<PAGE>
As filed with the Securities and Exchange Commission on April 30, 1997
Registration No. 333-__________
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
OLD KENT FINANCIAL CORPORATION OLD KENT CAPITAL TRUST I
(Exact Name of Registrant as (Exact Name of Registrant as
Specified in its Charter) Specified in its Charter)
MICHIGAN DELAWARE
(State or Other Jurisdiction of (State or Other Jurisdiction of
Incorporation or Organization) of Incorporation or Organization)
6711 6719
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
38-1986608 38-6685914
(IRS Employer Identification No.) (IRS Employer Identification No.)
111 LYON STREET, N.W.
GRAND RAPIDS, MICHIGAN 49503
(616) 771-5000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Each Registrant's Principal Executive Offices)
COPIES OF COMMUNICATIONS TO:
ALBERT T. POTAS GORDON R. LEWIS
SENIOR VICE PRESIDENT OF OLD KENT WARNER NORCROSS & JUDD LLP
FINANCIAL CORPORATION 900 OLD KENT BUILDING
REGULAR TRUSTEE OF OLD KENT 111 LYON STREET, N.W.
CAPITAL TRUST I GRAND RAPIDS, MICHIGAN 49503
111 LYON STREET, N.W. (616) 752-2752
GRAND RAPIDS, MICHIGAN 49503
(616) 771-5000
(Name, Address, Including Zip Code,
and Telephone Number, Including Area
Code, of Agent For Service for
Each Registrant)
Approximate date of commencement of proposed sale of the
securities to the public:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
<PAGE>
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there
is compliance with General Instruction G, check the following box: [ ]
________________
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
TITLE OF EACH AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES BE REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED PER UNIT<F1> PRICE<F1> FEE<F1>
<S> <C> <C> <C> <C>
Capital Securities of Old Kent $100,000,000 100% $100,000,000 $30,303.03
Capital Trust I
Floating Rate
Junior Subordinated -- -- -- N/A
Debentures of Old Kent
Financial Corporation <F2>
Old Kent Financial
Corporation Guarantee -- -- -- N/A
with respect to Capital
Securities<F3>
Total $100,000,000<F4> 100% $100,000,000<F5> $30,303.03
<FN>
<F1> Estimated solely for the purpose of computing the registration fee.
<F2> The Floating Rate Junior Subordinated Debentures were originally
purchased by Old Kent Capital Trust I (the "Trust") with the proceeds
of the sale of Capital Securities. No separate consideration will be
received for the Floating Rate Junior Subordinated Debentures
distributed upon liquidation of the Trust.
<F3> No separate consideration will be received for the Old Kent Financial
Corporation Guarantee.
<F4> This Registration Statement is deemed to cover the rights of holders
of the Junior Subordinated Debentures of Old Kent Financial
Corporation under the Indenture, the rights of holders of Capital
Securities of the Trust under the Declaration of Trust and the rights
of holders of Capital Securities under the Guarantee.
<PAGE>
<F5> Such amount represents the aggregate liquidation amount of the Capital
Securities to be exchanged hereunder and the principal amount of the
Junior Subordinated Debentures that may be distributed upon any
liquidation of the Trust.
</FN>
</TABLE>
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
===========================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
PROSPECTUS SUBJECT TO COMPLETION, DATED _________, 1997
OLD KENT CAPITAL TRUST I
OFFER TO EXCHANGE ITS FLOATING RATE SUBORDINATED
CAPITAL INCOME SECURITIES WHICH HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL
OF ITS OUTSTANDING FLOATING RATE SUBORDINATED
CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED TO THE EXTENT DESCRIBED HEREIN BY
OLD KENT FINANCIAL CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON _____________, 1997,
UNLESS EXTENDED.
Old Kent Capital Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby offers, upon the terms
and subject to the conditions set forth in this Prospectus (as the same may
be amended or supplemented from time to time, the "Prospectus") and in the
accompanying Letter of Transmittal (which together constitute the "Exchange
Offer") to exchange up to $100,000,000 aggregate Liquidation Amount of its
Floating Rate Subordinated Capital Income Securities (the "New Capital
Securities") which have been registered under the Securities Act of 1933,
as amended (the "Securities Act"), pursuant to the Registration Statement
(as defined herein) of which this Prospectus constitutes a part, for an
equal Liquidation Amount of its outstanding Floating Rate Subordinated
Capital Income Securities (the "Old Capital Securities"), of which
$100,000,000 aggregate Liquidation Amount is outstanding. Pursuant to the
Exchange Offer, Old Kent Financial Corporation, a Michigan corporation (the
"Company"), is exchanging (i) the Old Guarantee for the New Guarantee and
(ii) Old Junior Subordinated Debentures for New Junior Subordinated
Debentures in an amount proportionate to the amount of New Capital
Securities exchanged for Old Capital Securities in the Exchange Offer. The
<PAGE>
New Guarantee and New Junior Subordinated Debentures also have been
registered under the Securities Act. The Old Capital Securities, the Old
Guarantee and the Old Junior Subordinated Debentures are collectively
referred to herein as the "Old Securities" and the New Capital Securities,
the New Guarantee and the New Junior Subordinated Debentures are
collectively referred to herein as the "New Securities."
The terms of the New Securities are identical in all material respects
to the respective terms of the Old Securities, except that (i) the New
Securities have been registered under the Securities Act and therefore will
not be subject to certain restrictions on transfer applicable to the Old
Securities, (ii) the New Capital Securities will not provide for Additional
Distributions (as defined herein) upon a Registration Default (as defined
herein), and (iii) the New Junior Subordinated Debentures will not provide
for Additional Interest (as defined herein) upon a Registration Default.
See "Description of New Capital Securities" and "Description of Old Capital
Securities." The New Capital Securities are being offered for exchange in
order to satisfy certain obligations of the Company and the Trust under the
Registration Rights Agreement dated as of January 31, 1997 (the "Registration
Rights Agreement") among the Company, the Trust and Lehman Brothers Inc.
("Lehman Brothers"), which was the initial purchaser of the Capital Securities.
(continued on following page)
This Prospectus and the Letter of Transmittal are first being mailed
to all holders of Old Capital Securities on _______________, 1997.
SEE "RISK FACTORS" COMMENCING ON PAGE 7 FOR CERTAIN INFORMATION THAT
SHOULD BE CONSIDERED BY HOLDERS IN DECIDING WHETHER TO TENDER OLD CAPITAL
SECURITIES IN THE EXCHANGE OFFER.
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _________ __, 1997.
<PAGE>
(continued from previous page)
The New Capital Securities and the Old Capital Securities
(collectively, the "Capital Securities") represent beneficial interests in
the assets of the Trust. The Company is the owner of all of the beneficial
interests represented by common securities of the Trust (the "Common
Securities," and together with the Capital Securities, the "Trust
Securities"). Bankers Trust Company is the Property Trustee of the Trust
and Bankers Trust (Delaware) is the Delaware Trustee of the Trust. The
Trust exists for the sole purpose of issuing the Trust Securities and
investing the proceeds thereof in the Junior Subordinated Debentures (as
defined herein). The Junior Subordinated Debentures will mature on
February 1, 2027 (the "Stated Maturity Date"). The Capital Securities will
have a preference over the Common Securities under certain circumstances
with respect to cash distributions and amounts payable on liquidation,
redemption or otherwise. See "Description of New Capital
Securities--Subordination of Common Securities."
As used herein, (i) the "Indenture" means the Indenture, dated as of
January 31, 1997, as amended and supplemented from time to time, between
the Company and Bankers Trust Company, as Debenture Trustee (the "Debenture
Trustee"), (ii) the "Declaration of Trust" means the Amended and Restated
Declaration of Trust dated as of January 31, 1997, relating to the Trust
among the Company, as Sponsor; Bankers Trust Company, as Property Trustee
(the "Property Trustee"); Bankers Trust (Delaware), as Delaware Trustee
(the "Delaware Trustee"); and the Regular Trustees named therein. In
addition, as the context may require, unless otherwise expressly stated,
(i) the term "Junior Subordinated Debentures" includes the Old Junior
Subordinated Debentures and the New Junior Subordinated Debentures (as
defined herein) and (ii) the term "Guarantee" includes the Old Guarantee
and the New Guarantee.
The Trust is making the Exchange Offer in reliance on the position of
the staff of the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") as set forth in certain interpretive
letters addressed to third parties in other transactions. However, neither
the Company nor the Trust has sought its own interpretive letter and there
can be no assurance that the staff of the Division of Corporation Finance
of the Commission would make a similar determination with respect to the
Exchange Offer as it has in such interpretive letters to third parties.
Certain holders of Old Capital Securities may not be able to participate in
the Exchange Offer. See "The Exchange Offer--Resales of New Capital
Securities."
Prior to the Exchange Offer, there has been only a limited secondary
market and no public market for the Old Capital Securities. The New
Capital Securities will be a new issue of securities for which there
currently is no market. Although Lehman Brothers has informed the Company
and the Trust that it currently intends to make a market in the New Capital
<PAGE>
Securities, it is not obligated to do so, and any such market making may be
discontinued at any time without notice. Accordingly, there can be no
assurance as to the development or liquidity of any market for the New
Capital Securities. Neither the Company nor the Trust currently intends to
apply for listing of the New Capital Securities on any securities exchange
or for quotation through the National Association of Securities Dealers
Automated Quotation System.
Any Old Capital Securities not tendered and accepted in the Exchange
Offer will remain outstanding and will be entitled to all the same rights
and will be subject to the same limitations applicable thereto under the
Declaration of Trust (except for those rights which terminate upon
consummation of the Exchange Offer). Following consummation of the
Exchange Offer, the holders of Old Capital Securities will continue to be
subject to all of the existing restrictions upon transfer thereof and
neither the Company nor the Trust will have any further obligation to such
holders (other than under certain limited circumstances) to provide for
registration under the Securities Act of the Old Capital Securities held by
them. To the extent that Old Capital Securities are tendered and accepted
in the Exchange Offer, a holder's ability to sell untendered Old Capital
Securities could be adversely affected. See "Risk Factors--Consequences of
a Failure to Exchange Old Capital Securities."
(continued from previous page)
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE
DECIDING WHETHER TO TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE
EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange prior to 5:00
p.m., New York City time, _________________, 1997 (the "Expiration Date"),
unless the Exchange Offer is extended by the Company or the Trust (in which
case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended). Tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date. The
Exchange Offer is not conditioned upon any minimum Liquidation Amount of
Old Capital Securities being tendered for exchange. However, the Exchange
Offer is subject to certain events and conditions which may be waived by
the Company or the Trust and to the terms and provisions of the
Registration Rights Agreement.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such Old
Capital Securities for any period from and after the last Distribution Date
with respect to such Old Capital Securities prior to the original issue date
of the New Capital Securities and will be deemed to have waived the right to
receive any Distributions on such Old Capital Securities accumulated from
and after such Distribution Date. However, because Distributions on the New
<PAGE>
Capital Securities will accumulate from the last Distribution Date with
respect to Old Capital Securities prior to the original issue date of the New
Capital Securities, the amount of the Distributions received by holders whose
Old Capital Securities are accepted for exchange will not be affected by the
exchange. See "The Exchange Offer--Distributions on New Capital Securities."
Neither the Company nor the Trust will receive any cash proceeds
from the issuance of the New Capital Securities offered hereby. No
dealer-manager is being used in connection with this Exchange Offer.
See "Plan of Distribution."
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THIS
EXCHANGE OFFER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE
TRUST. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY OR THE TRUST SINCE THE DATE HEREOF.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR A SOLICITATION BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR
IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO
DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") , and in
accordance therewith files reports and other information with the
Commission. Reports, proxy statements, information statements and other
information filed by the Company with the Commission pursuant to the
informational requirements of the Exchange Act may be inspected and copied
at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and
at the following Regional Offices of the Commission: Chicago Regional
Office, Suite 1400, Citicorp Center, 14th Floor, 500 West Madison Street,
Chicago, Illinois 60661; and New York Regional Office, 7 World Trade
Center, 13th Floor, Suite 1300, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. The Commission also maintains a Web site
(http://www.sec.gov) that contains reports, proxy statements, information
statements and other information regarding the Company.
No separate financial statements of the Trust have been included
herein. The Company and the Trust do not consider that such financial
statements would be material to holders of the Capital Securities because
<PAGE>
the Trust is a newly formed special purpose entity, has no operating
history or independent operations and is not engaged in and does not
propose to engage in any activity other than holding the Junior
Subordinated Debentures and issuing the Trust Securities. In addition, the
Company does not expect that the Trust will file reports under the Exchange
Act with the Commission.
This Prospectus constitutes a part of a registration statement on Form
S-4 (the "Registration Statement") filed by the Company and the Trust with
the Commission under the Securities Act. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts
of which are omitted in accordance with the rules and regulations of the
Commission, and reference is hereby made to the Registration Statement and
to the exhibits relating thereto for further information with respect to
the Company, the Trust and the New Securities. Any statements contained
herein concerning the provisions of any documents are not necessarily
complete, and, in each instance, reference is made to the copy of such
document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON
REQUEST FROM OLD KENT FINANCIAL CORPORATION, ATTN. CORPORATE SECRETARY, 111
LYON STREET, N.W., GRAND RAPIDS, MI 49503, TELEPHONE (616) 771-5272. IN
ORDER TO ENSURE THE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE
MADE BY [INSERT DATE FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION DATE OF THE
EXCHANGE OFFER.]
The Company's Annual Report on Form 10-K for the year ended December
31, 1996, and the Company's Current Reports on Form 8-K dated January 22,
1997 and January 27, 1997 previously filed by the Company with the
Commission, are incorporated into this Prospectus by reference.
Each document filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the Exchange Offer
shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing such document. Any statement contained
herein, or in a document all or a portion of which is incorporated or
deemed to be incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
<PAGE>
As used herein, the terms "Prospectus" and "herein" mean this
Prospectus, including the documents incorporated or deemed to be
incorporated herein by reference, as the same may be amended, supplemented
or otherwise modified from time to time. Statements contained in this
Prospectus as to the contents of any contract or other document referred to
herein do not purport to be complete, and where reference is made to the
particular provisions of such contract or other document, such provisions
are qualified in all respects by reference to all of the provisions of such
contract or other document. The Company will provide without charge to any
person to whom a copy of this Prospectus is delivered, upon written or oral
request, a copy of any and all of the documents that have been or may be
incorporated by reference herein (other than exhibits to such documents
which are not specifically incorporated by reference into such documents).
Requests for such documents should be directed to the Company at the
address and telephone number set forth above.
<PAGE>
TABLE OF CONTENTS
PROSPECTUS SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
RATIO OF EARNINGS TO FIXED CHARGES . . . . . . . . . . . . . . . . . . . 13
ACCOUNTING TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 13
REGULATORY TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SELECTED CONSOLIDATED FINANCIAL DATA . . . . . . . . . . . . . . . . . . 15
THE TRUST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
THE EXCHANGE OFFER . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
DESCRIPTION OF NEW CAPITAL SECURITIES. . . . . . . . . . . . . . . . . . 26
DESCRIPTION OF NEW JUNIOR SUBORDINATED DEBENTURES. . . . . . . . . . . . 35
DESCRIPTION OF NEW GUARANTEE . . . . . . . . . . . . . . . . . . . . . . 43
DESCRIPTION OF OLD SECURITIES. . . . . . . . . . . . . . . . . . . . . . 45
RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE. . . . . . . . 46
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES. . . . . . . . . . 47
BOOK-ENTRY ISSUANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
BENEFIT PLAN CONSIDERATIONS. . . . . . . . . . . . . . . . . . . . . . . 54
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . 56
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
INDEPENDENT AUDITORS . . . . . . . . . . . . . . . . . . . . . . . . . . 57
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING IS A SUMMARY OF CERTAIN INFORMATION CONTAINED ELSEWHERE
IN THIS PROSPECTUS. THIS SUMMARY IS QUALIFIED BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS (INCLUDING THE NOTES THERETO)
APPEARING ELSEWHERE, OR INCORPORATED BY REFERENCE, IN THIS PROSPECTUS.
THE TRUST
Old Kent Capital Trust I (the "Trust") is a statutory business trust
formed under Delaware law pursuant to the Declaration of Trust executed by
the Corporation, as Sponsor; Bankers Trust Company, as Property Trustee;
Bankers Trust (Delaware), as Delaware Trustee; and the three individual
Regular Trustees named therein and the filing of a certificate of trust
with the Secretary of State of Delaware. The Trust's business and
affairs are conducted by the Property Trustee, the Delaware Trustee, and
the three individual Regular Trustees who are employees or officers of or
affiliated with the Company. The Trust exists for the exclusive purposes of
(i) issuing and selling the Trust Securities, (ii) using the proceeds from
the sale of the Trust Securities to acquire the Junior Subordinated
Debentures issued by the Company and (iii) engaging in only those other
activities necessary or incidental thereto (such as registering the
transfer of the Trust Securities). Accordingly, the Junior Subordinated
Debentures will be the sole assets of the Trust, and payments under the
Junior Subordinated Debentures will be the sole revenues of the Trust. All
of the Common Securities of the Trust are owned by the Company.
THE COMPANY
Old Kent Financial Corporation (the "Company") is a bank holding
company. Its principal banking subsidiaries, Old Kent Bank (Grand Rapids,
Michigan) and Old Kent Bank (Elmhurst, Illinois) (collectively, the
"Banks"), serve more than 100 communities in Michigan and Illinois with
over 200 banking offices. These Banks engage in commercial and retail
banking and provide trust and other financial services. Approximately 83%
of the Company's deposits and 83% of the Company's loans are associated
with banking offices serving the lower peninsula of Michigan. The balance
of banking assets are associated with offices serving northeastern
Illinois. The Company's mortgage companies operate 79 offices located in 17
states. The Company maintains its principal executive offices at 111 Lyon
Street, N.W., Grand Rapids, Michigan 49503, telephone number (616) 771-5000.
