel notwithstanding the possibility, threat, or occurrence of a Change
in Control of the Company, and to induce the Executive to remain in the
employ of the Company, and for other good and valuable consideration, the
Company and the Executive agree as follows:
1
<PAGE>
ARTICLE 1. ESTABLISHMENT, TERM, AND PURPOSE
This Agreement will commence on the Effective Date and shall continue
in effect for three (3) full calendar years. However, at the end of such
three (3) year period and, if extended, at the end of each additional year
thereafter, the term of this Agreement shall be extended automatically for
one (1) additional year, unless the Committee delivers written notice six
(6) months prior to the end of such term, or extended term, to each
Executive, that the Agreement will not be extended. In such case, the
Agreement will terminate at the end of the term, or extended term, then in
progress.
However, in the event a Change in Control occurs during the original or
any extended term, this Agreement will remain in effect for the longer of:
(i) twenty-four (24) months beyond the month in which such Change in
Control occurred; or (ii) until all obligations of the Company hereunder
have been fulfilled, and until all benefits required hereunder have been
paid to the Executive.
Article 2. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized.
2.1 "Base Salary" means the salary of record paid to an Executive as
annual salary, excluding amounts received under incentive or other
bonus plans, whether or not deferred.
2.2 "Beneficial Owner" shall have the meaning ascribed to such term
in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act.
2.3 "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 11.2 herein.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means: (a) the Executive's willful and continued failure to
substantially perform [his/her] duties with the Company (other than
any such failure resulting from Disability or occurring after
issuance by the Executive of a Notice of Termination for Good
Reason), after a written demand for substantial performance is
delivered to the Executive that specifically identifies the manner
in which the Company believes that the Executive has willfully
failed to substantially perform [his/her] duties, and after the
Executive has failed to resume substantial performance of [his/her]
duties on a continuous basis within fourteen (14) calendar days of
receiving such demand; (b) the Executive's willfully engaging in
2
<PAGE>
conduct (other than conduct covered under (a) above) which is
demonstrably and materially injurious to the Company, monetarily or
otherwise; or (c) the Executive's having been convicted of a
felony. For purposes of this subparagraph, no act, or failure to
act, on the Executive's part shall be deemed "willful" unless done,
or omitted to be done, by the Executive not in good faith and
without reasonable belief that the action or omission was in the
best interests of the Company.
2.6 "Change in Control" of the Company means an occurrence of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act.
Without limiting the inclusiveness of the definition in the
preceding sentence, a Change in Control of the Corporation shall be
deemed to have occurred as of the first day that any one or more of
the following conditions is satisfied:
(a) Any Person is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty-five percent
(25%) or more of the combined voting power of the Company's
then outstanding securities; or
(b) The failure at any time of the Continuing Directors to
constitute at least a majority of the Board of Directors of the
Company; and for this purpose, the term "Continuing Directors"
means the individuals who were either (i) first elected or
appointed as a director prior to the Effective Date, or (ii)
subsequently appointed as a director, if appointed or nominated
by at least a majority of the Continuing Directors in office at
the time of the nomination or appointment, but specifically
excluding any individual whose initial assumption of office
occurs as a result of either an actual or threatened election
contest (as the term is used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board of Directors; or
(c) Any of the following occur:
(i) Any merger or consolidation of the Company, other than a
merger or consolidation in which the voting securities of
the Company immediately prior to the merger or
consolidation continue to represent (either by remaining
outstanding or being converted into securities of the
surviving entity) sixty percent (60%) or more of the
combined voting power of the Company or surviving entity
immediately after the merger or consolidation with another
entity;
3
<PAGE>
(ii) Any sale, exchange, lease, mortgage, pledge, transfer, or
other disposition (in a single transaction or a series of
related transactions) of assets or earning power
aggregating more than fifty percent (50%) of the assets or
earning power of the Company on a consolidated basis;
(iii) Any complete liquidation or dissolution of the Company;
(iv) Any reorganization, reverse stock split, or
recapitalization of the Company which would result in a
Change in Control as otherwise defined herein; or
(v) Any transaction or series of related transactions having,
directly or indirectly, the same effect as any of the
foregoing.
2.7 "Code" means the United States Internal Revenue Code of 1986,
as amended.
2.8 "Committee" means the Personnel Committee of the Board or any other
committee appointed by the Board to perform the functions of the
Personnel Committee.
2.9 "Company" means Old Kent Financial Corporation, or any successor
thereto as provided in Article 10 herein.
2.10 "Disability" means that, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been
absent from the full-time performance of [his/her] duties with the
Company for twelve (12) consecutive months and, within thirty (30)
calendar days after written notice of suspension due to Disability
is given, the Executive shall not have returned to the full-time
performance of his duties.
2.11 "Effective Date" means the date of this Agreement set forth above.
2.12 "Effective Date of Termination" means the date on which a
Qualifying Termination occurs which triggers the payment of
Severance Benefits hereunder.
2.13 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
2.14 "Good Reason" shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially
inconsistent with the Executive's authorities, duties,
responsibilities, and status (including offices, titles, and
4
<PAGE>
reporting requirements) as an employee of the Company, or a
reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from
those in effect during the immediately preceding fiscal year;
(b) The Company's requiring the Executive to be based at a
location which is at least fifty (50) miles further from the
current primary residence than is such residence from the
Company's current headquarters, except for required travel on
the Company's business to an extent substantially consistent
with the Executive's business obligations as of the Effective
Date;
(c) A reduction by the Company in the Executive's Base Salary as
in effect on the Effective Date or as the same shall be
increased from time to time;
(d) A material reduction in the Executive's level of participation
in any of the Company's short- and/or long-term incentive
compensation plans, or employee benefit or retirement plans,
policies, practices, or arrangements in which the Executive
participates as of the Effective Date; provided, however, that
reductions in the levels of participation in any such plans
shall not be deemed to be "Good Reason" if the Executive's
reduced level of participation in each such program remains
substantially consistent with the average level of
participation of other executives who have positions
commensurate with the Executive's position;
(e) The failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to
perform this Agreement, as contemplated in Article 10 herein;
or
(f) Any termination of Executive's employment by the Company that
is not effected pursuant to a Notice of Termination.
The existence of Good Reason shall not be affected by the
Executive's incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute a waiver of
the Executive's rights with respect to any circumstance
constituting Good Reason.
2.15 "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and
14(d) thereof, including a "group" as provided in Section 13(d).
2.16 "Potential Change in Control" means the Company's entering into,
or the Board of Directors authorizing, an agreement, the
5
<PAGE>
consummation of which would result in the occurrence of a Change
in Control; or (ii) adoption by the Board of Directors of a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
2.17 "Qualifying Termination" means any of the events described in
Section 3.2 herein, the occurrence of which triggers the payment
of Severance Benefits hereunder.
2.18 "Retirement" shall mean Early, Normal or Late Retirement as
defined in the Old Kent Retirement Income Plan.
2.19 "Severance Benefits" means the payment of severance compensation
as provided in Section 3.3 herein.
2.20 "Trust" means the Company grantor trust to be created pursuant to
Article 6 of this Agreement.
Article 3. Severance Benefits
3.1 RIGHT TO SEVERANCE BENEFITS. The Executive shall be entitled to
receive from the Company Severance Benefits, as described in Section 3.3
herein, if there has been a Change in Control of the Company and if, within
the six (6) full calendar month period prior to the effective date of a
Change in Control, or within twenty-four (24) calendar months following the
effective date of a Change in Control, the Executive's employment with the
Company shall end for any reason specified in Section 3.2 herein.
The Executive shall not be entitled to receive Severance Benefits if
[he/she] is terminated for Cause, or if [his/her] employment with the
Company ends due to death or Disability, or due to a voluntary termination
of employment by the Executive without Good Reason.
3.2 QUALIFYING TERMINATION. The occurrence of any one or more of the
following events within the six (6) full calendar month period prior to the
effective date of a Change in Control, or within twenty-four (24) calendar
months following the effective date of a Change in Control of the Company
shall trigger the payment of Severance Benefits to the Executive under this
Agreement:
(a) An involuntary termination of the Executive's employment by
the Company for reasons other than Cause;
(b) A voluntary termination by the Executive for Good Reason;
(c) A successor company fails or refuses to assume the Company's
obligations under this Agreement, as required by Article 10
herein; or
6
<PAGE>
(d) The Company or any successor company breaches any of the
provisions of this Agreement.
3.3 DESCRIPTION OF SEVERANCE BENEFITS. In the event the Executive
becomes entitled to receive Severance Benefits, as provided in Sections 3.1
and 3.2 herein, the Company shall pay to the Executive and provide
[him/her] with the following:
(a) An amount equal to three (3) times the highest rate of the
Executive's annualized Base Salary rate in effect at any time
up to and including the Effective Date of Termination.
(b) An amount equal to three (3), times the greater of: (i) the
Executive's average annual bonus earned over the three (3)
full fiscal years prior to the Effective Date of Termination;
or (ii) the Executive's target annual bonus established for
the bonus plan year in which the Executive's Effective Date of
Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary and
accrued vacation pay through the Effective Date of
Termination.
(d) An amount equal to the Executive's unpaid targeted annual
bonus, established for the plan year in which the Executive's
Effective Date of Termination occurs, multiplied by a
fraction, the numerator of which is the number of days
completed in the then-existing fiscal year through the
Effective Date of Termination, and the denominator of which is
three hundred sixty-five (365).
(e) A continuation of the welfare benefits of health care, life
and accidental death and dismemberment, and disability
insurance coverage for three (3) full years after the
Effective Date of Termination. These benefits shall be
provided to the Executive at the same premium cost, and at the
same coverage level, as in effect as of the Executive's
Effective Date of Termination. However, in the event the
premium cost and/or level of coverage shall change for all
employees of the Company, the cost and/or coverage level,
likewise, shall change for each Executive in a corresponding
manner.
The continuation of these welfare benefits shall be
discontinued prior to the end of the three (3) year period in
the event the Executive has available substantially similar
benefits from a subsequent employer, as determined by the
Committee.
7
<PAGE>
(f) A lump-sum cash payment of the actuarial present value
equivalent of the aggregate benefits accrued by the Executive
as of the Effective Date of Termination under the Old Kent
Executive Retirement Income Plan. For this purpose, such
benefits shall be calculated under the assumption that the
Executive's employment continued following the Effective Date
of Termination for three (3) full years (i.e., three (3)
additional years of age and service credits shall be added);
provided, however, that for purposes of determining "final
average pay" under such programs, the Executive's actual pay
history as of the effective date of termination shall be used.
(g) A lump-sum cash payment of the entire balance of the
Executive's compensation which has been deferred under the Old
Kent Deferred Compensation Plan, the Old Kent Executive Thrift
Plan, and the Old Kent Deferred Stock Compensation Plan, as
applicable, together with all interest that has been credited
with respect to any such deferred compensation balances
pursuant to the terms of the applicable plan.
3.4 TERMINATION FOR DISABILITY. Following a Change in Control of the
Company, if an Executive's employment is terminated due to Disability, the
Executive shall receive [his/her] Base Salary through the Effective Date of
Termination, at which point in time the Executive's benefits shall be
determined in accordance with the Company's disability, retirement,
insurance, and other applicable plans and programs then in effect.
3.5 TERMINATION FOR RETIREMENT OR DEATH. Following a Change in Control
of the Company, if the Executive's employment is terminated by reason of
[his/her] Retirement or death, the Executive's benefits shall be determined
in accordance with the Company's retirement, survivor's benefits,
insurance, and other applicable programs of the Company then in effect.
3.6 TERMINATION FOR CAUSE, OR OTHER THAN FOR GOOD REASON OR
RETIREMENT. Following a Change in Control of the Company, if the
Executive's employment is terminated either: (a) by the Company for Cause;
or (b) by the Executive (other than for Retirement) and other than for
Good Reason, the Company shall pay the Executive [his/her] full Base Salary
and accrued vacation through the Effective Date of Termination, at the rate
then in effect, plus all other amounts to which the Executive is entitled
under any compensation plans of the Company, at the time such payments are
due, and the Company shall have no further obligations to the Executive
under this Agreement.
3.7 NOTICE OF TERMINATION. Any termination by the Company for Cause or
by the Executive for Good Reason shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination"
shall mean a written notice which shall indicate the specific termination
8
<PAGE>
provision in this Agreement relied upon, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
Article 4. Form and Timing of Severance Benefits
4.1 FORM AND TIMING OF SEVERANCE BENEFITS. The Severance Benefits
described in Sections 3.3(a), 3.3(b), 3.3(c), 3.3(d), 3.3(f), and 3.3(g)
herein shall be paid in cash to the Executive in a single lump sum as soon
as practicable following the Effective Date of Termination, but in no event
beyond thirty (30) days from such date.