THE EXCHANGE OFFER
The Exchange Offer Up to $100,000,000 aggregate Liquidation
Amount of New Capital Securities are being
offered in exchange for a like aggregate
Liquidation Amount of Old Capital Securities.
1
<PAGE>
The Company and the Trust are making the
Exchange Offer in order to satisfy their
obligations under the Registration Rights
Agreement relating to the Old Capital
Securities. For a description of the
procedures for tendering Old Capital
Securities, see "The Exchange
Offer--Procedures for Tendering Old Capital
Securities."
Expiration Date 5:00 p.m., New York City time, on
___________, 1997, unless the Exchange Offer
is extended by the Company or the Trust (in
which case the Expiration Date will be the
latest date and time to which the Exchange
Offer is extended). See "The Exchange
Offer--Terms of the Exchange Offer."
Conditions to the Exchange The Exchange Offer is subject to certain
Offer conditions, which may be waived by the
Company and the Trust in their discretion.
The Exchange Offer is not conditioned upon
any minimum Liquidation Amount of Old Capital
Securities being tendered. See "The Exchange
Offer--Conditions to the Exchange Offer."
The Company and the Trust reserve the right,
subject to applicable law, at any time and
from time to time, (i) to delay the
acceptance of the Old Capital Securities for
exchange, (ii) to terminate the Exchange
Offer if certain specified conditions have
not been satisfied, (iii) to extend the
Expiration Date of the Exchange Offer and
retain all Old Capital Securities tendered
pursuant to the Exchange Offer, subject,
however, to the right of holders of Old
Capital Securities to withdraw their tendered
Old Capital Securities, or (iv) to waive any
condition or otherwise amend the terms of the
Exchange Offer in any respect. See "The
Exchange Offer--Terms of the Exchange Offer."
Withdrawal Rights Tenders of Old Capital Securities may be
withdrawn at any time on or prior to the
Expiration Date by delivering a written
notice of withdrawal to the Exchange Agent in
conformity with certain procedures set forth
2
<PAGE>
below under "The Exchange Offer--Withdrawal
Rights."
Procedures for Tendering Old Tendering holders of Old Capital Securities
Capital Securities must complete and sign a Letter of Trans-
mittal in accordance with the instructions
contained therein and forward the same by
mail, facsimile or hand delivery, together
with any other required documents, to the
Exchange Agent, either with the Old Capital
Securities to be tendered or in compliance
with the specified procedures for guaranteed
delivery of Old Capital Securities. Certain
brokers, dealers, commercial banks, trust
companies and other nominees may also effect
tenders by book-entry transfer, including an
Agent's Message in lieu of the Letter of
Transmittal. Holders of Old Capital
Securities registered in the name of a
broker, dealer, commercial bank, trust
company or other nominee are urged to contact
such person promptly if they wish to tender
Old Capital Securities pursuant to the
Exchange Offer. See "The Exchange
Offer--Procedures for Tendering Old Capital
Securities."
Letters of Transmittal and certificates
representing Old Capital Securities should
not be sent to the Company or the Trust. Such
documents should only be sent to the Exchange
Agent. Questions regarding how to tender and
requests for information should be directed
to the Exchange Agent. See "The Exchange
Offer--The Exchange Agent."
Resales of New Capital The Company and the Trust are making the
Securities Exchange Offer in reliance on the position
taken by the staff of the Division of
Corporation Finance of the Commission in
certain interpretive letters addressed to
third parties in other transactions. However,
neither the Company nor the Trust has sought
its own interpretive letter and there can be
no assurance that the staff of the Division
of Corporation Finance of the Commission
would make a similar determination with
respect to the Exchange Offer. Based on these
3
<PAGE>
interpretations, and subject to the two
immediately following sentences, the Company
and the Trust believe that New Capital
Securities issued pursuant to the Exchange
Offer in exchange for Old Capital Securities
may be offered for resale, resold and
otherwise transferred by a holder thereof
(other than a holder who is a broker-dealer)
without further compliance with the
registration and prospectus delivery
requirements of the Securities Act, provided
that such New Capital Securities are acquired
in the ordinary course of such holder's
business and that such holder is not
participating, and has no arrangement or
understanding with any person to participate,
in a distribution (within the meaning of the
Securities Act) of such New Capital
Securities. However, any holder of Old
Capital Securities who is an "affiliate" of
the Company or the Trust within the meaning
of Rule 405 under the Securities Act or who
intends to participate in the Exchange Offer
for the purpose of distributing New Capital
Securities, or any broker-dealer who
purchased Old Capital Securities from the
Trust to resell pursuant to Rule 144A under
the Securities Act ("Rule 144A") or any other
available exemption under the Securities Act,
(i) will not be able to rely on the
interpretations of the staff of the Division
of Corporation Finance of the Commission set
forth in the above-mentioned interpretive
letters, (ii) will not be permitted or
entitled to tender such Old Capital
Securities in the Exchange Offer and (iii)
must comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with any sale or
other transfer of such Old Capital Securities
unless such sale is made pursuant to an
exemption from such requirements. In
addition, as described below, if any
broker-dealer holds Old Capital Securities
acquired for its own account as a result of
market-making or other trading activities (a
"Participating Broker-Dealer") and exchanges
such Old Capital Securities for New Capital
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Securities, then such Participating
Broker-Dealer must deliver a prospectus
meeting the requirements of the Securities
Act in connection with any resales of such
New Capital Securities. See "Plan of
Distribution" and "The Exchange
Offer--Resales of New Capital Securities."
Each holder of Old Capital Securities who
wishes to exchange Old Capital Securities for
New Capital Securities in the Exchange Offer
will be required to represent that (i) it is
not an "affiliate" of the Company or the
Trust, (ii) any New Capital Securities to be
received by it are being acquired in the
ordinary course of its business, (iii) it has
no arrangement or understanding with any
person to participate in a distribution
(within the meaning of the Securities Act) of
such New Capital Securities, and (iv) if such
holder is not a broker-dealer, such holder is
not engaged in, and does not intend to engage
in, a distribution (within the meaning of the
Securities Act) of such New Capital
Securities. The Letter of Transmittal
contains the foregoing representations.
Exchange Agent The exchange agent with respect to the
Exchange Offer is Bankers Trust Company (the
"Exchange Agent"). The addresses, and
telephone and facsimile numbers, of the
Exchange Agent are set forth in "The Exchange
Offer--Exchange Agent" and in the Letter of
Transmittal.
Use of Proceeds Neither the Company nor the Trust will
receive any cash proceeds from the issuance
of the New Capital Securities offered hereby.
Certain United States Holders of Old Capital Securities should
Federal Income Tax review the information set forth under
Considerations; ERISA "Certain United States Federal Income Tax
Considerations Considerations" and "ERISA Considerations"
prior to tendering Old Capital Securities in
the Exchange Offer.
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<PAGE>
THE NEW CAPITAL SECURITIES
New Capital Securities Up to $100,000,000 aggregate Liquidation
Offered Amount of the Trust's New Capital
Securities which have been registered under
the Securities Act (Liquidation Amount $1,000
per New Capital Security). The New Capital
Securities will be issued and the Old Capital
Securities were issued under the Declaration
of Trust. The New Capital Securities and any
Old Capital Securities which remain
outstanding after consummation of the
Exchange Offer will vote together as a single
class for purposes of determining whether
holders of the requisite percentage in
outstanding Liquidation Amount thereof have
taken certain actions or exercised certain
rights under the Declaration of Trust. See
"Description of New Capital
Securities--Voting Rights; Amendment of the
Declaration of Trust." The terms of the New
Capital Securities are identical in all
material respects to the terms of the Old
Capital Securities, except that the New
Capital Securities have been registered under
the Securities Act and will not be subject to
certain restrictions on transfer applicable
to the Old Capital Securities and will not
provide for Additional Distributions upon a
Registration Default. See "The Exchange
Offer--Purpose of the Exchange Offer,"
"Description of New Capital Securities" and
"Description of Old Securities."
Distributions Holders of New Capital Securities will be
entitled to receive cumulative cash
distributions at a variable annual rate equal
to LIBOR plus 0.80% of the Liquidation Amount
of $1,000 per New Capital Security, accruing
from the last Distribution Date on the Old
Capital Securities prior to the consummation
of the Exchange Offer and payable quarterly
in arrears on the 1st day of February, May,
August and November of each year commencing
on the first Distribution Date (as defined
herein) occurring after consummation of the
Exchange Offer. The distribution rate and the
distribution and other payment dates for the
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<PAGE>
Capital Securities will correspond to the
interest rate and interest and other payment
dates on the Junior Subordinated Debentures.
See "Description of New Capital Securities"
and "The Exchange Offer--Distributions on New
Capital Securities."
Extension Periods Distributions on the New Capital Securities
will be deferred for the duration of any
Extension Period elected by the Company with
respect to the payment of interest on the New
Junior Subordinated Debentures for up to 20
consecutive quarters. See "Description of
New Capital Securities"; "Description of New
Junior Subordinated Debentures--Option to
Extend Interest Payment Period" and "Certain
United States Federal Income Tax
Considerations--Interest Income and Original
Issue Discount."
Absence of Market for the The New Capital Securities will be a new
New Capital Securities issue of securities for which there
currently is no market. Although Lehman
Brothers has informed the Company and the
Trust that it currently intends to make a
market in the New Capital Securities, it is
not obligated to do so, and any such market
making may be discontinued at any time
without notice. Accordingly, there can be no
assurance as to the development or liquidity
of any market for the New Capital Securities.
The Trust and the Company do not intend to
apply for listing of the New Capital
Securities on any securities exchange or for
quotation through the National Association of
Securities Dealers Automated Quotation
System. See "Risk Factors--Absence of Public
Market."
Junior Subordinated The sole assets of the Trust are the
Debentures Junior Subordinated Debentures of the
Company. The Junior Subordinated Debentures
will mature on February 1, 2027. The Junior
Subordinated Debentures will rank subordinate
and junior in right of payment to all
Indebtedness (as defined herein) of the
Company. In addition, the Company's
obligations under the Junior Subordinated
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<PAGE>
Debentures will be effectively subordinated
to all existing and future liabilities and
obligations of its subsidiaries. See "Risk
Factors--Ranking of Subordinate Obligations
Under the Guarantee and the Junior
Subordinated Debentures", "Risk Factors--
Status of Company as Holding Company" and
"Description of New Junior Subordinated
Debentures--Subordination".
Guarantee Payment of distributions out of moneys held
by the Trust and payments on liquidation of
the Trust or the redemption of Capital
Securities are guaranteed by the Company to
the extent the Trust has funds available
therefor. If the Company does not make
principal or interest payments on the Junior
Subordinated Debentures, the Trust will not
have sufficient funds to make Distributions
on the Capital Securities, in which event the
Guarantee shall not apply to such
Distributions until the Trust has sufficient
funds available therefor. The Company's
obligations under the Guarantee, taken
together with its obligations under the
Junior Subordinated Debentures and the
Indenture, including its obligation to pay
all costs, expenses and liabilities of the
Trust (other than with respect to the Capital
Securities), constitute a full and
unconditional guarantee of all of the Trust's
obligations under the Capital Securities. See
"Description of New Guarantee" and
"Relationship Among the New Capital
Securities, the Junior Subordinated
Debentures and the Guarantee." The
obligations of the Company under the
Guarantee are subordinate and junior in right
of payment to all general liabilities of the
Company (with certain exceptions). See "Risk
Factors--Ranking of Subordinated Obligations
Under the Guarantee and the Junior
Subordinated Debentures" and "Description of
New Guarantee".
Right to Defer Interest The Company has the right, so long as no
Indenture Event of Default (as defined
herein) has occurred or is continuing, to
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<PAGE>
defer payment of interest on the Junior
Subordinated Debentures by extending the
interest payment period on the Junior
Subordinated Debentures, from time to time,
for up to 20 consecutive quarters (each, an
"Extension Period"). There could be multiple
Extension Periods of varying lengths
throughout the term of the Junior
Subordinated Debentures. If interest payments
on the Junior Subordinated Debentures are so
deferred, distributions on the Capital
Securities will also be deferred for an
equivalent period and 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, 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 that rank PARI
PASSU with or junior to the Junior
Subordinated Debentures 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 with or junior to the Junior
Subordinated 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 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
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<PAGE>
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
ranks PARI PASSU with or junior to such
stock)). During an Extension Period, interest
on the Junior Subordinated Debentures will
continue to accrue (and the amount of
Distributions to which holders of the Capital
Securities are entitled will accumulate) at a
variable annual rate equal to LIBOR plus
0.80%, compounded quarterly. During an
Extension Period, holders of Capital
Securities will be required to include the
interest (and DE MINIMIS original issue
discount ("OID"), if any, referred to below)
on their PRO RATA share of the Junior
Subordinated Debentures in their gross income
as OID.
Redemption The Junior Subordinated Debentures are
redeemable by the Company in whole or in part
on or after February 1, 2007, or at any time,
in whole but not in part, upon the occurrence
of a Special Event (as defined herein), in
either case subject to any necessary prior
approval of the Federal Reserve. If the
Junior Subordinated Debentures are redeemed,
the Trust must redeem Trust Securities having
an aggregate liquidation amount equal to the
aggregate principal amount of the Junior
Subordinated Debentures so redeemed. The
Trust Securities will be redeemed upon
maturity of the Junior Subordinated
Debentures. See "Description of New Capital
Securities--Redemption--Mandatory Redemption"
and "--Special Event Redemption or
Distribution of Junior Subordinated
Debentures".
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<PAGE>
Liquidation of the Trust Upon the occurrence and continuation of a
Special Event, the Company will have the
right, subject to any necessary prior
approval of the Federal Reserve to dissolve
the Trust and cause the Junior Subordinated
Debentures to be distributed to the holders
of the Capital Securities and the Common
Securities in liquidation of the Trust. See
"Description of New Capital Securities--
Redemption--Special Event Redemption or
Distribution of Junior Subordinated
Debentures".
In the event of the liquidation of the Trust,
after satisfaction of the claims of creditors
of the Trust, if any, as provided by
applicable law, the holders of the Capital
Securities will be entitled to receive a
liquidation amount of $1,000 per Capital
Security plus accumulated and unpaid
Distributions thereon to the date of payment,
which may be in the form of a distribution of
such amount in Junior Subordinated Debentures
as described above. If such Liquidation
Distribution (as defined herein) 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 Capital Securities shall be paid on a PRO
RATA basis. The holder(s) 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 priority
over the Common Securities. See "Description
of New Capital Securities--Liquidation
Distribution Upon Dissolution".
Ratings The Capital Securities have been rated "a3"
by Moody's Investors Service, Inc. and "BBB+"
by Standard & Poor's Ratings Services. A
security rating is not a recommendation to
buy, sell or hold securities and may be
subject to revision or withdrawal at any time
by the assigning rating organization.
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<PAGE>
RISK FACTORS
PROSPECTIVE PURCHASERS SHOULD CAREFULLY REVIEW THE INFORMATION
CONTAINED ELSEWHERE IN THIS PROSPECTUS AND SHOULD PARTICULARLY CONSIDER THE
FOLLOWING MATTERS IN CONNECTION WITH THE EXCHANGE OFFER AND THE NEW CAPITAL
SECURITIES OFFERED HEREBY. CERTAIN STATEMENTS IN THIS PROSPECTUS AND
DOCUMENTS INCORPORATED HEREIN BY REFERENCE ARE FORWARD-LOOKING AND ARE
IDENTIFIED BY THE USE OF FORWARD-LOOKING WORDS OR PHRASES SUCH AS
"INTENDED," "WILL BE POSITIONED," "EXPECTS," IS OR ARE "EXPECTED,"
"ANTICIPATES," AND "ANTICIPATED." THESE FORWARD-LOOKING STATEMENTS ARE
BASED ON THE COMPANY'S CURRENT EXPECTATIONS. TO THE EXTENT ANY OF THE
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
CONSTITUTES A "FORWARD-LOOKING STATEMENT" AS DEFINED IN SECTION 21E(I)(1)
OF THE EXCHANGE ACT, THE RISK FACTORS SET FORTH BELOW ARE CAUTIONARY
STATEMENTS IDENTIFYING IMPORTANT FACTORS THAT COULD CAUSE ACTUAL RESULTS TO
DIFFER MATERIALLY FROM THOSE IN SUCH FORWARD-LOOKING STATEMENT.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR
SUBORDINATED DEBENTURES
The obligations of the Company under the Guarantee and under the
Junior Subordinated Debentures are unsecured and rank subordinate and
junior in right of payment to all Indebtedness of the Company. At
December 31, 1996, the Indebtedness of the Company aggregated approximately
$171 million. Neither the Indenture, the Guarantee nor the Declaration of
Trust places any limitation on the amount of secured or unsecured
Indebtedness that may be incurred by the Company. See "Description of New
Guarantee--Status of the Guarantee" and "Description of New Junior
Subordinated Debentures--Subordination."
RIGHTS UNDER THE NEW GUARANTEE
Bankers Trust Company will act as Guarantee Trustee and will hold the
Guarantee on behalf of the Trust for the benefit of the holders of the
Capital Securities. Bankers Trust Company will also act as Property
Trustee and as Debenture Trustee under the Indenture. Bankers Trust
(Delaware) will act as Delaware Trustee under the Declaration of Trust.