4.2 WITHHOLDING OF TAXES. The Company shall be entitled to withhold
from any amounts payable under this Agreement all taxes as legally shall be
required (including, without limitation, any United States federal taxes
and any other state, city, or local taxes).
Article 5. Excise Tax Equalization Payment
5.1 EXCISE TAX EQUALIZATION PAYMENT. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit
under this Agreement, or under any other agreement with or plan of the
Company (in the aggregate, the "Total Payments"), if all or any part of the
Total Payments will be subject to the tax (the "Excise Tax") imposed by
Section 4999 of the Code (or any similar tax that may hereafter be
imposed), the Company shall pay to the Executive in cash an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive after deduction of any Excise Tax upon the Total Payments and any
federal, state, and local income tax, penalties, interest, and Excise Tax
upon the Gross-Up Payment provided for by this Section 5.1 (including FICA
and FUTA), shall be equal to the Total Payments. Such payment shall be made
by the Company to the Executive as soon as practical following the
effective date of termination, but in no event beyond thirty (30) days from
such date.
5.2 TAX COMPUTATION. For purposes of determining whether any of the
Total Payments will be subject to the Excise Tax and the amounts of such
Excise Tax:
(a) Any other payments or benefits received or to be received by
the Executive in connection with a Change in Control of the
Company or the Executive's termination of employment (whether
pursuant to the terms of this Agreement or any other plan,
arrangement, or agreement with the Company, or with any Person
whose actions result in a Change in Control of the Company or
any Person affiliated with the Company or such Persons) shall
be treated as "parachute payments" within the meaning of
Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be
9
<PAGE>
treated as subject to the Excise Tax, unless in the opinion of
tax counsel as supported by the Company's independent auditors
and acceptable to the Executive, such other payments or
benefits (in whole or in part) do not constitute parachute
payments, or unless such excess parachute payments (in whole
or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject
to the Excise Tax;
(b) The amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of: (i)
the total amount of the Total Payments; or (ii) the amount of
excess parachute payments within the meaning of
Section 280G(b)(1) (after applying clause (a) above); and
(c) The value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made, and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the
Executive's residence on the Effective Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
5.3 SUBSEQUENT RECALCULATION. In the event the Internal Revenue
Service adjusts the computation of the Company under Section 5.2 herein so
that the Executive did not receive the greatest net benefit, the Company
shall reimburse the Executive for the full amount necessary to make the
Executive whole, plus a market rate of interest, as determined by the
Committee.
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company
shall create a Trust (which shall be an irrevocable grantor trust within
the meaning of Sections 671-678 of the Internal Revenue Code) for the
benefit of the Executive and Beneficiaries, as appropriate. The Trust shall
have a Trustee as selected by the Company, and shall have certain
restrictions as to the Company's ability to amend the Trust or cancel
benefits provided thereunder. Any assets contained in the Trust shall, at
all times, be specifically subject to the claims of the Company's general
creditors in the event of bankruptcy or insolvency; such terms to be
10
<PAGE>
specifically defined within the provisions of the Trust, along with the
required procedure for notifying the Trustee of any bankruptcy or
insolvency.
At any time following the Effective Date hereof, the Company may deposit
assets in the Trust in an amount equal to or less than the aggregate
Severance Benefits which may become due to the Executive under Sections
3.1, 3.2, and 5.1 of this Agreement.
Upon the first to occur of a Potential Change in Control or Change in
Control, the Company shall deposit assets in such Trust in an amount equal
to the aggregate Severance Benefits which may become due to the Executive
under Sections 3.1, 3.2, and 5.1 of this Agreement, except to the extent
that assets equal to any Severance Benefits payable pursuant to Sections
3.3(f) or 3.3(g) are held in or required to be deposited in a separate
grantor trust which is in effect as of the Potential Change in Control or
Change in Control, as applicable.
Article 7. The Company's Payment Obligation
The Company's obligation to make the payments and the arrangements
provided for herein shall be absolute and unconditional, and shall not be
affected by any circumstances, including, without limitation, any offset,
counterclaim, recoupment, defense, or other right which the Company may
have against the Executive or anyone else. All amounts payable by the
Company hereunder shall be paid without notice or demand. Each and every
payment made hereunder by the Company shall be final, and the Company shall
not seek to recover all or any part of such payment from the Executive or
from whomsoever may be entitled thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangements made under any provision
of this Agreement, and the obtaining of any such other employment shall in
no event effect any reduction of the Company's obligations to make the
payments and arrangements required to be made under this Agreement, except
to the extent provided in Section 3.3(e) herein.
Article 8. Legal Remedies
8.1 PAYMENT OF LEGAL FEES. To the extent permitted by law, the Company
shall pay all legal fees, costs of litigation, prejudgment interest, and
other expenses incurred in good faith by the Executive as a result of the
Company's refusal to provide the Severance Benefits to which the Executive
becomes entitled under this Agreement, or as a result of the Company's
contesting the validity, enforceability, or interpretation of this
Agreement, or as a result of any conflict between the parties pertaining to
this Agreement; provided, however, that the Company shall be reimbursed by
the Executive for all such fees and expenses in the event the Executive
fails to prevail with respect to any one material issue of dispute in
connection with such legal action.
11
<PAGE>
8.2 ARBITRATION. The Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising
under or in connection with this Agreement settled by arbitration,
conducted before a panel of three (3) arbitrators sitting in a location
selected by the Executive within fifty (50) miles from the location of his
employment with the Company, in accordance with the rules of the American
Arbitration Association then in effect.
Judgment may be entered on the award of the arbitrator in any court
having proper jurisdiction. All expenses of such arbitration, including the
fees and expenses of the counsel for the Executive, shall be borne by the
Company; provided, however, that the Company shall be reimbursed by the
Executive for all such fees and expenses in the event the Executive fails
to prevail with respect to any one material issue of dispute in connection
with such legal action.
Article 9. Outplacement Assistance
Following a Qualifying Termination (as described in Section 3.2 herein),
the Executive shall be reimbursed by the Company for the costs of all
outplacement services obtained by the Executive within the two (2) year
period after the effective date of termination; provided, however, that the
total reimbursement shall be limited to an amount equal to fifteen percent
(15%) of the Executive's Base Salary as of the effective date of
termination.
Article 10. Successors and Assignment
10.1 SUCCESSORS TO THE COMPANY. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or
otherwise) of all or substantially all of the business and/or assets of the
Company or of any division or subsidiary thereof to expressly assume and
agree to perform the Company's obligations under this Agreement in the same
manner and to the same extent that the Company would be required to perform
them if no such succession had taken place. Failure of the Company to
obtain such assumption and agreement prior to the effective date of any
such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the
same terms as [he/she] would be entitled to hereunder if they had
terminated [his/her] employment with the Company voluntarily for Good
Reason. Except for the purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Effective
Date of Termination.
10.2 ASSIGNMENT BY THE EXECUTIVE. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If the Executive dies while any
amount would still be payable to [him/her] hereunder had [he/she] continued
12
<PAGE>
to live, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's
Beneficiary. If the Executive has not named a Beneficiary, then such
amounts shall be paid to the Executive's devisee, legatee, or other
designee, or if there is no such designee, to the Executive's estate.
Article 11. Miscellaneous
11.1 EMPLOYMENT STATUS. Except as may be provided under any other
agreement between the Executive and the Company, the employment of the
Executive by the Company is "at will," and, prior to the effective date of
a Change in Control, may be terminated by either the Executive or the
Company at any time, subject to applicable law.
11.2 BENEFICIARIES. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must
be in the form of a signed writing acceptable to the Committee. The
Executive may make or change such designations at any time.
11.3 SEVERABILITY. In the event any provision of this Agreement shall
be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement
shall be construed and enforced as if the illegal or invalid provision had
not been included. Further, the captions of this Agreement are not part of
the provisions hereof and shall have no force and effect.
11.4 MODIFICATION. No provision of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is
agreed to in writing and signed by the Executive and by an authorized
member of the Committee, or by the respective parties' legal
representatives and successors.
11.5 APPLICABLE LAW. To the extent not preempted by the laws of the
United States, the laws of the state of Michigan shall be the controlling
law in all matters relating to this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day
and year written above.
OLD KENT FINANCIAL CORPORATION
By ________________________________
Mary E. Tuuk
Its Vice President and Secretary
___________________________________
"Employee"
13
<PAGE>
EXHIBIT 10.18
FORM OF EXECUTIVE SEVERANCE AGREEMENT
The following individuals have entered into an Executive
Severance Agreement in the following form, all of which are identical
except for the names and dates of the respective individual employee:
Steven D. Crandall
David A. Dams
E. Philip Farley
Ralph W. Garlick
Charles Jennings
David L. Kerstein
Larry Magnesen
Michael J. Whalen
<PAGE>
Executive Severance
Agreement for
OLD KENT FINANCIAL CORPORATION
DATE
<PAGE>
Contents
- --------------------------------------------------------------------------------
Page
Article 1. Establishment, Term, and Purpose 2
Article 2. Definitions 2
Article 3. Severance Benefits 6
Article 4. Form and Timing of Severance Benefits 9
Article 5. Excise Tax Equalization Payment 9
Article 6. Establishment of Trust 11
Article 7. The Company's Payment Obligation 11
Article 8. Legal Remedies 12
Article 9. Outplacement Assistance 12
Article 10. Successors and Assignment 12
Article 11. Miscellaneous 13
<PAGE>
Old Kent Financial Corporation
Executive Severance Agreement
THIS AGREEMENT is made and entered into as of the DAY OF
, 1997, by and between Old Kent Financial Corporation
(hereinafter referred to as the "Company") and
(hereinafter referred to as the "Executive").
WHEREAS, the Board of Directors of the Company has approved the Company
entering into severance agreements with certain key executives of the
Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control of the Company
arise, the Board believes it is imperative that the Company and the Board
should be able to rely upon the Executive to continue in his position, and
that the Company should be able to receive and rely upon the Executive's
advice, if requested, as to the best interests of the Company and its
shareholders without concern that the Executive might be distracted by the
personal uncertainties and risks created by the possibility of a Change in
Control;
WHEREAS, should the possibility of a Change in Control arise, in
addition to [his/her] regular duties, the Executive may be called upon to
assist in the assessment of such possible Change in Control, advise
management and the Board as to whether such Change in Control would be in
the best interests of the Company and its shareholders, and to take such
other actions as the Board might determine to be appropriate; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement shall completely replace and supersede the provisions set forth
in the Executive Severance Agreement, entered into by and between the
Company and the Executive on , setting forth the terms and
provisions with respect to the Executive's entitlement to payments and
benefits following a Change in Control of the Company.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of [his/her] advice and
counsel notwithstanding the possibility, threat, or occurrence of a Change
in Control of the Company, and to induce the Executive to remain in the
employ of the Company, and for other good and valuable consideration, the
Company and the Executive agree as follows:
1
<PAGE>
Article 1. Establishment, Term, and Purpose
This Agreement will commence on the Effective Date and shall continue in
effect for three (3) full calendar years. However, at the end of such three
(3) year period and, if extended, at the end of each additional year
thereafter, the term of this Agreement shall be extended automatically for
one (1) additional year, unless the Committee delivers written notice six
(6) months prior to the end of such term, or extended term, to each
Executive, that the Agreement will not be extended. In such case, the
Agreement will terminate at the end of the term, or extended term, then in
progress.
However, in the event a Change in Control occurs during the original or
any extended term, this Agreement will remain in effect for the longer of:
(i) twenty-four (24) months beyond the month in which such Change in
Control occurred; or (ii) until all obligations of the Company hereunder
have been fulfilled, and until all benefits required hereunder have been
paid to the Executive.
Article 2. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized.
2.1 "Base Salary" means the salary of record paid to an Executive as
annual salary, excluding amounts received under incentive or other
bonus plans, whether or not deferred.
2.2 "Beneficial Owner" shall have the meaning ascribed to such term
in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act.