The Old Guarantee guarantees, and the New Guarantee will guarantee, as the
case may be, to the holders of the Capital Securities the following
payments with respect to the Capital Securities, to the extent not paid by
or on behalf of the Trust (the "Guarantee Payments"): (i) any accumulated
and unpaid Distributions required to be paid on the Capital Securities, but
only to the extent that the Trust has sufficient funds available therefor
at the time, (ii) the redemption price with respect to any Capital
Securities called for redemption, but only to the extent that the Trust has
sufficient funds available therefor at such time and (iii) upon a voluntary
or involuntary dissolution, winding up or termination of the Trust (unless
the Junior Subordinated Debentures are distributed to holders of the
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<PAGE>
Capital Securities), the lesser of (A) the aggregate liquidation amount of
the Capital Securities and all accrued and unpaid Distributions thereon to
the date of payment and (B) the amount of assets of the Trust remaining
available for distribution to holders of Capital Securities in liquidation
of the Trust. The Company's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Company to the
holders of the applicable Capital Securities or by causing the Trust to pay
such amounts to such holders.
The Guarantee will be an irrevocable guarantee on a subordinated basis
of the Trust's obligations under the Capital Securities, but will apply
only to the extent that the Trust has sufficient funds available to make
such payments.
If the Company does not make interest payments on the Junior
Subordinated Debentures held by the Trust, the Trust will not be able to
pay Distributions on the Capital Securities and will not have funds legally
available therefor. The Guarantee will rank subordinate and junior in right
of payment to all general liabilities of the Company, except those made
PARI PASSU or subordinate by their express terms. See "Description of New
Guarantee--Status of the Guarantee." The Guarantee does not limit the
incurrence or issuance of other secured or unsecured debt of the Company,
whether under the Indenture or any existing or other indenture that the
Company may enter into in the future or otherwise.
STATUS OF THE COMPANY AS HOLDING COMPANY
The Company is a legal entity separate and distinct from the Banks and
its other subsidiaries, although the Company's principal source of cash
revenues is dividends from the Banks. The right of the Company to
participate in the assets of any subsidiary upon the subsidiary's
liquidation, reorganization or otherwise (and thus the ability of the
holders of Capital Securities to benefit indirectly from any such
distribution) will be subject to the claims of that subsidiary's creditors,
which will take priority except to the extent to which the Company may
itself be a creditor with a recognized claim. As of December 31, 1996, the
Company's subsidiaries had indebtedness and other liabilities of
approximately $1.4 billion. Various federal and state laws and regulations
also limit the extent to which the Banks can pay dividends, extend credit
or otherwise supply funds to the Company and its other subsidiaries.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Trust Enforcement Event (as defined herein) occurs and is
continuing, then the holders of Capital Securities would rely on the
enforcement by the Property Trustee of its rights as a holder of the Junior
Subordinated Debentures against the Company. The holders of a majority in
liquidation amount of the Capital Securities will have the right to direct
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<PAGE>
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under the Declaration of Trust,
including the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Junior Subordinated Debentures. If the
Property Trustee fails to enforce its rights with respect to the Junior
Subordinated Debentures held by the Trust, any record holder of Capital
Securities may institute legal proceedings directly against the Company to
enforce the Property Trustee's rights under such Junior Subordinated
Debentures without first instituting any legal proceedings against the
Property Trustee or any other person or entity.
If the Company were to default on its obligation to pay amounts
payable under the Junior Subordinated Debentures, the Trust would lack
funds for the payment of Distributions or amounts payable on redemption of
the Capital Securities or otherwise, and, in such event, holders of the
Capital Securities would not be able to rely upon the Guarantee for payment
of such amounts. However, in the event the Company failed to pay interest
on or principal of the Junior Subordinated Debentures on the payment date
on which such payment is due and payable, then a holder of Capital
Securities may directly institute a proceeding against the Company under
the Indenture for enforcement of payment to such holder of the interest on
or principal of such Junior Subordinated Debentures having a principal
amount equal to the aggregate liquidation amount of the Capital Securities
of such holder (a "Direct Action"). In connection with such Direct Action,
the Company will be subrogated to the rights of such holder of Capital
Securities under the Declaration of Trust to the extent of any payment made
by the Company to such holder of Capital Securities in such Direct Action.
Except as set forth herein, holders of Capital Securities will not be able
to exercise directly any other remedy available to the holders of Junior
Subordinated Debentures or assert directly any other rights in respect of
the Junior Subordinated Debentures. See "Description of New Capital
Securities--Trust Enforcement Events", "Description of New Guarantee" and
"Description of New Junior Subordinated Debentures--Indenture Events of
Default." The Declaration of Trust provides that each holder of Capital
Securities by acceptance thereof agrees to the provisions of the Guarantee
and the Indenture.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
The Company has the right under the Indenture, so long as no Indenture
Event of Default has occurred or is continuing, to defer the payment of
interest on the Junior Subordinated Debentures at any time or from time to
time for a period not exceeding 20 consecutive quarters, provided that no
Extension Period may extend beyond the Stated Maturity (as defined in the
Indenture) of the Junior Subordinated Debentures. As a consequence of any
such deferral, quarterly Distributions on the Capital Securities by the
Trust will be deferred during any such Extension Period but would continue
14
<PAGE>
to accumulate at a variable annual rate equal to LIBOR plus 0.80%,
compounded quarterly during any such Extension Period. No interest will be
due and payable during an Extension Period, except at the end thereof.
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 to the Junior Subordinated Debentures 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 with or junior to the Junior Subordinated 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
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 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 Extension Period,
provided that no Extension Period may exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Junior Subordinated Debentures.
Upon the termination of any 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. See "Description of New
Capital Securities--Distributions on New Capital Securities" and
"Description of New Junior Subordinated Debentures--Option to Extend
Interest Payment Period."
Should the Company defer payment of interest on the Junior
Subordinated Debentures, a holder of Capital Securities will be required to
accrue income (in the form of "original issue discount" ("OID") within the
meaning of Section 1273(a) of the Internal Revenue Code of 1986, as amended
(the "Code")) (which will include both stated interest and the DE MINIMIS
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<PAGE>
OID, if any, on the Junior Subordinated Debentures) for U.S. federal income
tax purposes in respect of the holder's PRO RATA share of the Junior
Subordinated Debentures held by the Trust. As a result, a holder of Capital
Securities will include such interest income in gross income for U.S.
federal income tax purposes in advance of the receipt of cash attributable
to such interest income, and will not receive the cash related to such
income from the Trust if the holder disposes of the Capital Securities
prior to the record date for the payment of Distributions with respect to
such Extension Period. See "Certain United States Federal Income Tax
Consequences--Interest Income and Original Issue Discount" and "--Sales of
New Capital Securities."
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Junior
Subordinated Debentures. However, should the Company elect to exercise such
right in the future, the market price of the Capital Securities is likely
to be adversely affected. A holder that disposes of its Capital Securities
during an Extension Period, therefore, might not receive the same return on
its investment as a holder that continues to hold its Capital Securities.
In addition, as a result of the Company's right to defer interest payments,
the market price of the Capital Securities (which represent preferred
undivided beneficial interests in the Junior Subordinated Debentures) may
be more volatile than the market prices of other similar securities where
the issuer does not have such right to defer interest payments.
SPECIAL EVENT REDEMPTION; PROPOSED TAX LAW CHANGES
Upon the occurrence and continuation of a Special Event, the Company
has the right, subject to any necessary prior approval of the Federal
Reserve, to redeem the Junior Subordinated Debentures in whole (but not in
part) within 120 days following the occurrence of such Special Event and
thereby cause a mandatory redemption of the Capital Securities and Common
Securities. A "Special Event" means a Tax Event, a Regulatory Capital Event
or an Investment Company Event (each as defined herein).
On February 6, 1997, President Clinton released his budget proposals
for fiscal year 1998. One of the revenue provisions of those proposals
would generally deny interest deductions for interest on an instrument
issued by a corporation that has a maximum term of more than 15 years and
that is not shown as indebtedness on the separate balance sheet of the
issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. If enacted as proposed by the President, this provision
would be effective for instruments issued on or after the date of first
action by a Congressional committee with respect to the proposal. It is not
clear from the President's proposals as to what constitutes "Congressional
committee action" with respect to the proposal. If this provision were to
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<PAGE>
apply to the Junior Subordinated Debentures, the Company would not be able
to deduct interest on the Junior Subordinated Debentures. There can be no
assurance, however, that future legislative or administrative proposals or
final legislation will not adversely affect the ability of the Company to
deduct interest on the Junior Subordinated Debentures or otherwise affect
the tax treatment described herein. Such a change, therefore, could give
rise to a Tax Event, which would permit the Company to cause a redemption
of the Capital Securities or to dissolve the Trust and distribute the
Junior Subordinated Debentures to the holders of Trust Securities in
liquidation of the Trust as described more fully under "Description of New
Capital Securities--Redemption--Special Event Redemption or Distribution of
Junior Subordinated Debentures."
POSSIBLE ADVERSE EFFECT ON MARKET PRICES
There can be no assurance as to the market prices for Capital
Securities or Junior Subordinated Debentures distributed to the holders of
Capital Securities if a termination of the Trust were to occur.
Accordingly, the Capital Securities or the Junior Subordinated Debentures
may trade at a discount from the price that the investor paid to purchase
the Capital Securities. Because holders of Capital Securities may receive
Junior Subordinated Debentures in liquidation of the Trust and because
Distributions are otherwise limited to payments on the Junior Subordinated
Debentures, prospective purchasers of New Capital Securities are also
making an investment decision with respect to the Junior Subordinated
Debentures and should carefully review all the information regarding the
Junior Subordinated Debentures contained herein. See "Description of New
Junior Subordinated Debentures."
LIQUIDATION DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
Upon the occurrence and continuation of a Special Event, the Company
will have the right, subject to any necessary prior approval of the Federal
Reserve, to dissolve the Trust and cause the Junior Subordinated Debentures
to be distributed to the holders of the Capital Securities and the Common
Securities in liquidation of the Trust. In addition, upon liquidation of
the Trust and certain other events, the Junior Subordinated Debentures may
be distributed to such holders. Under current U.S. federal income tax law
and interpretations thereof and assuming, as expected, the Trust is treated
as a grantor trust for U.S. federal income tax purposes, a distribution by
the Trust of the Junior Subordinated Debentures pursuant to a liquidation
of the Trust will not be a taxable event to the Trust or to holders of the
Capital Securities, and will result in a holder of the Capital Securities
receiving directly such holder's PRO RATA share of the Junior Subordinated
Debentures (previously held indirectly through the Trust). If, however, the
liquidation of the Trust were to occur because the Trust is subject to U.S.
federal income tax with respect to income accrued or received on the Junior
Subordinated Debentures as a result of the occurrence of a Tax Event or
17
<PAGE>
otherwise, the distribution of Junior Subordinated Debentures to holders of
the Capital Securities by the Trust could be a taxable event to the Trust
and each holder, and holders of the Capital Securities may be required to
recognize gain or loss as if they had exchanged their Capital Securities
for the Junior Subordinated Debentures they received upon the liquidation
of the Trust. See "Certain United States Federal Income Tax Consequences--
Distribution of Junior Subordinated Debentures or Cash Upon Liquidation of
the Trust."
There can be no assurance as to the market prices for Capital
Securities or Junior Subordinated Debentures that may be distributed upon a
liquidation of the Trust. Accordingly, the Capital Securities or the Junior
Subordinated Debentures that a holder of Capital Securities may receive on
liquidation of the Trust may trade at a discount to the price that the
investor paid to purchase the Capital Securities. Because holders of
Capital Securities may receive Junior Subordinated Debentures on
termination of the Trust, prospective purchasers of Capital Securities are
also making an investment decision with regard to the Junior Subordinated
Debentures and should carefully review all the information regarding the
Junior Subordinated Debentures contained herein. See "Description of New
Capital Securities--Redemption" and "Description of New Junior Subordinated
Debentures--General."
LIMITED VOTING RIGHTS
Holders of Capital Securities generally will have voting rights
relating only to the modification of the Capital Securities and certain
other matters described herein. Holders of Capital Securities will not be
entitled to vote to appoint, remove or replace any of the Trustees, which
voting rights are vested exclusively in the Company as the holder of the
Common Securities. The Trustees and the Company may amend the Declaration
of Trust without the consent of holders of Capital Securities to ensure
that the Trust will be classified as a grantor trust for U.S. federal
income tax purposes even if that action adversely affects the interests of
such holders. See "Description of New Capital Securities--Voting Rights;
Amendment of the Declaration of Trust."
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the
Securities Act or any state securities laws and therefore may not be
offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act and any other applicable
securities laws, or pursuant to an exemption from registration, and in each
case in compliance with certain other conditions and restrictions. Old
Capital Securities which remain outstanding after consummation of the
Exchange Offer will continue to bear a legend reflecting such restrictions
on transfer. In addition, upon consummation of the Exchange Offer, holders
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<PAGE>
of Old Capital Securities which remain outstanding will not have any rights
to have such Old Capital Securities registered under the Securities Act or
any similar rights under the Registration Rights Agreement (subject to
certain limited exceptions). The Company and the Trust do not intend to
register under the Securities Act any Old Capital Securities which remain
outstanding after consummation of the Exchange Offer (subject to such
limited exceptions, if applicable).
The New Capital Securities and any Old Capital Securities which remain
outstanding after consummation of the Exchange Offer will vote together as
a single class for purposes of determining whether holders of the requisite
percentage in outstanding Liquidation Amount thereof have taken certain
actions or exercised certain rights under the Declaration of Trust. See
"Description of New Capital Securities--Voting Rights; Amendment of the
Declaration of Trust."
The Old Capital Securities provide, among other things, that, if a
registration statement relating to the Exchange Offer has not been filed by
June 30, 1997 and declared effective by July 30, 1997, or if the Exchange
Offer is not consummated within 30 days after the effective date of the
Registration Statement or the Registration Statement ceases to be effective
and this failure is not cured within two business days (each of the
foregoing being referred to as a "Registration Default"), additional
interest ("Additional Interest") will become payable in respect of the
Junior Subordinated Debentures (including in respect of amounts accruing
during any Extension Period), and corresponding additional Distributions
(the "Additional Distributions") will become payable on the Old Capital
Securities, with respect to the first 90-day period immediately following
the occurrence of such Registration Default, in an amount equal to $0.25
per week per $1,000 Liquidation Amount for each week (or portion thereof)
that such Registration Default remains uncured. For each subsequent 90-day
period in which the Registration Default remains uncured, this Additional
Distribution rate increases $0.05 per week per $1,000 Liquidation Amount
(subject to a maximum total of $0.50 per week per $1,000 Liquidation
Amount). Upon consummation of the Exchange Offer, holders of Old Capital
Securities will not be entitled to Additional Distributions upon a
Registration Default or any further registration rights under the Registration
Rights Agreement, except under limited circumstances. See "Description of
Old Securities."
ABSENCE OF PUBLIC MARKET
The Old Capital Securities were sold to, and the Company believes such
securities are currently owned by, a relatively small number of beneficial
owners. The Old Capital Securities have not been registered under the
Securities Act and are and will continue to be subject to restrictions on
transferability if they are not exchanged for the New Capital Securities.
Although the New Capital Securities may be resold or otherwise transferred
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<PAGE>
(with certain exceptions) without compliance with the registration
requirements under the Securities Act, they will constitute a new issue of
securities with no established trading market. The Company and the Trust
have been advised by Lehman Brothers that Lehman Brothers presently intends
to make a market in the New Capital Securities. However, Lehman Brothers
is not obligated to do so and any market-making activity with respect to
the New Capital Securities may be discontinued at any time without notice.
In addition, such market-making activity will be subject to the limits
imposed by the Securities Act and the Exchange Act and may be limited
during the Exchange Offer. Accordingly, no assurance can be given that an
active public or other market will develop for the New Capital Securities
or the Old Capital Securities or as to the liquidity of or the trading
market for the New Capital Securities or the Old Capital Securities. If an
active public market does not develop, the market price and liquidity of
the New Capital Securities may be adversely affected.
If a public trading market develops for the New Capital Securities,
future trading prices will depend on many factors, including, among other
things, prevailing interest rates, the Company's financial and operating
results and the market for similar securities. Depending on prevailing
interest rates, the market for similar securities and other factors,
including the financial condition of the Company, the New Capital
Securities may trade at a discount.
Notwithstanding the registration of the New Capital Securities in the
Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of
the Securities Act) of the Company or the Trust may publicly offer for sale
or resell the New Capital Securities only in compliance with the provisions
of Rule 144 under the Securities Act or another available exemption from
the registration requirements of the Securities Act, or in a registered
offering (other than the Exchange Offer).
Each broker-dealer that receives New Capital Securities for its own
account in exchange for Old Capital Securities, where such Old Capital
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will
deliver a prospectus in connection with any resale of such New Capital
Securities. See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Issuance of the New Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Trust of such Old Capital Securities, a properly completed
and duly executed Letter of Transmittal or Agent's Message in lieu thereof
and all other required documents. Therefore, holders of the Old Capital
Securities desiring to tender such Old Capital Securities in exchange for New
Capital Securities should allow sufficient time to ensure timely delivery.
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<PAGE>
Neither the Company nor the Trust is under any duty to give notification of
defects or irregularities with respect to the tenders of Old Capital
Securities for exchange.
BANK REGULATORY RESTRICTIONS
Because the Trust is a subsidiary of the Company, federal banking
authorities will have the right to examine the Trust and its activities.
Under certain circumstances, including any determination that the Company's
relationship to the Trust results in an unsafe and unsound banking
practice, such banking authorities will have the authority to issue orders
which could restrict the ability of the Trust to make Distributions on or
to redeem the Capital Securities.
Under the Financial Institutions Reform, Recovery and Enforcement Act
of 1989 ("FIRREA"), a depository institution insured by the Federal Deposit
Insurance Corporation ("FDIC") can be held liable for any loss incurred by,
or reasonably expected to be incurred by, the FDIC in connection with (i)
the default of a commonly controlled FDIC-insured depository institution or
(ii) any assistance provided by the FDIC to a commonly controlled FDIC-
insured depository institution in danger of default. "Default" is defined
generally as the appointment of a conservator or receiver and "in danger of
default" is defined generally as the existence of certain conditions
indicating that a "default" is likely to occur in the absence of regulatory
assistance.
Under Federal Reserve policy, and as a result of the law described in
the following paragraph, the Company is expected to act as a source of
financial strength to the Banks and to commit resources to support the
Banks in circumstances where it might not do so absent such policy. In
addition, any capital loans by the Company to any of the Banks would also
be subordinate in right of payment to deposits and to certain other
indebtedness of such Bank. In the event of a bank holding company's
bankruptcy, any commitment by the bank holding company to a federal bank
regulatory agency to maintain the capital of a subsidiary bank at a certain
level will be assumed by the bankruptcy trustee and entitled to a priority
of payment.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA") provides, among other things, that if a bank does not meet any
one of its minimum capital requirements set by its regulators, then the
bank must submit a capital restoration plan for improving its capital. The
bank's holding company must guarantee that the undercapitalized subsidiary
will meet its recapitalization plan and may be liable for civil monetary
penalties for failure to fulfill its commitment on such guarantee. In
addition, FDICIA prohibits a bank from making a capital distribution, to
its holding company or otherwise, if the bank fails to meet any minimum
capital requirements or if payment of the distribution would cause it to
fail to meet any minimum capital requirement. Furthermore, under certain
21
<PAGE>
circumstances, a holding company of an undercapitalized bank may be
prohibited from making any capital distribution to its shareholders or
otherwise. As of December 31, 1996, each of the Banks met or exceeded the
requirements of a "well-capitalized" institution as prescribed in the rules
of the Bank's primary federal regulator.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's consolidated ratios of earnings to fixed charges for each of
the periods indicated are set forth below:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings to fixed Charges:
Excluding Interest on Deposits 4.39 4.04 6.32 9.96 7.70
Including Interest on Deposits 1.53 1.50 1.68 1.75 1.53
</TABLE>
For purposes of computing the ratios of earnings to fixed charges,
earnings represent net income plus applicable income taxes and fixed
charges. Fixed charges, excluding interest on deposits, represent interest
expense on long-term debt and short term borrowings and the interest factor
included in rents (which is deemed to be one-third of rental expense).
Fixed charges, including interest on deposits, represent all interest
expense and the interest factor included in rents.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust is treated as a subsidiary
of the Company and, accordingly, the accounts of the Trust are included in
the consolidated financial statements of the Company. The Capital
Securities will be presented in the consolidated balance sheet of the
Company as a separate line item directly above shareholders' equity and
appropriate disclosures about the Capital Securities, the Guarantee and the
Junior Subordinated Debentures will be included in the notes to the
consolidated financial statements for financial reporting purposes.
REGULATORY TREATMENT
The Federal Reserve requires the Company to maintain certain levels of
capital for bank regulatory purposes. The Company expects that the Capital
Securities will be treated as Tier 1 capital of the Company for such
purposes.
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<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company and its subsidiaries and certain ratios as of December 31, 1996,
and as adjusted to give effect to the offering of the Capital Securities.
<TABLE>
<CAPTION>
DECEMBER 31, 1996
-------------------------------
ACTUAL AS ADJUSTED
------ -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-term debt:
6.625% Subordinated Notes due November 15, 2005 $100,000 $100,000
Guaranteed preferred beneficial interests in Company's
Junior Subordinated Debentures <F1> . . . . . . . . . . . . . . -- 100,000
Shareholders' equity:
Preferred stock: 25,000,000 shares authorized and
unissued. . . . . . . . . . . . . . . . . . . . . . . . . . . -- --
Common stock, par value $1; 150,000,000 shares
authorized; 44,944,321 issued and outstanding . . . . . . . . 44,944 44,944
Capital surplus . . . . . . . . . . . . . . . . . . . . . . . . 175,842 175,842
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . 782,830 782,830
Total common stock, capital surplus and retained
earnings. . . . . . . . . . . . . . . . . . . . . . . . . . . 1,003,616 1,003,616
Unrealized gains (losses) on securities
available-for-sale. . . . . . . . . . . . . . . . . . . . . . (9,859) (9,859)
---------- ----------
Total Shareholders' Equity. . . . . . . . . . . . . . . . . 993,757 993,757
---------- ----------
Total Capitalization. . . . . . . . . . . . . . . . . . . $1,093,757 $1,093,349
========== ==========
Risk-based capital ratios:
Tier 1 capital to risk-adjusted assets <F2> . . . . . . . . . . 9.45% 10.49%
Regulatory "well capitalized" tier 1 ratio. . . . . . . . . . . 6.00 6.00
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<PAGE>
Regulatory minimum. . . . . . . . . . . . . . . . . . . . . . . 4.00 4.00
Total capital to risk-adjusted assets <F2>. . . . . . . . . . . 11.75 12.79
Regulatory "well capitalized" total capital ratio . . . . . . . 10.00 10.00
Regulatory minimum. . . . . . . . . . . . . . . . . . . . . . . 8.00 8.00
Leverage ratio. . . . . . . . . . . . . . . . . . . . . . . . . 7.31 8.12
Regulatory "well capitalized" leverage ratio. . . . . . . . . . 5.00 5.00
Regulatory minimum. . . . . . . . . . . . . . . . . . . . . . . 3.00 3.00
<FN>
__________
<F1> As described herein, the sole assets of the Trust are $103,092,784
principal amount of Old Junior Subordinated Debentures issued by the
Company to the Trust. The Old Junior Subordinated Debentures bear
interest at a variable rate equal to LIBOR plus 0.80% on the
liquidation amount of $1,000 per Capital Security and will mature on
February 1, 2027. The Company owns all of the Common Securities of the
Trust.
<F2> Assumes the net proceeds of the original offering of Old Capital
Securities were initially invested in assets with a 100% risk
weighting under the risk-based capital rules of the Federal Reserve.
</FN>
</TABLE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected historical consolidated
financial information for the Company as of and for the periods indicated
below. The summary consolidated financial data as of and for the five years
ended December 31, 1996 was derived from the audited consolidated financial
statements of the Company incorporated herein by reference. The selected
consolidated financial data should be read in conjunction with the
Company's audited financial statements contained in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996.
24
<PAGE>
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OPERATIONS:
Interest income. . . . . . . . . . . . . $ 947,307 $ 909,819 $ 759,186 $ 692,151 $ 719,466
Interest expense . . . . . . . . . . . . 453,019 433,126 303,551 264,564 315,645
----------- ----------- ----------- ---------- ----------
Net interest income. . . . . . . . . . . 494,288 476,693 455,635 427,587 403,821
Provision for credit losses. . . . . . . 35,236 21,666 22,465 34,822 58,987
----------- ----------- ----------- ---------- ----------
Net interest income after provision
for credit losses . . . . . . . . . . 459,052 455,027 433,170 392,765 344,834
Other income . . . . . . . . . . . . . . 212,164 161,718 136,010 134,531 123,163
Other expense. . . . . . . . . . . . . . 432,494 402,132 363,478 328,998 300,615
----------- ----------- ----------- ---------- ----------
Income before income tax expense . . . . 238,722 214,613 205,702 198,298 167,382
Income tax expense . . . . . . . . . . . 80,021 72,799 68,618 66,974 52,937
----------- ----------- ----------- ---------- ----------
Net income . . . . . . . . . . . . . . . $ 158,701 $ 141,814 $ 137,084 $ 131,324 $ 114,445
=========== =========== =========== ========== ==========
Total assets . . . . . . . . . . . . . . $12,251,860 $11,674,214 $10,761,022 $9,718,875 $9,200,850
Loans. . . . . . . . . . . . . . . . . . 7,795,771 7,230,657 6,060,822 5,216,229 5,262,114
Deposits . . . . . . . . . . . . . . . . 9,762,694 9,317,428 8,805,055 8,064,628 7,681,885
Subordinated debt. . . . . . . . . . . . 100,000 12,603 -- 5,028 26,270
Total shareholders' equity<F2>. . . . . . 1,000,841 960,858 884,415 802,016 712,624
Return on average assets<F1> . . . . . . 1.30% 1.21% 1.27% 1.35% 1.24%
Return on average equity<F1> . . . . . . 15.86 14.76 15.50 16.37 16.06
Average equity to average assets<F1> . . 8.17 8.23 8.22 8.25 7.75
Tier 1. . . . . . . . . . . . . . . . 9.45 10.59 10.84 12.61 12.57
Total . . . . . . . . . . . . . . . . 11.75 13.01 12.11 13.87 14.03
Leverage ratio<F3> . . . . . . . . . . . 7.31 7.88 7.30 7.78 7.76
Average net interest margin. . . . . . . 4.41 4.46 4.63 4.82 4.81
Net charge-offs to average loans . . . . 0.54 0.19 0.16 0.33 0.47
Impaired loans to loans<F4>. . . . . . . 0.53 0.58 0.88 1.12 1.54
Allowance to loans . . . . . . . . . . . 2.05 2.35 2.44 2.72 2.40
Allowance to impaired loans<F4>. . . . . 388 403 277 243 156
<FN>
__________
<F1> Average assets include average unrealized gains (losses) on investment
securities available for sale.
<F2> Average total shareholders' equity includes average net unrealized
gains (losses) on investment securities available for sale.
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<PAGE>
<F3> The Federal Reserve guidelines for risk-based capital requirements
applicable to all bank holding companies require minimum ratios of
Tier 1 and total capital to risk-adjusted assets to be 4% and 8%,
respectively. The Federal Reserve's minimum leverage guidelines
require all bank holding companies to maintain a ratio of Tier 1
capital to average assets of at least 3%.
<F4> Impaired loans include nonaccrual and restructured loans.
</FN>
</TABLE>
THE TRUST
The Trust is a statutory business trust formed under the Delaware
Business Trust Act, pursuant to the Declaration of Trust and the filing of
a certificate of trust with the Secretary of State of the State of
Delaware. The Company acquired Common Securities in an aggregate
liquidation amount equal to at least 3% of the total assets of the Trust.
The Trust used all the proceeds derived from the issuance of the Trust
Securities to purchase the Old Junior Subordinated Debentures and,
accordingly, the assets of the Trust consist solely of the Old Junior
Subordinated Debentures. The Trust exists for the exclusive purpose of
(i) issuing the Trust Securities representing undivided beneficial
ownership interests in the assets of the Trust, (ii) investing the gross
proceeds from the sale of the Trust Securities in the Junior Subordinated
Debentures and (iii) engaging in only those other activities necessary or
incidental thereto. The Declaration of Trust does not limit the aggregate
liquidation amount of Trust Securities that may be issued thereunder,
provided that prior to issuing any additional Trust Securities, the
Trustees must receive an opinion of counsel to the effect that the issuance
of such Trust Securities will not affect the Trust's status as a grantor
trust for U.S. federal income tax purposes.
Pursuant to the Declaration of Trust, there are five trustees (the
"Trustees") of the Trust. Three of the Trustees (the "Regular Trustees")
are individuals who are employees or officers of or who are affiliated with
the Company. The fourth Trustee is Bankers Trust Company, which is a
financial institution that is unaffiliated with the Company (the "Property
Trustee"). The fifth Trustee is Bankers Trust (Delaware), which is an
entity that maintains its principal place of business in the State of
Delaware (the "Delaware Trustee"). Bankers Trust Company and Bankers Trust
(Delaware) will serve as Trustees until, in each case, it resigns or is
removed or replaced by the holder of the Common Securities. Bankers Trust
Company also acts as the Guarantee Trustee and the Indenture Trustee.
The Property Trustee holds title to the Junior Subordinated Debentures
for the benefit of the Trust and the holders of the Trust Securities and
has the power to exercise all rights, powers and privileges with respect to
26
<PAGE>
the Junior Subordinated Debentures under the Indenture as the holder of the
Junior Subordinated Debentures. In addition, the Property Trustee maintains
exclusive control of a segregated non-interest bearing bank account (the
"Property Account") to hold all payments made in respect of the Junior
Subordinated Debentures for the benefit of the holders of the Trust
Securities. The Guarantee Trustee holds the Guarantee for the benefit of
the holders of the Capital Securities. The Company, as the holder of all
the Common Securities, has the right to appoint, remove or replace any of
the Trustees and to increase or decrease the number of Trustees, provided
there shall always be a Delaware Trustee, a Property Trustee and at least
one Regular Trustee.
Under the Indenture, the Company, as borrower, has agreed to pay all
fees and expenses related to the organization and operations of the Trust
(including any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States
or any other domestic taxing authority upon the Trust) and the offering of
the Capital Securities and be responsible for all debts and obligations of
the Trust (other than with respect to the Capital Securities). See
"Description of New Capital Securities--Expenses and Taxes."
For so long as the Capital Securities remain outstanding, the Company
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 the Declaration of Trust, (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 of 1940, as
amended (the "Investment Company Act"), and (iv) to take no action that
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.
The rights of the holders of the Capital Securities, including
economic rights, rights to information and voting rights, are set forth in
the Declaration of Trust and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). See "Description of the New Capital
Securities." The Declaration of Trust and the Guarantee also incorporate by
reference the terms of the Trust Indenture Act.
The location of the principal executive office of the Trust is c/o Old
Kent Financial Corporation, Attn. Corporate Secretary, 111 Lyon Street, N.W.,
Grand Rapids, Michigan 49503 and its telephone number is (616) 771-5482.
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<PAGE>
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the Company
and the Trust entered into the Registration Rights Agreement with Lehman
Brothers, pursuant to which the Company and the Trust agreed to file and to
use their reasonable efforts to cause to become effective with the
Commission the Registration Statement with respect to the Exchange Offer.
A copy of the Registration Rights Agreement has been filed as an exhibit to
the Registration Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations
of the Company and the Trust under the Registration Rights Agreement. The
form and terms of the New Capital Securities are the same as the form and
terms of the Old Capital Securities except that the New Capital Securities
have been registered under the Securities Act and will not be subject to
certain restrictions on transfer applicable to the Old Capital Securities
and will not provide for Additional Distributions upon a Registration
Default. In that regard, the Registration Rights Agreement provides, among
other things, that, in the event of a Registration Default, the Distribution
rate borne by the Old Capital Securities will increase by $0.25 per week per
$1,000 Liquidation Amount for each week (or portion thereof) that such
Registration Default remains uncured, during the first 90-day period
following the Registration Default. However, for each subsequent 90-day
period in which the Registration Default remains uncured, this Additional
Distribution rate increases $0.05 per week per $1,000 Liquidation Amount
(subject to a maximum total of $0.50 per week per $1,000 Liquidation Amount).
Upon consummation of the Exchange Offer, holders of Old Capital Securities
will not be entitled to Additional Distributions upon a Registration Default
or any further registration rights under the Registration Rights Agreement,
except under limited circumstances. See "Description of Old Securities."
The Exchange Offer is not being made to, nor will the Trust or the
Company accept tenders for exchange from, holders of Old Capital Securities
in any jurisdiction in which the Exchange Offer or the acceptance thereof
would not be in compliance with the securities or blue sky laws of such
jurisdiction.
Unless the context requires otherwise, the term "holder" with respect
to the Exchange Offer means any person in whose name the Old Capital
Securities are registered on the books of the Trust or any other person who
has obtained a properly completed bond power from the registered holder, or
any person whose Old Capital Securities are held of record by The
Depository Trust Company ("DTC") who desires to deliver such Old Capital
Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Company will exchange as soon as
practicable after the date hereof, the Old Guarantee for the New Guarantee
28
<PAGE>
and the Old Junior Subordinated Debentures for the New Junior Subordinated
Debentures in an amount proportionate to the amount of New Capital
Securities exchanged for Old Capital Securities in the Exchange Offer.
Like the New Capital Securities, the New Guarantee and New Junior
Subordinated Debentures have been registered under the Securities Act.
TERMS OF THE EXCHANGE OFFER
The Trust hereby offers, upon the terms and subject to the conditions
set forth in this Prospectus and in the accompanying Letter of Transmittal,
to exchange up to $100,000,000 aggregate Liquidation Amount of New Capital
Securities for a like aggregate Liquidation Amount of Old Capital
Securities properly tendered on or prior to the Expiration Date and not
properly withdrawn in accordance with the procedures described below. The
Trust will issue, promptly after the Expiration Date, an aggregate
Liquidation Amount of up to $100,000,000 of New Capital Securities in
exchange for a like principal amount of outstanding Old Capital Securities
tendered and accepted in the Exchange Offer. Holders may tender their Old
Capital Securities in whole or in part in any integral multiple of $1,000
of Liquidation Amount (one Capital Security).
The Exchange Offer is not conditioned upon any minimum Liquidation
Amount of Old Capital Securities being tendered. As of the date of this
Prospectus, $100,000,000 aggregate Liquidation Amount of the Old Capital
Securities is outstanding.
Holders of Old Capital Securities do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Old Capital
Securities which are not tendered for or are tendered but not accepted in
connection with the Exchange Offer will remain outstanding and be entitled
to the benefits of the Declaration of Trust, but will not be entitled to
any further registration rights under the Registration Rights Agreement,
except under limited circumstances. See "Risk Factors--Consequences of a
Failure to Exchange Old Capital Securities" and "Description of Old
Securities."
If any tendered Old Capital Securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set
forth herein or otherwise, certificates (if any) for any such unaccepted
Old Capital Securities will be returned, without expense, to the tendering
holder thereof promptly after the Expiration Date.