2.3 "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 11.2 herein.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means: (a) the Executive's willful and continued failure to
substantially perform [his/her] duties with the Company (other than
any such failure resulting from Disability or occurring after
issuance by the Executive of a Notice of Termination for Good
Reason), after a written demand for substantial performance is
delivered to the Executive that specifically identifies the manner
in which the Company believes that the Executive has willfully
failed to substantially perform [his/her] duties, and after the
Executive has failed to resume substantial performance of [his/her]
duties on a continuous basis within fourteen (14) calendar days of
receiving such demand; (b) the Executive's willfully engaging in
2
<PAGE>
conduct (other than conduct covered under (a) above) which is
demonstrably and materially injurious to the Company, monetarily or
otherwise; or (c) the Executive's having been convicted of a
felony. For purposes of this subparagraph, no act, or failure to
act, on the Executive's part shall be deemed "willful" unless done,
or omitted to be done, by the Executive not in good faith and
without reasonable belief that the action or omission was in the
best interests of the Company.
2.6 "Change in Control" of the Company means an occurrence of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act.
Without limiting the inclusiveness of the definition in the
preceding sentence, a Change in Control of the Corporation shall be
deemed to have occurred as of the first day that any one or more of
the following conditions is satisfied:
(a) Any Person is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty-five percent
(25%) or more of the combined voting power of the Company's
then outstanding securities; or
(b) The failure at any time of the Continuing Directors to
constitute at least a majority of the Board of Directors of the
Company; and for this purpose, the term "Continuing Directors"
means the individuals who were either (i) first elected or
appointed as a director prior to the Effective Date, or (ii)
subsequently appointed as a director, if appointed or nominated
by at least a majority of the Continuing Directors in office at
the time of the nomination or appointment, but specifically
excluding any individual whose initial assumption of office
occurs as a result of either an actual or threatened election
contest (as the term is used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board of Directors; or
(c) Any of the following occur:
(i) Any merger or consolidation of the Company, other than a
merger or consolidation in which the voting securities of
the Company immediately prior to the merger or
consolidation continue to represent (either by remaining
outstanding or being converted into securities of the
surviving entity) sixty percent (60%) or more of the
combined voting power of the Company or surviving entity
immediately after the merger or consolidation with another
entity;
3
<PAGE>
(ii) Any sale, exchange, lease, mortgage, pledge, transfer, or
other disposition (in a single transaction or a series of
related transactions) of assets or earning power
aggregating more than fifty percent (50%) of the assets or
earning power of the Company on a consolidated basis;
(iii) Any complete liquidation or dissolution of the Company;
(iv) Any reorganization, reverse stock split, or
recapitalization of the Company which would result in a
Change in Control as otherwise defined herein; or
(v) Any transaction or series of related transactions having,
directly or indirectly, the same effect as any of the
foregoing.
2.7 "Code" means the United States Internal Revenue Code of 1986,
as amended.
2.8 "Committee" means the Personnel Committee of the Board or any other
committee appointed by the Board to perform the functions of the
Personnel Committee.
2.9 "Company" means Old Kent Financial Corporation, or any successor
thereto as provided in Article 10 herein.
2.10 "Disability" means that, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been
absent from the full-time performance of [his/her] duties with the
Company for twelve (12) consecutive months and, within thirty (30)
calendar days after written notice of suspension due to Disability
is given, the Executive shall not have returned to the full-time
performance of his duties.
2.11 "Effective Date" means the date of this Agreement set forth above.
2.12 "Effective Date of Termination" means the date on which a
Qualifying Termination occurs which triggers the payment of
Severance Benefits hereunder.
2.13 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
2.14 "Good Reason" shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially
inconsistent with the Executive's authorities, duties,
responsibilities, and status (including offices, titles, and
reporting requirements) as an employee of the Company, or a
4
<PAGE>
reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from
those in effect during the immediately preceding fiscal year;
(b) The Company's requiring the Executive to be based at a
location which is at least fifty (50) miles further from the
current primary residence than is such residence from the
Company's current headquarters, except for required travel on
the Company's business to an extent substantially consistent
with the Executive's business obligations as of the Effective
Date;
(c) A reduction by the Company in the Executive's Base Salary as
in effect on the Effective Date or as the same shall be
increased from time to time;
(d) A material reduction in the Executive's level of participation
in any of the Company's short- and/or long-term incentive
compensation plans, or employee benefit or retirement plans,
policies, practices, or arrangements in which the Executive
participates as of the Effective Date; provided, however, that
reductions in the levels of participation in any such plans
shall not be deemed to be "Good Reason" if the Executive's
reduced level of participation in each such program remains
substantially consistent with the average level of
participation of other executives who have positions
commensurate with the Executive's position;
(e) The failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to
perform this Agreement, as contemplated in Article 10 herein;
or
(f) Any termination of Executive's employment by the Company that
is not effected pursuant to a Notice of Termination.
The existence of Good Reason shall not be affected by the
Executive's incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute a waiver
of the Executive's rights with respect to any circumstance
constituting Good Reason.
2.15 "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and
14(d) thereof, including a "group" as provided in Section 13(d).
2.16 "Potential Change in Control" means the Company's entering into,
or the Board of Directors authorizing, an agreement, the
consummation of which would result in the occurrence of a Change
5
<PAGE>
in Control; or (ii) adoption by the Board of Directors of a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
2.17 "Qualifying Termination" means any of the events described in
Section 3.2 herein, the occurrence of which triggers the payment
of Severance Benefits hereunder.
2.18 "Retirement" shall mean Early, Normal, or Late Retirement as
defined in the Old Kent Retirement Income Plan.
2.19 "Severance Benefits" means the payment of severance compensation
as provided in Section 3.3 herein.
2.20 "Trust" means the Company grantor trust to be created pursuant to
Article 6 of this Agreement.
Article 3. Severance Benefits
3.1 RIGHT TO SEVERANCE BENEFITS. The Executive shall be entitled to
receive from the Company Severance Benefits, as described in Section 3.3
herein, if there has been a Change in Control of the Company and if, within
the six (6) full calendar month period prior to the effective date of a
Change in Control, or within twenty-four (24) calendar months following the
effective date of a Change in Control, the Executive's employment with the
Company shall end for any reason specified in Section 3.2 herein.
The Executive shall not be entitled to receive Severance Benefits if
[he/she] is terminated for Cause, or if [his/her] employment with the
Company ends due to death or Disability, or due to a voluntary termination
of employment by the Executive without Good Reason.
3.2 QUALIFYING TERMINATION. The occurrence of any one or more of the
following events within the six (6) full calendar month period prior to the
effective date of a Change in Control, or within twenty-four (24) calendar
months following the effective date of a Change in Control of the Company
shall trigger the payment of Severance Benefits to the Executive under this
Agreement:
(a) An involuntary termination of the Executive's employment by
the Company for reasons other than Cause;
(b) A voluntary termination by the Executive for Good Reason;
(c) A successor company fails or refuses to assume the Company's
obligations under this Agreement, as required by Article 10
herein; or
(d) The Company or any successor company breaches any of the
provisions of this Agreement.