Holders who tender Old Capital Securities in connection with the
Exchange Offer will not be required to pay brokerage commissions or fees
or, subject to the instructions in the Letter of Transmittal, transfer
taxes with respect to the exchange of Old Capital Securities in connection
with the Exchange Offer. The Company will pay all charges and expenses,
other than certain applicable taxes described below, in connection with the
Exchange Offer. See "The Exchange Offer--Fees and Expenses."
29
<PAGE>
NEITHER THE COMPANY, THE BOARD OF DIRECTORS OF THE COMPANY NOR ANY
TRUSTEE OF THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL
SECURITIES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY
PORTION OF THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN
ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION.
HOLDERS OF OLD CAPITAL SECURITIES MUST MAKE THEIR OWN DECISION WHETHER TO
TENDER PURSUANT TO THE EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF
OLD CAPITAL SECURITIES TO TENDER BASED ON SUCH HOLDER'S OWN FINANCIAL
POSITION AND REQUIREMENTS.
The Expiration Date is 5:00 p.m., New York City time, on ___________,
1997, unless the Exchange Offer is extended by the Company or the Trust (in
which case the term "Expiration Date" shall mean the latest date and time
to which the Exchange Offer is extended).
The Company and the Trust expressly reserve the right in their sole
and absolute discretion, subject to applicable law, at any time and from
time to time, (i) to delay the acceptance of the Old Capital Securities for
exchange, (ii) to terminate the Exchange Offer (whether or not any Old
Capital Securities have theretofore been accepted for exchange) if the
Trust and the Company determine, in their discretion, that any of the
events or conditions referred to under "--Conditions to the Exchange Offer"
have occurred or exist or have not been satisfied, (iii) to extend the
Expiration Date of the Exchange Offer and retain all Old Capital Securities
tendered pursuant to the Exchange Offer, subject, however, to the right of
holders of Old Capital Securities to withdraw their tendered Old Capital
Securities as described under "--Withdrawal Rights," and (iv) to waive any
condition or otherwise amend the terms of the Exchange Offer in any
respect. If the Exchange Offer is amended in a manner determined by the
Company and the Trust to constitute a material change, or if the Company
and the Trust waive a material condition of the Exchange Offer, the Company
and the Trust will promptly disclose such amendment by means of a
Prospectus supplement that will be distributed to the holders of the Old
Capital Securities, and the Company and the Trust will extend the Exchange
Offer to the extent required by the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will
be followed promptly by oral or written notice thereof to the Exchange
Agent and by making a public announcement thereof, and such announcement in
the case of an extension will be made no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled
Expiration Date. Without limiting the manner in which the Company and the
Trust may choose to make any public announcement and subject to applicable
law, the Company and the Trust shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than
by issuing a release to an appropriate news agency.
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ACCEPTANCE FOR EXCHANGE AND DELIVERY OF NEW CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer,
the Trust will exchange, and will issue to the Exchange Agent, New Capital
Securities for Old Capital Securities validly tendered and not withdrawn
promptly after the Expiration Date.
In all cases, delivery of New Capital Securities in exchange for Old
Capital Securities tendered and accepted for exchange pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent
of (i) certificates for Old Capital Securities or a book-entry confirmation
of a book-entry transfer of Old Capital Securities into the Exchange Agent's
account at DTC, (ii) the Letter of Transmittal (or facsimile thereof), or an
Agent's Message (as defined below) in lieu thereof, properly completed and
duly executed, with any required signature guarantees and (iii) any other
documents required by the Letter of Transmittal. The term "book-entry
confirmation" means a timely confirmation of a book-entry transfer of Old
Capital Securities into the Exchange Agent's account at DTC.
Subject to the terms and conditions of the Exchange Offer, the Trust
and the Company will be deemed to have accepted for exchange, and thereby
exchanged, Old Capital Securities validly tendered and not withdrawn as, if
and when the Trust gives oral or written notice to the Exchange Agent of
the Trust's acceptance of such Old Capital Securities for exchange pursuant
to the Exchange Offer. The Exchange Agent will act as agent for the Trust
and the Company for the purpose of receiving tenders of Old Capital
Securities, Letters of Transmittal and related documents, and as agent for
tendering holders for the purpose of receiving Old Capital Securities,
Letters of Transmittal and related documents and transmitting New Capital
Securities to validly tendering holders. Such exchange will be made
promptly after the Expiration Date. If for any reason whatsoever,
acceptance for exchange or the exchange of any Old Capital Securities
tendered pursuant to the Exchange Offer is delayed (whether before or after
the Trust's and the Company's acceptance for exchange of Old Capital
Securities) or the Trust and the Company extend the Exchange Offer or are
unable to accept for exchange or exchange Old Capital Securities tendered
pursuant to the Exchange Offer, then, without prejudice to the Trust's and
the Company's rights set forth herein, the Exchange Agent may,
nevertheless, on behalf of the Trust and the Company and subject to Rule
14e-1 under the Exchange Act, retain tendered Old Capital Securities and
such Old Capital Securities may not be withdrawn except to the extent
tendering holders are entitled to withdrawal rights as described under
"--Withdrawal Rights."
Pursuant to the Letter of Transmittal or Agent's Message in lieu
thereof, a holder of Old Capital Securities will warrant and agree in the
Letter of Transmittal that it has full power and authority to tender,
exchange, sell, assign and transfer Old Capital Securities, that the Trust
will acquire good, marketable and unencumbered title to the tendered Old
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Capital Securities, free and clear of all liens, restrictions, charges and
encumbrances and that the Old Capital Securities tendered for exchange are
not subject to any adverse claims or interests. The holder also will
warrant and agree that it will, upon request, execute and deliver any
additional documents deemed by the Company, the Trust or the Exchange Agent
to be necessary or desirable to complete the exchange, sale, assignment and
transfer of the Old Capital Securities tendered pursuant to the Exchange
Offer and will comply with its obligations under the Registration Rights
Agreement.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
VALID TENDER. Except as set forth below, in order for Old Capital
Securities to be validly tendered pursuant to the Exchange Offer, a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) or an Agent's Message, with any required signature guarantees and
any other required documents, must be received by the Exchange Agent at one
of its addresses set forth under "--The Exchange Agent," and either (i)
tendered Old Capital Securities must be received by the Exchange Agent, or
(ii) such Old Capital Securities must be tendered pursuant to the
procedures for book-entry transfer set forth below and a book-entry
confirmation, including an Agent's Message if the tendering holder has not
delivered a Letter of Transmittal, must be received by the Exchange Agent,
in each case on or prior to the Expiration Date, or (iii) the guaranteed
delivery procedures set forth below must be complied with.
The term "Agent's Message" means a message, transmitted by DTC to, and
received by, the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment
from the tendering participant, which acknowledgment states that such
participant has received and agrees to be bound by the terms of the Letter
of Transmittal (including the representations contained therein), and that
the Trust and the Company may enforce the Letter of Transmittal against
such participant.
If less than all of the Old Capital Securities are tendered, a
tendering holder should fill in the amount of Old Capital Securities being
tendered in the appropriate box on the Letter of Transmittal. The entire
amount of Old Capital Securities delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE
TENDERING HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL,
RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY
SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
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BOOK-ENTRY TRANSFER. The Exchange Agent will establish an account
with respect to the Old Capital Securities at DTC for purposes of the
Exchange Offer. Any financial institution that is a participant in DTC's
book-entry transfer facility system may make a book-entry delivery of the
Old Capital Securities by causing DTC to transfer such Old Capital
Securities into the Exchange Agent's account at DTC in accordance with
DTC's procedures for transfers. However, although delivery of Old Capital
Securities may be effected through book-entry transfer into the Exchange
Agent's account at DTC, the Letter of Transmittal (or facsimile thereof),
or an Agent's Message, properly completed and duly executed, with any
required signature guarantees and any other required documents, must in any
case be delivered to and received by the Exchange Agent at one of its
addresses set forth under "--The Exchange Agent" on or prior to the
Expiration Date, or the guaranteed delivery procedure set forth below must
be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
SIGNATURE GUARANTEES. Certificates for the Old Capital Securities
need not be endorsed and signature guarantees on the Letter of Transmittal
are unnecessary unless (i) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the
certificate or (ii) such holder completes the box entitled "Special
Issuance Instructions" or "Special Delivery Instructions" in the Letter of
Transmittal. In the case of (i) or (ii) above, such certificates for Old
Capital Securities must be duly endorsed or accompanied by a properly
executed bond power, with the endorsement or signature on the bond power
and on the Letter of Transmittal guaranteed by a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act as an "eligible guarantor
institution," including (as such terms are defined therein): (A) a bank;
(B) a broker, dealer, municipal securities broker or dealer or government
securities broker or dealer; (C) a credit union; (D) a national securities
exchange, registered securities association or clearing agency; or (E) a
savings association, that is a participant in a Securities Transfer
Association (an "Eligible Institution"), unless surrendered on behalf of
such Eligible Institution. See Instruction 1 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a holder desires to tender Old Capital
Securities pursuant to the Exchange Offer and the Old Capital Securities
are not immediately available or time will not permit all required documents
to reach the Exchange Agent on or prior to the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis,
such Old Capital Securities may nevertheless be tendered, provided that all
of the following guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
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(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form accompanying the Letter of Transmittal,
or an Agent's Message, is received by the Exchange Agent, as provided
below, on or prior to the Expiration Date; and
(iii) the certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), or an Agent's Message, with any required signature guarantees and
any other documents required by the Letter of Transmittal, are received by
the Exchange Agent within three New York Stock Exchange trading days after
the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or
transmitted by facsimile or mail to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of New
Capital Securities in exchange for Old Capital Securities tendered and
accepted for exchange pursuant to the Exchange Offer will in all cases be
made only after timely receipt by the Exchange Agent of Old Capital
Securities, or of a book-entry confirmation with respect to such Old
Capital Securities, and a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), or an Agent's Message, together with
any required signature guarantees and any other documents required by the
Letter of Transmittal. Accordingly, the delivery of New Capital Securities
might not be made to all tendering holders at the same time, and will
depend upon when Old Capital Securities, book-entry confirmations with
respect to Old Capital Securities and other required documents are received
by the Exchange Agent.
The Trust's and the Company's acceptance for exchange of Old Capital
Securities tendered pursuant to any of the procedures described above will
constitute a binding agreement between the tendering holder, the Company
and the Trust upon the terms and subject to the conditions of the Exchange
Offer.
DETERMINATION OF VALIDITY. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for
exchange of any tendered Old Capital Securities will be determined by the
Company and the Trust, in their sole discretion, which determination shall
be final and binding on all parties. The Company and the Trust reserve the
absolute right, in their sole and absolute discretion, to reject any and
all tenders determined by them not to be in proper form or the acceptance
of which, or exchange for, may, in the opinion of counsel to the Company
and the Trust, be unlawful. The Company and the Trust also reserve the
absolute right, subject to applicable law, to waive any of the conditions
of the Exchange Offer as set forth under "--Conditions to the Exchange
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Offer" or any condition or irregularity in any tender of Old Capital
Securities of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders.
The interpretation by the Company and the Trust of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and
the instructions thereto) will be final and binding. No tender of Old
Capital Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived.
Neither the Company, the Trust, any affiliates or assigns of the Company or
the Trust, the Exchange Agent nor any other person shall be under any duty
to give any notification of any irregularities in tenders or incur any
liability for failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of
attorney or any other document required by the Letter of Transmittal is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a Company or other person acting in a fiduciary or
representative capacity, such person should so indicate when signing, and
unless waived by the Company and the Trust, proper evidence satisfactory to
the Company and the Trust, in their sole discretion, of such person's
authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or
registered in the name of a broker, dealer, commercial bank, trust company
or other nominee or custodian is urged to contact that entity promptly if
such beneficial holder wishes to participate in the Exchange Offer.
RESALES OF NEW CAPITAL SECURITIES
The Company and the Trust are making the Exchange Offer in reliance on
the position of the staff of the Division of Corporation Finance of the
Commission set forth in certain interpretive letters addressed to third
parties in other transactions. However, neither the Company nor the Trust
sought its own interpretive letter and there can be no assurance that the
staff of the Division of Corporation Finance of the Commission would make a
similar determination with respect to the Exchange Offer as it has in such
interpretive letters to third parties. Based on these interpretations by
the staff of the Division of Corporation Finance of the Commission, and
subject to the two immediately following sentences, the Company and the
Trust believe that New Capital Securities issued pursuant to this Exchange
Offer in exchange for Old Capital Securities may be offered for resale,
resold and otherwise transferred by a holder thereof (other than a holder
who is a broker-dealer) without further compliance with the registration
and prospectus delivery requirements of the Securities Act, provided that
such New Capital Securities are acquired in the ordinary course of the
holder's business and that the holder is not participating, and has no
arrangement or understanding with any person to participate, in a
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distribution (within the meaning of the Securities Act) of the New Capital
Securities. However, any holder of Old Capital Securities that is an
"affiliate" of the Company or the Trust or that intends to participate in
the Exchange Offer for the purpose of distributing New Capital Securities,
or any broker-dealer who purchased Old Capital Securities from the Trust to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act, (i) will not be able to rely on the interpretations of the
staff of the Division of Corporation Finance of the Commission set forth in
the above-mentioned interpretive letters, (ii) will not be permitted or
entitled to tender such Old Capital Securities in the Exchange Offer and
(iii) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or other
transfer of such Old Capital Securities unless the sale is made pursuant to
an exemption from such requirements. In addition, as described below, if
any broker-dealer holds Old Capital Securities acquired for its own account
as a result of market-making or other trading activities and exchanges such
Old Capital Securities for New Capital Securities, then such broker-dealer
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of such New Capital Securities.
Each holder of Old Capital Securities who wishes to exchange Old
Capital Securities for New Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an "affiliate" of the Company or
the Trust, (ii) any New Capital Securities to be received by it are being
acquired in the ordinary course of business, (iii) it has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of New Capital Securities to be received in
the Exchange Offer, and (iv) if it is not a broker-dealer, it is not
engaged in, and does not intend to engage in, a distribution (within the
meaning of the Securities Act) of such New Capital Securities. Any
broker-dealer and any such holder of Old Capital Securities using the Exchange
Offer to participate in a distribution of the New Capital Securities to be
acquired in the Exchange Offer (i) could not, under current Commission
policy, rely on the Commission's interpretive letters referred to above,
and (ii) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction. The Letter of Transmittal contains the foregoing
representations.
In addition, the Company and the Trust may require a holder, as a
condition to such holder's eligibility to participate in the Exchange
Offer, to furnish to the Company and the Trust (or an agent thereof) in
writing information as to the number of "beneficial owners" (within the
meaning of Rule 13d-3 under the Exchange Act) on behalf of whom such holder
holds the Old Capital Securities to be exchanged in the Exchange Offer.
Each Participating Broker-Dealer will be deemed to have acknowledged by
execution of the Letter of Transmittal or delivery of an Agent's Message
that it acquired the Old Capital Securities for its own account as the
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result of market-making activities or other trading activities and must
agree that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such New Capital
Securities. The Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a Participating Broker-Dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. Based on the position taken by the staff of the Division
of Corporation Finance of the Commission in the interpretive letters
referred to above, the Company and the Trust believe that Participating
Broker-Dealers who acquired Old Capital Securities for their own accounts
as a result of market-making activities or other trading activities may
fulfill their prospectus delivery requirements with respect to the New
Capital Securities received upon exchange of such Old Capital Securities
(other than Old Capital Securities which represent an unsold allotment from
the original sale of the Old Capital Securities) with a prospectus meeting
the requirements of the Securities Act, which may be the prospectus
prepared for an exchange offer so long as it contains a description of the
plan of distribution with respect to the resale of such New Capital
Securities. Accordingly, this Prospectus, as it may be amended or
supplemented from time to time, may be used by a Participating
Broker-Dealer during the period referred to below in connection with
resales of New Capital Securities received in exchange for Old Capital
Securities where such Old Capital Securities were acquired by such
Participating Broker-Dealer for its own account as a result of
market-making or other trading activities. Subject to certain provisions
set forth in the Registration Rights Agreement, the Company and the Trust
have agreed that this Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating Broker-Dealer in connection
with resales of such New Capital Securities for a period ending 180 days
after the effective date of the Registration Statement (subject to
extension under certain limited circumstances described below). See "Plan
of Distribution." However, a Participating Broker-Dealer who intends to
use this Prospectus in connection with the resale of New Capital Securities
received in exchange for Old Capital Securities pursuant to the Exchange
Offer must notify the Company or the Trust, or cause the Company or the
Trust to be notified, on or prior to the Expiration Date, that it is a
Participating Broker-Dealer. Such notice may be given in the space
provided for that purpose in the Letter of Transmittal or may be delivered
to the Exchange Agent at one of its addresses set forth herein under "--The
Exchange Agent." Any Participating Broker-Dealer who is an "affiliate" of
the Company or the Trust may not rely on such interpretive letters and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders Old
Capital Securities pursuant to the Exchange Offer will be deemed to have
agreed, by execution of the Letter of Transmittal, that, upon receipt of
notice from the Company or the Trust of the occurrence of any event or the
discovery of any fact which makes any statement contained or incorporated
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by reference in this Prospectus untrue in any material respect or which
causes this Prospectus to omit to state a material fact necessary in order
to make the statements contained or incorporated by reference herein, in
light of the circumstances under which they were made, not misleading or of
the occurrence of certain other events specified in the Registration Rights
Agreement, such Participating Broker-Dealer will suspend the sale of New
Capital Securities pursuant to this Prospectus until the Company or the
Trust has amended or supplemented this Prospectus to correct such
misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such Participating Broker-Dealer or the Company
or the Trust has given notice that the sale of the New Capital Securities
may be resumed, as the case may be. If the Company or the Trust gives such
notice to suspend the sale of the New Capital Securities, it shall extend
the 180-day period referred to above during which Participating
Broker-Dealers are entitled to use this Prospectus in connection with the
resale of New Capital Securities by the number of days during the period
from and including the date of the giving of such notice to and including
the date when Participating Broker-Dealers shall have received copies of
the amended or supplemented Prospectus necessary to permit resales of the
New Capital Securities or to and including the date on which the Company or
the Trust has given notice that the sale of New Capital Securities may be
resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written, telegraphic,
telex or facsimile transmission of such notice of withdrawal must be timely
received by the Exchange Agent at one of its addresses set forth under
"--The Exchange Agent" on or prior to the Expiration Date. Any such notice
of withdrawal must specify the name of the person who tendered the Old
Capital Securities to be withdrawn, the aggregate Liquidation Amount of Old
Capital Securities to be withdrawn, and (if certificates for such Old
Capital Securities have been tendered) the name of the registered holder of
the Old Capital Securities as set forth on the Old Capital Securities, if
different from that of the person who tendered such Old Capital Securities.
If Old Capital Securities have been delivered or otherwise identified to
the Exchange Agent, then prior to the physical release of such Old Capital
Securities, the tendering holder must submit the serial numbers shown on
the particular Old Capital Securities to be withdrawn and the signature on
the notice of withdrawal must be guaranteed by an Eligible Institution,
except in the case of Old Capital Securities tendered for the account of an
Eligible Institution. If Old Capital Securities have been tendered
pursuant to the procedures for book-entry transfer set forth in
"--Procedures for Tendering Old Capital Securities," the notice of
withdrawal must specify the name and number of the account at DTC to be
credited with the withdrawal of Old Capital Securities, in which case a
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notice of withdrawal will be effective if delivered to the Exchange Agent
by written, telegraphic, telex or facsimile transmission. Withdrawals of
tenders of Old Capital Securities may not be rescinded. Old Capital
Securities properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent
time on or prior to the Expiration Date by following any of the procedures
described above under "--Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Company
and the Trust, in their sole discretion, which determination shall be final
and binding on all parties. Neither the Company, the Trust, any affiliates
or assigns of the Company or the Trust, the Exchange Agent nor any other
person shall be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any Old Capital Securities which
have been tendered but which are withdrawn will be returned to the holder
thereof promptly after withdrawal.
DISTRIBUTIONS ON NEW CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such
Old Capital Securities for any period from and after the last Distribution
Date with respect to such Old Capital Securities prior to the original
issue date of the New Capital Securities and will be deemed to have waived
the right to receive any Distributions on such Old Capital Securities
accumulated from and after such Distribution Date. However, because
Distributions on the New Capital Securities will accumulate from the last
Distribution Date with respect to Old Capital Securities prior to the
original issue date of the New Capital Securities, the amount of the
Distributions received by holders whose Old Capital Securities are accepted
for exchange will not be affected by the exchange.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Trust and the Company will not be
required to accept for exchange, or to exchange, any Old Capital Securities
for any New Capital Securities, and, as described below, may terminate the
Exchange Offer (whether or not any Old Capital Securities have theretofore
been accepted for exchange) or may waive any conditions to or amend the
Exchange Offer, if there shall occur a change in applicable law or
Commission policy which currently permits the New Capital Securities issued
pursuant to the Exchange Offer in exchange for Old Capital Securities to be
offered for resale, resold and otherwise transferred by holders thereof
(other than broker-dealers and any such holder which is an "affiliate" of
the Company or the Trust within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
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delivery provisions of the Securities Act, provided that such New Capital
Securities are acquired in the ordinary course of such holders' business
and such holders have no arrangement or understanding with any person to
participate in the distribution of such New Capital Securities.
If the Company and the Trust determine in their sole and absolute
discretion that the foregoing event has occurred, the Company and the Trust
may, subject to applicable law, terminate the Exchange Offer (whether or
not any Old Capital Securities have theretofore been accepted for exchange)
or may waive any such condition or otherwise amend the terms of the
Exchange Offer in any respect. If such waiver or amendment constitutes a
material change to the Exchange Offer, the Company and the Trust will
promptly disclose such waiver by means of a prospectus supplement that will
be distributed to the registered holders of the Old Capital Securities, and
the Company and the Trust will extend the Exchange Offer to the extent
required by Rule 14e-1 under the Exchange Act.
CERTAIN REGISTRATION RIGHTS OF UNEXCHANGED CAPITAL SECURITIES
If (i) the Company and the Trust are not required to file a
Registration Statement relating to the Exchange Offer or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable
law or Commission policy, (ii) the Company has received an opinion of
counsel 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, (B) interest payable by
the Company on such 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 Capital 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 Old
Capital 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:
(1) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Registration Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1) the 150th day
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after the date on which the Trust and the Company determine that they are
not required to file the Registration Statement or (2) the 150th day after
the date on which the Trust and the Company receive notice from a holder 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" (as defined in the
Registration Rights Agreement), the Holders of which shall have provided
certain information required by the Registration Rights Agreement, PROVIDED
that, in the event of a Shelf Registration due solely to notice provided by
a holder in accordance with clause (iii) above, the Shelf Registration
shall cover only resales of Transfer Restricted Securities by all such
holders; and
(2) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 180th day after the Shelf
Filing Deadline.
Furthermore, the Trust and the Company shall use their respective best
efforts to keep such Shelf Registration Statement continuously effective,
supplemented and amended to the extent necessary to ensure that it is
available for resales by the holders of Transfer Restricted Securities
entitled to the benefit of the Registration Rights Agreement, and to ensure
that it conforms with the requirements of the Registration Rights Agreement,
the Securities Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period ending on January 31, 2000.
THE EXCHANGE AGENT
Bankers Trust Company has been appointed as Exchange Agent for the
Exchange Offer. Delivery of the Letters of Transmittal and any other
required documents, questions, requests for assistance, and requests for
additional copies of this Prospectus or of the Letter of Transmittal should
be directed to the Exchange Agent as follows:
<TABLE>
<CAPTION>
BY MAIL: BY HAND: BY OVERNIGHT MAIL OR COURIER:
<S> <C> <C>
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust and Agency Group Corporate Trust and Agency Group
P.O. Box 292737 Receipt & Delivery Window Reorganization Unit
Nashville, TN 37229-2737 123 Washington Street, 1st Floor 648 Grassmere Park Road
New York, NY 10006 Nashville, TN 37211
</TABLE>
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FEES AND EXPENSES
The Company has agreed to pay the Exchange Agent reasonable and
customary fees for its services and will reimburse it for its reasonable
out-of-pocket expenses in connection therewith. The Company will also pay
brokerage houses and other custodians, nominees and fiduciaries the
reasonable out-of-pocket expenses incurred by them in forwarding copies of
this Prospectus and related documents to the beneficial owners of Old
Capital Securities and in handling or tendering Old Capital Securities for
their customers.
Holders who tender their Old Capital Securities for exchange will not
be obligated to pay any transfer taxes in connection therewith. If,
however, New Capital Securities are to be delivered to, or are to be issued
in the name of, any person other than the registered holder of the Old
Capital Securities tendered, or if a transfer tax is imposed for any reason
other than the exchange of Old Capital Securities in connection with the
Exchange Offer, then the amount of any such transfer taxes (whether imposed
on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such tendering
holder.
Neither the Company nor the Trust will make any payment to brokers,
dealers or others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF NEW CAPITAL SECURITIES
Pursuant to the terms of the Declaration of Trust, the Regular
Trustees (on behalf of the Trust), have issued the Old Capital Securities
and the Common Securities and will issue the New Capital Securities. The
New Capital Securities will represent undivided beneficial ownership
interests in the assets of the Trust and the holders thereof will be
entitled to a preference in certain circumstances with respect to
Distributions and amounts payable on redemption or liquidation over the
Common Securities, as well as other benefits as described in the
Declaration of Trust. This summary of certain provisions of the Capital
Securities and the Declaration of Trust does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, all the
provisions of the Declaration of Trust, including the definitions therein
of certain terms, and the Trust Indenture Act. Wherever particular defined
terms of the Declaration of Trust (as supplemented or amended from time to
time) are referred to herein, the definitions of such defined terms are
incorporated herein by reference.
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GENERAL
The Capital Securities (including both the Old Capital Securities and
the New Capital Securities) will rank PARI PASSU, and payments will be made
thereon PRO RATA, with the Common Securities except as described under
"--Subordination of Common Securities." Legal title to the Junior Subordinated
Debentures will be held by the Property Trustee in trust for the benefit of
the holders of the Capital Securities and the Common Securities. The
Guarantee will be a guarantee on a subordinated basis with respect to the
Capital Securities but will not guarantee payment of Distributions or
amounts payable on redemption or liquidation of the Capital Securities when
the Trust does not have sufficient funds available to make such payments.
See "Description of New Guarantee." The Company's obligations under the
Guarantee, taken together with its obligations under the Junior
Subordinated Debentures and the Indenture, including its obligation to pay
all costs, expenses and liabilities of the Trust (other than with respect
to the Capital Securities), constitute a full and unconditional guarantee
of all of the Trust's obligations under the Capital Securities.
Holders of the Capital Securities have no preemptive or similar
rights.
DISTRIBUTIONS
Distributions on each Capital Security will be payable at a variable
annual rate equal to LIBOR plus 0.80% on the liquidation amount of $1,000,
payable quarterly in arrears on the 1st day of February, May, August and
November of each year. Distributions will accumulate from the last
Distribution Date with respect to the Old Capital Securities prior to the
consummation of the Exchange Offer. The amount of Distributions payable
for any period will be computed on the basis of the actual number of days
elapsed in a year of twelve 30-day months.
Distributions on the Capital Securities must be paid on the dates
payable to the extent that the Trust has funds available for the payment of
such Distributions. The revenue of the Trust available for distribution to
holders of Capital Securities will be limited to payments under the Junior
Subordinated Debentures. See "Description of New Junior Subordinated
Debentures." If the Company does not make interest payments on the Junior
Subordinated Debentures, the Property Trustee will not have funds available
to pay Distributions on the Capital Securities.
The Company will have the right under the Indenture, so long as no
Indenture Event of Default has occurred or is continuing, to defer the
payment of interest on the Junior Subordinated Debentures at any time or
from time to time for a period not exceeding 20 consecutive quarters,
provided that no Extension Period may extend beyond the Stated Maturity of
the Junior Subordinated Debentures. Accordingly, there could be multiple
Extension Periods of varying lengths throughout the term of the Junior
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Subordinated Debentures. As a consequence of any such extension, quarterly
Distributions on the Capital Securities will be deferred by the Trust
during any such Extension Period. Distributions to which holders of the
Capital Securities are entitled will accumulate and compound quarterly at a
variable annual rate equal to LIBOR plus 0.80% from the relevant payment
date for such Distributions. The term "Distributions" as used herein shall
include any such compounded amounts (and any Additional Interest, as
defined in the Indenture) unless the context otherwise requires. 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 to the Junior Subordinated Debentures 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 with or junior in interest to the Junior Subordinated 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
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 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 Extension Period,
provided that no Extension Period may exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Junior Subordinated Debentures.
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 foregoing requirements. See
"Description of New Junior Subordinated Debentures--Option to Extend
Interest Payment Period." The Company has no current intention of
exercising its right to defer payments of interest by extending the
interest payment period of the Junior Subordinated Debentures.
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In the event that any date on which Distributions are payable on the
Capital Securities is not a Business Day, then payment of the Distributions
payable on such date will be made on the next succeeding day that is a
Business Day (and without any additional 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 with the same force and effect as if made on the date such
payment was originally payable (each date on which Distributions are
payable in accordance with the foregoing, a "Distribution Date"). 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 the City of
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 or the Indenture Trustee is closed for business.
Distributions on the Capital Securities (other than distributions on a
Redemption Date) will be payable to the holders thereof as they appear on
the register of the Trust on the relevant record dates, which shall be the
fifteenth day preceding the relevant Distribution Date. Distributions
payable on any Capital Securities that are not punctually paid on any
Distribution Date will cease to be payable to the person in whose name such
Capital Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the person in whose name
such Capital Securities are registered on the special record date or other
specified date determined in accordance with the Declaration of Trust.
REDEMPTION
MANDATORY REDEMPTION. Unless a Special Event has occurred, the
Capital Securities will not be redeemable prior to February 1, 2007. Upon
the repayment or redemption, in whole or in part, of the Junior
Subordinated Debentures, whether at Stated Maturity or upon earlier
redemption as provided in the Indenture, the proceeds from such repayment
or redemption shall be applied by the Property Trustee to redeem Capital
Securities and Common Securities upon not less than 30 nor more than 60
days' notice prior to the date fixed for repayment or redemption. If less
than all of the Junior Subordinated Debentures are to be repaid or redeemed
on a Redemption Date, then the proceeds from such repayment or redemption
shall be allocated PRO RATA to the redemption of the Capital Securities and
the Common Securities. See "Description of New Capital Securities--
Subordination of Common Securities."
SPECIAL EVENT REDEMPTION OR DISTRIBUTION OF JUNIOR SUBORDINATED
DEBENTURES. If a Special Event shall occur and be continuing, the Company
will have the right, subject to the receipt of any necessary prior approval
of the Federal Reserve, to either (i) redeem within 120 days following the
occurrence of such Special Event the Junior Subordinated Debentures on the
date of redemption (the "Redemption Date") in whole (but not in part) and
thereby cause a mandatory redemption of the Capital Securities in whole
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(but not in part) at a redemption price with respect to the Capital
Securities equal to the redemption price in respect of the Junior
Subordinated Debentures or (ii) to dissolve the Trust and, after
satisfaction of the claims of creditors of the Trust as provided by
applicable law, cause the Junior Subordinated Debentures to be distributed
to the holders of the Capital Securities and Common Securities in
liquidation of the Trust. Under current U.S. federal income tax law and
interpretations thereof and assuming, as expected, the Trust is treated as
a grantor trust, a distribution of the Junior Subordinated Debentures
should not be a taxable event to holders of the Capital Securities. Should
there be a change in law, a change in legal interpretation, certain Tax
Events or other circumstances, however, the distribution could be a taxable
event to holders of the Capital Securities. See "Certain United States
Federal Income Tax Consequences--Distribution of Junior Subordinated
Debentures or Cash upon Liquidation of the Trust."
If the Company does not elect either option described above, the
Capital Securities will remain outstanding until the repayment of the
Junior Subordinated Debentures, whether at maturity or redemption, and in
the event a Tax Event has occurred and is continuing, the Company will be
obligated to pay any additional taxes, duties, assessments and other
governmental charges (other than withholding taxes) to which the Trust has
become subject as a result of a Tax Event.
A "Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event. A "Tax Event" means the receipt by the Company 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 action or decision is announced or which action is
taken on or after the date of original issuance of the Capital Securities,
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 Junior Subordinated
Debentures, (ii) interest payable by the Company on such Junior
Subordinated Debentures 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.
A "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
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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 action 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 Junior Subordinated Debentures 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.
"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 date of original issuance of the Capital Securities.
REDEMPTION PROCEDURES
Capital Securities redeemed on each Redemption Date shall be redeemed
at the redemption price received by the Trust in respect of the Junior
Subordinated Debentures (the "Redemption Price") with the applicable
proceeds from the contemporaneous redemption or payment at Stated Maturity
of the Junior Subordinated Debentures. Redemptions of the Capital
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has sufficient funds
available for the payment of such Redemption Price. See also "Description
of New Capital Securities--Subordination of Common Securities."
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each holder of Capital
Securities to be redeemed at its registered address. If the Trust gives a
notice of redemption in respect of the Capital Securities, then, by 12:00
noon, New York City time, on the Redemption Date, to the extent funds are
available, the Property Trustee will deposit irrevocably with DTC or its
nominee funds sufficient to pay the applicable Redemption Price for all
securities held in DTC and will give DTC irrevocable instructions and
authority to pay the Redemption Price to the holders of the Capital
Securities. See "Book-Entry Issuance." If any Capital Securities are held
in certificated form, the Trust, to the extent funds are available, will
irrevocably deposit with the paying agent for such Capital 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
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the holders thereof upon surrender of their certificates evidencing the
Capital Securities. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
the holders of such Capital Securities so called for redemption will cease,
except the right of the holders of such Capital Securities to receive the
Redemption Price, but without interest on such Redemption Price, and such
Capital Securities will cease to be outstanding. In the event that any date
fixed for redemption of Capital Securities is not a Business Day, then
payment of the Redemption Price 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 such payment was originally payable. In the
event that payment of the Redemption Price in respect of Capital Securities
called for redemption is improperly withheld or refused and not paid either
by the Trust or by the Company pursuant to the Guarantee as described under
"Description of New Guarantee," Distributions on such Capital Securities
will continue to accrue at the then applicable rate, from the Redemption
Date originally established by the Trust for the Capital Securities to the
date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Capital
Security called for redemption shall be payable to the holders of such
Capital Security on the relevant record dates for the related Distribution
Dates.
Subject to applicable law (including, without limitation, U.S. federal
securities law) and to the provisions of the Declaration of Trust, the
Company 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.