6
<PAGE>
3.3 DESCRIPTION OF SEVERANCE BENEFITS. In the event the Executive
becomes entitled to receive Severance Benefits, as provided in Sections 3.1
and 3.2 herein, the Company shall pay to the Executive and provide
[him/her] with the following:
(a) An amount equal to two (2) times the highest rate of the
Executive's annualized Base Salary rate in effect at any time
up to and including the Effective Date of Termination.
(b) An amount equal to two (2), times the greater of: (i) the
Executive's average annual bonus earned over the three (3)
full fiscal years prior to the Effective Date of Termination;
or (ii) the Executive's target annual bonus established for
the bonus plan year in which the Executive's Effective Date of
Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary and
accrued vacation pay through the Effective Date of
Termination.
(d) An amount equal to the Executive's unpaid targeted annual
bonus, established for the plan year in which the Executive's
Effective Date of Termination occurs, multiplied by a
fraction, the numerator of which is the number of days
completed in the then-existing fiscal year through the
Effective Date of Termination, and the denominator of which is
three hundred sixty-five (365).
(e) A continuation of the welfare benefits of health care, life
and accidental death and dismemberment, and disability
insurance coverage for two (2) full years after the Effective
Date of Termination. These benefits shall be provided to the
Executive at the same premium cost, and at the same coverage
level, as in effect as of the Executive's Effective Date of
Termination. However, in the event the premium cost and/or
level of coverage shall change for all employees of the
Company, the cost and/or coverage level, likewise, shall
change for each Executive in a corresponding manner. The
continuation of these welfare benefits shall be discontinued
prior to the end of the two (2) year period in the event the
Executive has available substantially similar benefits from a
subsequent employer, as determined by the Committee.
(f) A lump-sum cash payment of the actuarial present value
equivalent of the aggregate benefits accrued by the Executive
as of the Effective Date of Termination under the Old Kent
Executive Retirement Income Plan. For this purpose, such
benefits shall be calculated under the assumption that the
Executive's employment continued following the Effective Date
7
<PAGE>
of Termination for two (2) full years (i.e., two (2)
additional years of age and service credits shall be added);
provided, however, that for purposes of determining "final
average pay" under such programs, the Executive's actual pay
history as of the effective date of termination shall be used.
(g) A lump-sum cash payment of the entire balance of the
Executive's compensation which has been deferred under the Old
Kent Deferred Compensation Plan, the Old Kent Executive Thrift
Plan, and the Old Kent Deferred Stock Compensation Plan, as
applicable, together with all interest that has been credited
with respect to any such deferred compensation balances
pursuant to the terms of the applicable plan.
3.4 TERMINATION FOR DISABILITY. Following a Change in Control of the
Company, if an Executive's employment is terminated due to Disability, the
Executive shall receive [his/her] Base Salary through the Effective Date of
Termination, at which point in time the Executive's benefits shall be
determined in accordance with the Company's disability, retirement,
insurance, and other applicable plans and programs then in effect.
3.5 TERMINATION FOR RETIREMENT OR DEATH. Following a Change in Control
of the Company, if the Executive's employment is terminated by reason of
[his/her] Retirement or death, the Executive's benefits shall be determined
in accordance with the Company's retirement, survivor's benefits,
insurance, and other applicable programs of the Company then in effect.
3.6 TERMINATION FOR CAUSE, OR OTHER THAN FOR GOOD REASON OR
RETIREMENT. Following a Change in Control of the Company, if the
Executive's employment is terminated either: (a) by the Company for Cause;
or (b) by the Executive (other than for Retirement) and other than for
Good Reason, the Company shall pay the Executive [his/her] full Base Salary
and accrued vacation through the Effective Date of Termination, at the rate
then in effect, plus all other amounts to which the Executive is entitled
under any compensation plans of the Company, at the time such payments are
due, and the Company shall have no further obligations to the Executive
under this Agreement.
3.7 NOTICE OF TERMINATION. Any termination by the Company for Cause or
by the Executive for Good Reason shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination"
shall mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
8
<PAGE>
Article 4. Form and Timing of Severance Benefits
4.1 FORM AND TIMING OF SEVERANCE BENEFITS. The Severance Benefits
described in Sections 3.3(a), 3.3(b), 3.3(c), 3.3(d), 3.3(f), and 3.3(g)
herein shall be paid in cash to the Executive in a single lump sum as soon
as practicable following the Effective Date of Termination, but in no event
beyond thirty (30) days from such date.
4.2 WITHHOLDING OF TAXES. The Company shall be entitled to withhold
from any amounts payable under this Agreement all taxes as legally shall be
required (including, without limitation, any United States federal taxes
and any other state, city, or local taxes).
Article 5. Excise Tax Equalization Payment
5.1 EXCISE TAX EQUALIZATION PAYMENT. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit
under this Agreement, or under any other agreement with or plan of the
Company (in the aggregate, the "Total Payments"), if all or any part of the
Total Payments will be subject to the tax (the "Excise Tax") imposed by
Section 4999 of the Code (or any similar tax that may hereafter be
imposed), the Company shall pay to the Executive in cash an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive after deduction of any Excise Tax upon the Total Payments and any
federal, state, and local income tax, penalties, interest, and Excise Tax
upon the Gross-Up Payment provided for by this Section 5.1 (including FICA
and FUTA), shall be equal to the Total Payments. Such payment shall be made
by the Company to the Executive as soon as practical following the
effective date of termination, but in no event beyond thirty (30) days from
such date.