The Trust may not redeem fewer than all of the outstanding Capital
Securities unless all accrued and unpaid distributions have been paid on
all Capital Securities for all quarterly distribution periods terminating
on or prior to the Redemption Date. If less than all of the Capital
Securities and Common Securities issued by the Trust are to be redeemed on
a Redemption Date, then the aggregate amount of such Capital Securities and
Common Securities to be redeemed shall be allocated PRO RATA among the
Capital Securities and the Common Securities. If the Capital Securities are
in book-entry form, they will be redeemed as described below under "Book-
Entry Issuance." 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
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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. For
all purposes of the Declaration of Trust, 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.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price 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 Distribution Date or
Redemption Date 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
payment of the Redemption Price, the full amount of such Redemption Price
on 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 Redemption Price of, the Capital Securities then
due and payable.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to the Declaration of Trust, the Trust shall automatically
dissolve upon expiration of its term and shall dissolve on the first to
occur of: (i) certain events of bankruptcy, dissolution or liquidation of
the Company or the holder of the Common Securities; (ii) the distribution
of the Junior Subordinated Debentures to the holders of the Capital
Securities and Common Securities; (iii) the repayment of all of the Capital
Securities in connection with the maturity or redemption of all of the
Junior Subordinated Debentures; and (iv) the entry by a court of competent
jurisdiction of an order for the dissolution of the Company or the Trust.
If an early dissolution occurs as described in clause (i), (ii) or
(iv) above, 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 Capital Securities and Common Securities
their PRO RATA interest in the Junior Subordinated Debentures, unless such
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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"). If such 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 Capital Securities and Common Securities shall be paid on a
PRO RATA basis. The holder(s) of the Common Securities will be entitled to
receive distributions upon any such liquidation PRO RATA with the holders
of Capital Securities, except that if an Indenture Event of Default has
occurred and is continuing, Capital Securities shall have a priority over
the Common Securities.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debentures to holders of Capital Securities (i) Capital
Securities will no longer be deemed to be outstanding, (ii) DTC or its
nominee, as a record holder of Capital Securities, will receive a
registered global certificate or certificates representing the Junior
Subordinated Debentures to be delivered upon such distribution and (iii)
any certificates representing Capital Securities held in certificated form
will be deemed to represent Junior Subordinated Debentures having an
aggregate principal amount equal to the liquidation amount of such Capital
Securities, and bearing accrued and unpaid interest in an amount equal to
the accrued and unpaid Distributions on such Capital Securities until such
certificates are presented for cancellation whereupon the Company will
issue to such holder, and the Indenture Trustee will authenticate, a
certificate representing such Junior Subordinated Debentures.
TRUST ENFORCEMENT EVENTS
An Indenture Event of Default constitutes a Trust Enforcement Event
under the Declaration of Trust with respect to the Trust Securities,
provided that pursuant to the Declaration of Trust, the holder of the
Common Securities will be deemed to have waived any Trust Enforcement Event
with respect to the Common Securities until all Trust Enforcement Events
with respect to the Capital Securities have been cured, waived or otherwise
eliminated. Until such Trust Enforcement Event with respect to the Capital
Securities has 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 with respect to certain matters
under the Declaration of Trust, and therefore the Indenture.
Upon the occurrence of a Trust Enforcement Event, the Indenture
Trustee or the Property Trustee as the holder of the Junior Subordinated
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Debentures will have the right under the Indenture to declare the principal
of and interest on the Junior Subordinated Debentures to be immediately due
and payable. Each of the Company and the Trust is required to file annually
with the Property Trustee an officer's certificate as to its compliance
with all conditions and covenants under the Declaration of Trust.
If the Property Trustee fails to enforce its rights with respect to
the Junior Subordinated Debentures held by the Trust after the holder of
record of Capital Securities has made a written request, such record holder
of Capital Securities may institute legal proceedings directly against the
Company to enforce the Property Trustee's rights under such Junior
Subordinated Debentures without first instituting any legal proceedings
against such Property Trustee or any other person or entity. In addition,
if a Trust Enforcement Event has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest, principal or
other required payments on the Junior Subordinated Debentures issued to the
Trust on the date such interest, principal or other payment is otherwise
payable, then a record holder of Capital Securities may, on or after the
respective due dates specified in the Junior Subordinated Debentures,
institute a proceeding directly against the Company under the Indenture for
enforcement of payment on Junior Subordinated Debentures having a principal
amount equal to the aggregate liquidation amount of the Capital Securities
held by such holder. In connection with such Direct Action, the Company
will be subrogated to the rights of such record holder of Capital
Securities to the extent of any payment made by the Company to such record
holder of Capital Securities.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION OF TRUST
Except as provided below and under "Description of New Guarantee--
Amendments and Assignment" and as otherwise required by law and the
Declaration of Trust, the holders of Capital Securities will have no voting
rights.
So long as any Junior Subordinated Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee
or executing any trust or power conferred on the Property Trustee with
respect to such Junior Subordinated Debentures, (ii) waive any past default
that is waivable under the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Junior Subordinated
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or such Junior Subordinated
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
liquidation amount of all outstanding Capital Securities; PROVIDED,
HOWEVER, that where a consent under the Indenture would require the consent
or act of each holder of Junior Subordinated Debentures affected thereby,
no such consent shall be given by the Property Trustee without the prior
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consent of each holder of Capital Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the holders of
Capital Securities except pursuant to a subsequent vote of the holders of
the Capital Securities. The Property Trustee shall notify each holder of
record of Capital Securities of any notice of default which it receives
with respect to the Junior Subordinated Debentures. In addition to
obtaining the foregoing approvals of the holders of Capital Securities,
prior to taking any of the foregoing actions, the Trustees shall receive an
opinion of counsel experienced in such matters to the effect that such
modification will not cause more than an insubstantial risk that the Trust
will be deemed an investment company under the Investment Company Act, or
that the Trust will not be classified as other than a grantor trust for
U.S. federal income tax purposes on account of such action.
The Declaration of Trust may be amended from time to time by the
Regular Trustees (and in certain circumstances the Property Trustee and the
Delaware Trustee), without the consent of the holders of Capital
Securities, (i) to cure any ambiguity, correct or supplement any provisions
in the Declaration of Trust that may be inconsistent with any other
provision, or to make any other provisions with respect to matters or
questions arising under the Declaration of Trust that shall not be
inconsistent with the other provisions of the Declaration of Trust or (ii)
to modify, eliminate or add to any provisions of the Declaration of Trust
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 Capital Securities
and Common 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 of the
Investment Company Act ("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 or change 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 the Declaration of Trust shall
become effective when notice thereof is given to the holders of Capital
Securities and Common Securities. The Declaration of Trust may be amended
by the holders of a majority of the Common Securities and the Regular
Trustees with (i) the consent of holders representing not less than a
majority (based upon liquidation amounts) of the outstanding Capital
Securities and (ii) receipt by the Regular Trustees of an opinion of
counsel to the effect that such amendment or the exercise of any power
granted to the Regular Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for U.S. federal income tax
purposes or the Trust's exemption from status as an "investment company"
under the Investment Company Act, PROVIDED, FURTHER that without the
consent of each holder of Capital Securities and Common Securities affected
thereby, the Declaration of Trust may not be amended to (i) change the
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amount or timing of any Distribution on the Capital Securities and Common
Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Capital Securities and Common
Securities as of a specified date or (ii) restrict the right of a holder of
Capital Securities or Common Securities to institute suit for the
enforcement of any such payment on or after such date.
Any required approval of holders of Capital Securities may be given at
a meeting of holders of Capital Securities convened for such purpose 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 given to each holder of record of Capital Securities in the
manner set forth in the Declaration of Trust.
No vote or consent of the holders of Capital Securities will be
required for the Trust to redeem and cancel its Capital Securities in
accordance with the Declaration of Trust.
Notwithstanding that holders of Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Company, the Trustees or any
affiliate of the Company or any Trustees, shall, for purposes of such vote
or consent, be treated as if they were not outstanding.
EXPENSES AND TAXES
In the Indenture, the Company, as borrower, has agreed to pay all
debts and other obligations (other than with respect to the Capital
Securities) and all costs and expenses of the Trust (including costs and
expenses relating to the organization of the Trust, the fees and expenses
of the Trustees and the costs and expenses relating to the operation of the
Trust) and to pay any and all taxes and all costs and expenses with respect
thereto (other than U.S. withholding taxes) to which the Trust might become
subject. The foregoing obligations of the Company under the Indenture are
for the benefit of, and shall be enforceable by, any person to whom any
such debts, obligations, costs, expenses and taxes are owed (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 has irrevocably waived 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 has also agreed in the
Indenture to execute such additional agreements as may be necessary or
desirable to give full effect to the foregoing.
REGISTRAR AND TRANSFER AGENT
Bankers Trust Company is acting as the initial registrar and transfer
agent for the Capital Securities.
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Registration of transfers of Capital Securities will be effected
without charge by or on behalf of the Trust, but the Trust may require
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. The Trust will not be required
(i) to register or cause to be registered the transfer or exchange of the
Capital Securities during a period beginning at the opening of business 15
days before the day of the mailing of the relevant notice of redemption and
ending at the close of business on the day of mailing of such notice of
redemption or (ii) to register or cause to be registered the transfer or
exchange of any Capital Securities so selected for redemption, except in
the case of any Capital Securities being redeemed in part, any portion
thereof not to be redeemed.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance
of a Trust Enforcement Event, undertakes to perform only such duties as are
specifically set forth in the Declaration of Trust and, after a Trust
Enforcement Event, must exercise the same degree of care and skill as a
prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the Property Trustee is under no
obligation to exercise any of the powers vested in it by the Declaration of
Trust at the request of any holder of Capital Securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities
that might be incurred thereby. 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 the
Declaration of Trust or is unsure of the application of any provision of
the Declaration of Trust, and the matter is not one on which holders of
Capital Securities are entitled under the Declaration of Trust to vote,
then the Property Trustee may, but shall be under no duty to, take such
action as is directed by the Company and, if not so directed, shall take
such action as it deems advisable and in the best interests of the holders
of the Capital Securities and the Common Securities and will have no
liability except for its own bad faith, negligence or willful misconduct.
PAYMENT AND PAYING AGENCY
Payments in respect of the Global Capital Securities (as defined
herein) shall be made to DTC, which shall credit the relevant accounts at
DTC on the applicable Distribution Dates or, if the Capital Securities are
held in certificated form, such payments shall be made by check mailed to
the address of the holder entitled thereto as such address shall appear on
the register maintained by the registrar. The paying agent (the "Paying
Agent") shall initially be the Property Trustee and any co-paying agent
chosen by the Property Trustee and acceptable to the Regular Trustees and
the Company. The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Property Trustee and the Company. In
the event that the Property Trustee shall no longer be the Paying Agent,
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the Regular Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Regular Trustees and the Company) to act as
Paying Agent.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate 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 below. The Trust may, at the request of the Company with the
consent of the majority of the Regular Trustees, merge with or into,
consolidate, amalgamate, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as
such under the laws of any State; PROVIDED THAT (i) such successor entity
(if not the Trust) either (A) expressly assumes all of the obligations of
the Trust with respect to the Capital 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 in
priority with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) if the Trust is not the successor entity,
the Company expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Property Trustee as the holder
of the Junior Subordinated Debentures, (iii) 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, (iv) 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, (v) such successor entity has a purpose identical
to that of the Trust, (vi) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Company has
received an opinion from 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 and
(B) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, (1) neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act and (2) the Trust or the successor entity will
continue to be classified as a grantor trust for U.S. federal income tax
purposes, (vii) the Company or any permitted successor or assignee owns all
of the Common Securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at
least to the extent provided by the Guarantee and (viii) such successor
entity (if not the Trust) expressly assumes all of the obligations of the
Trust with respect to the Trustees. Notwithstanding the foregoing, the
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Trust shall not, except with the consent of holders of 100% in aggregate
Liquidation Amount of the Capital Securities, consolidate, amalgamate,
merge with or into, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity
to be classified as other than a grantor trust for U.S. federal income tax
purposes.
MERGER OR CONSOLIDATION OF TRUSTEES
Any corporation into which the Property Trustee or the Delaware
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 such Trustee shall be a party, or any corporation succeeding to all
or substantially all the corporate trust business of such Trustee, shall be
the successor of such Trustee under the Declaration of Trust, provided such
corporation shall be otherwise qualified and eligible.
DESCRIPTION OF NEW JUNIOR SUBORDINATED DEBENTURES
Concurrently with the issuance of the Capital Securities, the Trust
invested the proceeds thereof, together with the consideration paid by the
Company for the Common Securities, in Old Junior Subordinated Debentures
issued by the Company. Pursuant to the Exchange Offer, the Company will
exchange the Old Junior Subordinated Debentures, in an amount corresponding
to the Old Capital Securities accepted for exchange, for a like aggregate
principal amount of New Junior Subordinated Debentures as soon as
practicable after the date hereof.
The following is a description of the New Junior Subordinated
Debentures. Because the New Junior Subordinated Debentures are identical
in all material respects to the Old Junior Subordinated Debentures (except
that the New Junior Subordinated Debentures have been registered under the
Securities Act and the Old Junior Subordinated Debentures have not been so
registered), the following discussion refers simply to the "Junior
Subordinated Debentures" and is applicable to both the New Junior
Subordinated Debentures and the Old Junior Subordinated Debentures, unless
otherwise noted.
The Old Junior Subordinated Debentures were issued and the New Junior
Subordinated Debentures are to be issued as a separate series under an
Indenture (the "Indenture") between the Company and Bankers Trust Company,
as trustee (the "Indenture Trustee"). The Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). This summary of certain terms and provisions of the Junior
Subordinated Debentures and the Indenture does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the
Indenture.
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GENERAL
The Junior Subordinated Debentures are and will be in the principal
amount equal to the aggregate liquidation amount of the Capital Securities
plus the Company's concurrent investment in the Common Securities. It is
anticipated that, until the liquidation, if any, of the Trust, each Junior
Subordinated Debenture will be held in the name of the Property Trustee in
trust for the benefit of the holders of the Capital Securities and the
Common Securities. The Junior Subordinated Debentures will bear interest at
a variable annual rate equal to LIBOR plus 0.80% on the principal amount
thereof, payable quarterly in arrears on the 1st day of February, May,
August and November of each year (each, an "Interest Payment Date"),
commencing May 1, 1997, to the person in whose name each Junior
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the fifteenth day preceding the relevant Interest
Payment Date. The amount of interest payable for any period will be
computed on the basis of the actual number of days elapsed in a year of
twelve 30-day months. In the event that any date on which interest is
payable on the Junior Subordinated Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if
made on the date such payment was originally payable. Accrued interest that
is not paid on the applicable Interest Payment Date will bear additional
interest on the amount thereof (to the extent permitted by law) at a
variable annual rate equal to LIBOR plus 0.80%, compounded quarterly. The
term "interest" as used herein shall include quarterly interest payments,
interest on quarterly interest payments not paid on the applicable Interest
Payment Date and any Additional Interest, as applicable.
The Junior Subordinated Debentures will mature on February 1, 2027
(the "Stated Maturity").
The Junior Subordinated Debentures will be unsecured and will rank
junior and be subordinate in right of payment to all Indebtedness (as
defined below) of the Company. The Indenture does not limit the incurrence
or issuance of other secured or unsecured debt of the Company, whether
under the Indenture or any existing or other indenture that the Company may
enter into in the future or otherwise. See "Description of New Junior
Subordinated Debentures--Subordination."
The Indenture does not limit the aggregate principal amount of Junior
Subordinated Debentures that may be issued thereunder.
The general provisions of the Indenture do not afford holders of the
Junior Subordinated Debentures protection in the event of a highly
leveraged or other transaction involving the Company that may adversely
affect holders of the Junior Subordinated Debentures.
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INTEREST
Bankers Trust Company, as Calculation Agent (the "Calculation Agent"),
will calculate the interest rate for each quarterly interest period based
on LIBOR determined as of two London Business Days (defined as any day,
other than a Saturday or Sunday, on which banks are open for business in
London) prior to the first day of such interest period (each, a
"Determination Date"). "LIBOR" means, with respect to a quarterly interest
period relating to an Interest Payment Date (in the following order of
priority):
(i) 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;
(ii) 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;
(iii) 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 rounded
upwards to the nearest whole multiple of .00001%) of such quotations;
(iv) 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
(v) 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
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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.
Absent manifest error, the Calculation Agent's determination of LIBOR
and its calculation of the applicable dividend rate for each interest
period will be final and binding. Investors may obtain the interest rates
for the current and preceding interest period by writing or calling
Corporate Trust Administration at the Calculation Agent at Bankers Trust
Company, 4 Albany Street, 4th Floor, New York, New York 10006 (telephone
(800) 735-7777).
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Indenture Event of Default has occurred and is
continuing, the Company has the right under the Indenture to defer the
payment of interest at any time or from time to time for a period not
exceeding 20 consecutive quarters with respect to each Extension Period,
provided that no Extension Period may extend beyond the Stated Maturity of
the Junior Subordinated Debentures. At the end of such Extension Period,
the Company must pay all interest then accrued and unpaid (together with
interest thereon at a variable annual rate equal to LIBOR plus 0.80%,
compounded quarterly, to the extent permitted by applicable law). During an
Extension Period, interest will continue to accrue and holders of Junior
Subordinated Debentures (or holders of Capital Securities while the Capital
Securities are outstanding) will be required to accrue interest income (as
OID) for U.S. federal income tax purposes. See "Certain United States
Federal Income Tax Consequences--Interest Income and Original Issue
Discount."
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 Junior Subordinated Debentures 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 with or junior in interest to the Junior Subordinated
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 other class or series of the Company's capital stock or of
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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 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 Extension Period,
provided that no Extension Period may exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Junior Subordinated Debentures.
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 must give the Property Trustee, the Regular Trustees
and the Indenture Trustee notice of its election of such Extension Period
not less than one Business Day prior to such record date. The Property
Trustee shall give notice of the Company's election to begin a new
Extension Period to the holders of the Capital Securities.