5.2. TAX COMPUTATION. For purposes of determining whether any of the
Total Payments will be subject to the Excise Tax and the amounts of such
Excise Tax:
(a) Any other payments or benefits received or to be received by
the Executive in connection with a Change in Control of the
Company or the Executive's termination of employment (whether
pursuant to the terms of this Agreement or any other plan,
arrangement, or agreement with the Company, or with any Person
whose actions result in a Change in Control of the Company or
any Person affiliated with the Company or such Persons) shall
be treated as "parachute payments" within the meaning of
Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be
treated as subject to the Excise Tax, unless in the opinion of
tax counsel as supported by the Company's independent auditors
and acceptable to the Executive, such other payments or
benefits (in whole or in part) do not constitute parachute
9
<PAGE>
payments, or unless such excess parachute payments (in whole
or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject
to the Excise Tax;
(b) The amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of: (i)
the total amount of the Total Payments; or (ii) the amount of
excess parachute payments within the meaning of
Section 280G(b)(1) (after applying clause (a) above); and
(c) The value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made, and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the
Executive's residence on the Effective Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
5.3 SUBSEQUENT RECALCULATION. In the event the Internal Revenue
Service adjusts the computation of the Company under Section 5.2 herein so
that the Executive did not receive the greatest net benefit, the Company
shall reimburse the Executive for the full amount necessary to make the
Executive whole, plus a market rate of interest, as determined by the
Committee.
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company
shall create a Trust (which shall be an irrevocable grantor trust within
the meaning of Sections 671-678 of the Internal Revenue Code) for the
benefit of the Executive and Beneficiaries, as appropriate. The Trust shall
have a Trustee as selected by the Company, and shall have certain
restrictions as to the Company's ability to amend the Trust or cancel
benefits provided thereunder. Any assets contained in the Trust shall, at
all times, be specifically subject to the claims of the Company's general
creditors in the event of bankruptcy or insolvency; such terms to be
specifically defined within the provisions of the Trust, along with the
required procedure for notifying the Trustee of any bankruptcy or
insolvency.
10
<PAGE>
At any time following the Effective Date hereof, the Company may deposit
assets in the Trust in an amount equal to or less than the aggregate
Severance Benefits which may become due to the Executive under Sections
3.1, 3.2, and 5.1 of this Agreement.
Upon the first to occur of a Potential Change in Control or Change in
Control, the Company shall deposit assets in such Trust in an amount equal
to the aggregate Severance Benefits which may become due to the Executive
under Sections 3.1, 3.2, and 5.1 of this Agreement, except to the extent
that assets equal to any Severance Benefits payable pursuant to Sections
3.3(f) or 3.3(g) are held in or required to be deposited in a separate
grantor trust which is in effect as of the Potential Change in Control or
Change in Control, as applicable.
Article 7. The Company's Payment Obligation
The Company's obligation to make the payments and the arrangements
provided for herein shall be absolute and unconditional, and shall not be
affected by any circumstances, including, without limitation, any offset,
counterclaim, recoupment, defense, or other right which the Company may
have against the Executive or anyone else. All amounts payable by the
Company hereunder shall be paid without notice or demand. Each and every
payment made hereunder by the Company shall be final, and the Company shall
not seek to recover all or any part of such payment from the Executive or
from whomsoever may be entitled thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangements made under any provision
of this Agreement, and the obtaining of any such other employment shall in
no event effect any reduction of the Company's obligations to make the
payments and arrangements required to be made under this Agreement, except
to the extent provided in Section 3.3(e) herein.
Article 8. Legal Remedies
8.1 PAYMENT OF LEGAL FEES. To the extent permitted by law, the Company
shall pay all legal fees, costs of litigation, prejudgment interest, and
other expenses incurred in good faith by the Executive as a result of the
Company's refusal to provide the Severance Benefits to which the Executive
becomes entitled under this Agreement, or as a result of the Company's
contesting the validity, enforceability, or interpretation of this
Agreement, or as a result of any conflict between the parties pertaining to
this Agreement; provided, however, that the Company shall be reimbursed by
the Executive for all such fees and expenses in the event the Executive
fails to prevail with respect to any one material issue of dispute in
connection with such legal action.
8.2 ARBITRATION. The Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising
11
<PAGE>
under or in connection with this Agreement settled by arbitration,
conducted before a panel of three (3) arbitrators sitting in a location
selected by the Executive within fifty (50) miles from the location of his
employment with the Company, in accordance with the rules of the American
Arbitration Association then in effect.
Judgment may be entered on the award of the arbitrator in any court
having proper jurisdiction. All expenses of such arbitration, including the
fees and expenses of the counsel for the Executive, shall be borne by the
Company; provided, however, that the Company shall be reimbursed by the
Executive for all such fees and expenses in the event the Executive fails
to prevail with respect to any one material issue of dispute in connection
with such legal action.
Article 9. Outplacement Assistance
Following a Qualifying Termination (as described in Section 3.2 herein),
the Executive shall be reimbursed by the Company for the costs of all
outplacement services obtained by the Executive within the two (2) year
period after the effective date of termination; provided, however, that the
total reimbursement shall be limited to an amount equal to fifteen percent
(15%) of the Executive's Base Salary as of the effective date of
termination.
Article 10. Successors and Assignment
10.1 SUCCESSORS TO THE COMPANY. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or
otherwise) of all or substantially all of the business and/or assets of the
Company or of any division or subsidiary thereof to expressly assume and
agree to perform the Company's obligations under this Agreement in the same
manner and to the same extent that the Company would be required to perform
them if no such succession had taken place. Failure of the Company to
obtain such assumption and agreement prior to the effective date of any
such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the
same terms as [he/she] would be entitled to hereunder if they had
terminated [his/her] employment with the Company voluntarily for Good
Reason. Except for the purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Effective
Date of Termination.
10.2 ASSIGNMENT BY THE EXECUTIVE. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If the Executive dies while any
amount would still be payable to [him/her] hereunder had [he/she] continued
to live, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's
12
<PAGE>
Beneficiary. If the Executive has not named a Beneficiary, then such
amounts shall be paid to the Executive's devisee, legatee, or other
designee, or if there is no such designee, to the Executive's estate.
Article 11. Miscellaneous
11.1 EMPLOYMENT STATUS. Except as may be provided under any other
agreement between the Executive and the Company, the employment of the
Executive by the Company is "at will," and, prior to the effective date of
a Change in Control, may be terminated by either the Executive or the
Company at any time, subject to applicable law.
11.2 BENEFICIARIES. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must
be in the form of a signed writing acceptable to the Committee. The
Executive may make or change such designations at any time.
11.3 SEVERABILITY. In the event any provision of this Agreement shall
be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement
shall be construed and enforced as if the illegal or invalid provision had
not been included. Further, the captions of this Agreement are not part of
the provisions hereof and shall have no force and effect.
11.4 MODIFICATION. No provision of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is
agreed to in writing and signed by the Executive and by an authorized
member of the Committee, or by the respective parties' legal
representatives and successors.
11.5 APPLICABLE LAW. To the extent not preempted by the laws of the
United States, the laws of the state of Michigan shall be the controlling
law in all matters relating to this Agreement.
OLD KENT FINANCIAL
CORPORATION
By _________________________________
Mary E. Tuuk
Its Vice President and Secretary
____________________________________
"Employee"
13
<PAGE>
EXHIBIT 10.19
AMENDMENT TO EXECUTIVE STOCK OPTION PLAN OF 1986
OLD KENT FINANCIAL CORPORATION
RESOLUTIONS OF THE
BOARD OF DIRECTORS
February 17, 1997
AMENDMENT OF EXECUTIVE STOCK
OPTION PLAN OF 1986 AND STOCK
OPTION INCENTIVE PLAN OF 1992
WHEREAS, the Personnel Committee recommends certain amendments to the
Corporation's Executive Stock Option Plan of 1986 (the "1986 Plan") and
Stock Option Incentive Plan of 1992 (the "1992 Plan") to allow certain
stock options and stock appreciation rights to be transferred and to make
certain technical changes to conform such plans to the revised securities
laws;
IT IS THEREFORE RESOLVED, that Section 4(a) of the 1986 Plan is
amended in its entirety to read as follows:
(a) The Plan shall be administered by the Personnel
Committee of the Board or, alternatively at the option of the
Board, the Board may appoint a Stock Option Plan Committee. The
Committee shall consist of at least two members of the Board and
all of its members shall be "non-employee directors" as defined
in Rule 16b-3 issued under the Securities Exchange Act of 1934,
as amended and as in effect from time to time.
FURTHER RESOLVED, that Section 11 of the 1986 Plan is amended in its
entirety to read as follows:
11. RESTRICTIONS ON TRANSFERABILITY.
(a) GENERAL. Options and Stock Appreciation Rights may be
transferred to a nominee ("Nominee"), provided, that as a
condition to any such transfer the transferee must execute a
written agreement permitting the Corporation to withhold from the
shares subject to the Option or Stock Appreciation Right a number
of shares or cash, as applicable, having a market value at least
equal to the amount of any federal, state or local withholding or
other taxes associated with or resulting from the exercise of the
Option or Stock Appreciation Right. Permissible transfers to a
Nominee must be approved by the Committee and may include, but
are not necessarily limited to, transfers to the Participant and
the Participant's spouse as joint tenants with right of
<PAGE>
survivorship, transfers to a revocable grantor trust established
by the Participant, transfers to a family limited partnership, or
other acceptable transfers as may be approved by the Committee.
All provisions of an Option or Stock Appreciation Right which are
determined with reference to the Participant, including without
limitation those which refer to the Participant's employment with
the Corporation or its Subsidiaries, shall continue to be
determined with reference to the Participant after any transfer
of an Option or Stock Appreciation Right.
(b) OTHER RESTRICTIONS. The Committee may impose other
restrictions on any shares of Common Stock acquired pursuant to
the exercise of an Option under the Plan as the Committee deems
advisable, including, without limitation, restrictions under
applicable federal or state securities laws.
FURTHER RESOLVED, that the terms of all outstanding Options previously
awarded under the 1986 Plan and the 1992 Plan may be amended accordingly.
2
<PAGE>
EXHIBIT 10.20
AMENDMENT TO STOCK OPTION INCENTIVE PLAN OF 1992
OLD KENT FINANCIAL CORPORATION
RESOLUTIONS OF THE
BOARD OF DIRECTORS
February 17, 1997
AMENDMENT OF EXECUTIVE STOCK
OPTION PLAN OF 1986 AND STOCK
OPTION INCENTIVE PLAN OF 1992
WHEREAS, the Personnel Committee recommends certain amendments to the
Corporation's Executive Stock Option Plan of 1986 (the "1986 Plan") and
Stock Option Incentive Plan of 1992 (the "1992 Plan") to allow certain
stock options and stock appreciation rights to be transferred and to make
certain technical changes to conform such plans to the revised securities
laws;
RESOLVED, that Section 4(a) of the 1992 Plan is amended in its
entirety to read as follows:
(a) The Plan shall be administered by the Personnel
Committee of the Board or, alternatively at the option of the
Board, the Board may appoint a Stock Option Plan Committee. The
Committee shall consist of at least two members of the Board and
all of its members shall be "non-employee directors" as defined
in Rule 16b-3 issued under the Securities Exchange Act of 1934,
as amended and as in effect from time to time.
FURTHER RESOLVED, that Section 11 of the 1992 Plan is amended in its
entirety to read as follows:
11. RESTRICTIONS ON TRANSFERABILITY.
(a) GENERAL. Unless the Committee otherwise consents
(before or after the grant of an Option or Right) or unless the
Option Agreement or Right provides otherwise; (i) no Incentive
Stock Options granted under the Plan may be sold, exchanged,
transferred, pledged, assigned or otherwise alienated or
hypothecated except by will or the laws of descent and
distribution; and (ii) all Options that are not Incentive Stock
Options and all Rights not associated with Incentive Stock
Options may be transferred to a nominee ("Nominee"), provided,
that as a condition to any such transfer the transferee must
execute a written agreement permitting Old Kent to withhold from
the shares subject to the Option or Right a number of shares or
<PAGE>
cash, as applicable, having a market value at least equal to the
amount of any federal, state or local withholding or other taxes
associated with or resulting from the exercise of the Option or
Right. Permissible transfers to a Nominee must be approved by
the Committee and may include, but are not necessarily limited
to, transfers to the Participant and the Participant's spouse as
joint tenants with right of survivorship, transfers to a
revocable grantor trust established by the Participant, transfers
to a family limited partnership, or other acceptable transfers as
may be approved by the Committee. All provisions of an Option or
Right which are determined with reference to the Participant,
including without limitation those which refer to the
Participant's employment with Old Kent or its Subsidiaries, shall
continue to be determined with reference to the Participant after
any transfer of an Option or Right.
(b) OTHER RESTRICTIONS. The Committee may impose other
restrictions on any shares of Common Stock acquired pursuant to
the exercise of an Option under the Plan as the Committee deems
advisable, including, without limitation, restrictions under
applicable federal or state securities laws.
FURTHER RESOLVED, that the terms of all outstanding Options previously
awarded under the 1986 Plan and the 1992 Plan may be amended accordingly.