REDEMPTION
The Junior Subordinated Debentures are not redeemable prior to
February 1, 2007 unless a Special Event has occurred. The Junior
Subordinated Debentures are redeemable prior to maturity at the option of
the Company, subject to the receipt of any necessary prior approval of the
Federal Reserve, (i) on or after February 1, 2007, in whole or in part at
any time, at a redemption price equal to the principal amount of the Junior
Subordinated Debentures so redeemed plus accrued and unpaid interest, if
any, to the date of redemption or (ii) at any time in whole (but not in
part), within 120 days of the occurrence of a Special Event, at such
redemption price.
If the Junior Subordinated Debentures are redeemed, the Trust must
redeem Trust Securities having an aggregate liquidation amount equal to the
aggregate principal amount of Junior Subordinated Debentures so redeemed.
See "Description of New Capital Securities--Redemption."
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of Junior
Subordinated Debentures to be redeemed at its registered address. Unless
the Company defaults in payment of the redemption price, on and after the
redemption date interest ceases to accrue on such Junior Subordinated
Debentures or portions thereof called for redemption.
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CERTAIN COVENANTS OF THE COMPANY
Under the Indenture, if and so long as the Trust is the holder of all
of the Junior Subordinated Debentures, the Company, as borrower, will pay
to the Trust all fees and expenses related to the Trust and will pay,
directly or indirectly, all ongoing costs, expenses and liabilities of the
Trust (including any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States
or any domestic taxing authority upon the Trust but excluding obligations
under the Capital Securities and Common Securities).
The Company will also covenant that it will not, and will 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 or
repurchase or redeem any debt securities of the Company that rank PARI
PASSU with or junior in interest to the Junior Subordinated Debentures 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 with or junior in interest to the Junior Subordinated
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 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 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
Indenture Event of Default with respect to Junior Subordinated Debentures
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 in the
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Indenture and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
SUBORDINATION
In the Indenture, the Company has covenanted and agreed that any
Junior Subordinated Debentures issued thereunder will be subordinated and
junior in right of payment to all Indebtedness to the extent provided in
the Indenture. Upon any payment or distribution of assets of the Company
upon any liquidation, dissolution, winding-up, reorganization, assignment
for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with
any insolvency or bankruptcy proceeding of the Company, the holders of
Indebtedness will first be entitled to receive payment in full of principal
of and premium, if any, and interest, if any, on such Indebtedness before
the holders of Junior Subordinated Debentures or the Property Trustee on
behalf of the holders of Capital Securities will be entitled to receive or
retain any payment in respect of the principal of and premium, if any, or
interest, if any, on the Junior Subordinated Debentures; 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 of the acceleration of the maturity of any Junior
Subordinated Debentures, the holders of all Indebtedness outstanding at the
time of such acceleration will first be entitled to receive payment in full
of all amounts then due thereon (including any amounts due upon
acceleration) before the holders of Junior Subordinated Debentures will be
entitled to receive or retain any payment in respect of the principal of
and premium, if any, or interest, if any, on the Junior Subordinated
Debentures; 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.
No payments on account of principal or premium, if any, or interest,
if any, in respect of the Junior Subordinated Debentures may be made if
there shall have occurred and be continuing a default in any payment with
respect to Indebtedness, or an event of default with respect to any
Indebtedness resulting in the acceleration of the maturity thereof, or if
any judicial proceeding shall be pending with respect to any such default.
"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
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evidenced by bonds, debentures, notes or other similar instruments,
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 (i) 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 Junior Subordinated
Debentures, (ii) 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,
(iii) any indebtedness of the Company to any of its subsidiaries, (iv) any
indebtedness of the Company to any employee of the Company or (v) 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.
The Indenture places no limitation on the amount of additional
Indebtedness that may be incurred by the Company or any indebtedness or
other liabilities that may be incurred by the Company's subsidiaries. As of
December 31, 1996, Indebtedness of the Company aggregated approximately
$171 million, and the Company's subsidiaries had indebtedness and other
liabilities of approximately $1.4 billion to which the Junior Subordinated
Debentures would be effectively subordinated.
INDENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debentures that has occurred
and is continuing constitutes an "Indenture Event of Default" with respect
to the Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on the Junior
Subordinated Debentures when due (subject to the deferral of any due date
in the case of an Extension Period); or
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(ii) failure to pay any principal on the Junior Subordinated
Debentures when due whether at maturity, upon redemption, by declaration of
acceleration or otherwise; or
(iii) failure to observe or perform in any material respect any other
covenant contained in the Indenture for 90 days after written notice to the
Company from the Indenture Trustee or the holders of at least 25% in
aggregate outstanding principal amount of outstanding Junior Subordinated
Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of
Junior Subordinated Debentures have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Indenture Trustee. The Indenture Trustee or the holders of not less than
25% in aggregate outstanding principal amount of Junior Subordinated
Debentures may declare the principal due and payable immediately upon an
Indenture Event of Default, and, should the Indenture Trustee or such
holders of such Junior Subordinated Debentures fail to make such
declaration, the holders of at least 25% in aggregate liquidation amount of
the Capital Securities shall have such right. The holders of a majority in
aggregate outstanding principal amount of Junior Subordinated Debentures
may annul such declaration and waive the default if the default (other than
the non-payment of the principal of Junior Subordinated Debentures which
has become due solely by such acceleration) 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 Indenture
Trustee, and should the holders of such Junior Subordinated Debentures fail
to annul such declaration and waive such default, the holders of a majority
in aggregate liquidation amount of the Capital Securities shall have such
right.
The holders of a majority in aggregate outstanding principal amount of
the Junior Subordinated Debentures affected thereby may, on behalf of the
holders of all the Junior Subordinated Debentures, waive any past default,
except a default in the payment of principal or interest (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 Indenture Trustee) or a default in respect of a covenant
or provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Junior Subordinated
Debentures; 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 Junior Subordinated
Debentures is required, such waiver shall not be effective until each
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holder of the Capital Securities shall have consented to such waiver. The
Company is required to file annually with the Indenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF NEW CAPITAL SECURITIES
If an Indenture Event of Default has occurred and is continuing and
such event is attributable to the failure of the Company to pay interest or
principal on the Junior Subordinated Debentures on the date such interest
or principal is otherwise payable, a holder of Capital Securities may
institute a Direct Action for payment. The Company may not amend the
Indenture to remove the foregoing right to bring a Direct Action 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 a Direct Action, the Company shall remain
obligated to pay the principal of or interest on the Junior Subordinated
Debentures 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. The holders of
Capital Securities will not be able to exercise directly any other remedy
available to the holders of the Junior Subordinated Debentures.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that 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) in case the
Company consolidates with or merges into another Person or conveys,
transfers or leases its properties and assets substantially as an entirety
to any Person, the successor Person is organized under the laws of the
United States or any state or the District of Columbia, and such successor
Person (if other than the Company) expressly assumes the Company's
obligations under the Junior Subordinated Debentures issued under the
Indenture; (ii) immediately after giving effect thereto, no Indenture Event
of Default, and no event which, after notice or lapse of time or both,
would become an Indenture Event of Default, shall have happened and be
continuing; (iii) if at the time any Capital Securities are outstanding,
such transaction is permitted under the Declaration of Trust and Guarantee
and does not give rise to any breach or violation of the Declaration of
Trust or Guarantee; (iv) any such lease shall provide that it will remain
in effect so long as any Junior Subordinated Debentures are outstanding;
and (v) certain other conditions prescribed in the Indenture are met.
MODIFICATION OF INDENTURE
From time to time the Company and the Indenture Trustee may, without
the consent of the holders of the Junior Subordinated Debentures, amend,
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waive or supplement the Indenture for specified purposes, including, among
other things, curing ambiguities, defects or inconsistencies (provided that
any such action does not materially adversely affect the interest of the
holders of Junior Subordinated Debentures) and qualifying, or maintaining
the qualification of, the Indenture under the Trust Indenture Act. The
Indenture contains provisions permitting the Company and the Indenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of outstanding Junior Subordinated Debentures affected, to
modify the Indenture in a manner affecting the rights of the holders of
such Junior Subordinated Debentures; PROVIDED THAT no such modification
may, without the consent of the holder of each outstanding Junior
Subordinated Debentures so affected, (i) change the stated maturity of
Junior Subordinated Debentures, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon (except
such extension as is contemplated hereby) or (ii) reduce the percentage of
principal amount of Junior Subordinated Debentures the holders of which are
required to consent to any such modification of the Indenture, PROVIDED
THAT, so long as any Capital Securities remain outstanding, no such
modification may be made that adversely affects the holders of such Capital
Securities in any material respect, and no termination of the Indenture may
occur, and no waiver of any Indenture Event of Default or compliance with
any covenant under the Indenture may be effective, without the prior
consent of the holders of at least a majority of the aggregate liquidation
amount of the outstanding Capital Securities unless and until the principal
of the Junior Subordinated Debentures and all accrued and unpaid interest
thereon have been paid in full and certain other conditions are satisfied.
DEFEASANCE AND DISCHARGE
The Indenture provides that the Company, at the Company's option: (i)
will be discharged from any and all obligations in respect of the Junior
Subordinated Debentures (except for certain obligations to register the
transfer or exchange of Junior Subordinated Debentures, replace stolen,
lost or mutilated Junior Subordinated Debentures, maintain paying agencies
and hold moneys for payment in trust) or (ii) need not comply with certain
restrictive covenants of the Indenture (including that described in the
second paragraph under "Certain Covenants of the Company"), in each case if
the Company deposits, in trust with the Indenture Trustee, money or U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal of, and interest and premium, if
any, on the Junior Subordinated Debentures on the dates such payments are
due in accordance with the terms of such Junior Subordinated Debentures. To
exercise any such option, the Company is required to deliver to the
Indenture Trustee an opinion of counsel to the effect that the deposit and
related defeasance would not cause the holders of the Junior Subordinated
Debentures to recognize income, gain or loss for U.S. federal income tax
purposes.
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DISTRIBUTIONS OF JUNIOR SUBORDINATED DEBENTURES; BOOK-ENTRY ISSUANCE
Under certain circumstances involving the termination of the Trust,
Junior Subordinated Debentures may be distributed to the holders of the
Capital Securities in liquidation of the Trust after satisfaction of
liabilities to creditors of the Trust as provided by applicable law. If
distributed to holders of Capital Securities in liquidation, the Junior
Subordinated Debentures will initially be issued in the form of global
securities and certificated securities. DTC, or any successor depositary,
will act as depositary for such global securities. It is anticipated that
the depositary arrangements for such global securities would be
substantially identical to those in effect for the Capital Securities. For
a description of global securities and certificated securities, see "Book-
Entry Issuance."
There can be no assurance as to the market price of any Junior
Subordinated Debentures that may be distributed to the holders of Capital
Securities.
PAYMENT AND PAYING AGENTS
Bankers Trust Company initially will act as Paying Agent with respect
to the Junior Subordinated Debentures. The Company at any time may
designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent
acts, except that the Company will be required to maintain a Paying Agent
at the place of payment.
Any moneys deposited with the Indenture Trustee or any Paying Agent,
or then held by the Company in trust, for the payment of the principal of
and premium, if any, or interest on any Junior Subordinated Debentures and
remaining unclaimed for one year after such principal and premium, if any,
or interest has become due and payable shall, at the request of the
Company, be repaid to the Company and the holder of such Junior
Subordinated Debentures shall thereafter look, as a general unsecured
creditor, only to the Company for payment thereof.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures are and will be
governed by and construed in accordance with the laws of the State of New
York.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The Indenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Indenture Trustee is
under no obligation to exercise any of the powers vested in it by the
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Indenture at the request of any holder of Junior Subordinated Debentures,
unless offered reasonable indemnity by such holder against the costs,
expenses and liabilities which might be incurred thereby. The Indenture
Trustee is not required to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if the
Indenture Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it.
DESCRIPTION OF NEW GUARANTEE
The Old Guarantee was executed and delivered by the Company
concurrently with the issuance by the Trust of the Old New Capital
Securities for the benefit of the holders from time to time of such Old
Capital Securities. As soon as practicable after the date hereof, the Old
Guarantee will be exchanged by the Company for the New Guarantee for the
benefit of the holders from time to time of the Capital Securities. The
New Guarantee has been qualified under the Trust Indenture Act. In the
following discussion, the term "Guarantee" refers to both the Old Guarantee
and the New Guarantee (to the extent it replaces the Old Guarantee).
Bankers Trust Company will act as trustee ("Guarantee Trustee") under
the Guarantee. The Guarantee Trustee will hold the Guarantee on behalf of
the Trust for the benefit of the holders of the Capital Securities. This
summary of certain provisions of the Guarantee does not purport to be
complete and is subject to, and qualified in its entirety by reference to,
all of the provisions of the Guarantee, including the definitions therein
of certain terms.
GENERAL
The Company will irrevocably and unconditionally agree to pay in full
on a subordinated basis, to the extent set forth in the Guarantee and
described herein, the Guarantee Payments (as defined below) to the holders
of the Capital Securities, as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert, other
than the defense of payment. The following payments with respect to the
Capital Securities, to the extent not paid by or on behalf of the Trust
(the "Guarantee Payments"), will be subject to the Guarantee: (i) any
accumulated and unpaid Distributions required to be paid on the Capital
Securities, to the extent that the Trust has sufficient funds available
therefor at the time, (ii) the redemption price with respect to any Capital
Securities called for redemption, to the extent that the Trust has
sufficient funds available therefor at such time and (iii) upon a voluntary
or involuntary dissolution, winding up or termination of the Trust (unless
the Junior Subordinated Debentures are distributed to holders of the
Capital Securities), the lesser of (A) the aggregate liquidation amount of
the Capital Securities and all accrued and unpaid Distributions thereon to
the date of payment and (B) the amount of assets of the Trust remaining
available for distribution to holders of Capital Securities in liquidation
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of the Trust. The Company's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Company to the
holders of the applicable Capital Securities or by causing the Trust to pay
such amounts to such holders.
The Guarantee is and will be an irrevocable guarantee on a
subordinated basis of the Trust's obligations under the Capital Securities,
but will apply only to the extent that the Trust has sufficient funds
available to make such payments.
If the Company does not make interest payments on the Junior
Subordinated Debentures held by the Trust, the Trust will not be able to
pay Distributions on the Capital Securities and will not have funds legally
available therefor. The Guarantee will rank subordinate and junior in right
of payment to all general liabilities of the Company, except those made
PARI PASSU or subordinate by their express terms. See "--Status of the
Guarantee." The Guarantee does not limit the incurrence or issuance of
other secured or unsecured debt of the Company, whether under the Indenture
or any existing or other indenture that the Company may enter into in the
future or otherwise.
The Company has, through the Guarantee, the Junior Subordinated
Debentures and the Indenture, taken together, fully and unconditionally
guaranteed all of the Trust's obligations under the Capital Securities. No
single document standing alone or operating in conjunction with fewer than
all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a
full and unconditional guarantee of the Trust's obligations under the
Capital Securities. See "Relationship Among the New Capital Securities,
the Junior Subordinated Debentures and the Guarantee."
STATUS OF THE GUARANTEE
The Guarantee is and will constitute an unsecured obligation of the
Company and will rank subordinate and junior in right of payment to all
liabilities of the Company, except those made PARI PASSU or subordinate by
their express terms. The Guarantee does not place a limitation on the
amount of additional indebtedness that may be incurred by the Company.
The Guarantee will constitute a guarantee of payment and not of
collection (i.e., if the Guarantee Trustee fails to enforce the Guarantee,
the guaranteed party may institute a legal proceeding directly against the
Company to enforce its rights under the Guarantee without first instituting
a legal proceeding against any other person or entity). The Guarantee will
be held for the benefit of the holders of the Capital Securities. The
Guarantee will not be discharged except by payment of the Guarantee
Payments in full to the extent not paid by the Trust or upon distribution
of the Junior Subordinated Debentures to the holders of the Capital
Securities in exchange for all of the Capital Securities.
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AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely
affect the rights of holders of the Capital Securities (in which case no
vote will be required), the Guarantee may not be amended without the prior
approval of the holders of not less than a majority of the aggregate
liquidation amount of the outstanding Capital Securities. The manner of
obtaining any such approval will be as set forth under "Description of New
Capital Securities--Voting Rights; Amendment of the Declaration of Trust."
All guarantees and agreements contained in the Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the registered holders of the Capital
Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of
the Company to perform any of its payment or other obligations thereunder.
The holders of a majority in aggregate 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 Guarantee Trustee
in respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
If the Guarantee Trustee fails to enforce the Guarantee, any holder of
Capital Securities may institute a legal proceeding directly against the
Company to enforce its rights under the Guarantee without first instituting
a legal proceeding against the Trust, the Guarantee Trustee or any other
person or entity.
The Company, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Company in performance of the Guarantee,
undertakes to perform only such duties as are specifically set forth in the
Guarantee and, after default with respect to the Guarantee, must exercise
the same degree of care and skill as a prudent person would exercise or use
in the conduct of his or her own affairs. Subject to this provision, the
Guarantee Trustee is under no obligation to exercise any of the powers
vested in it by the Guarantee at the request of any holder of any Capital
Security unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby.
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TERMINATION OF THE NEW GUARANTEE
The Guarantee will terminate and be of no further force and effect (i)
upon full payment of the redemption price of all of the Capital Securities,
(ii) upon full payment of the amounts payable upon liquidation of the Trust
or (iii) upon distribution of Junior Subordinated Debentures to the holders
of the Capital Securities in exchange for all of the Capital Securities.
The Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the Capital Securities must
restore payment of any sums paid under the Capital Securities or the
Guarantee.
GOVERNING LAW
The Guarantee is and will be governed by and construed in accordance
with the laws of the State of New York.
DESCRIPTION OF OLD SECURITIES
The terms of the Old Securities are identical in all material respects
to the New Securities, except that (i) the Old Securities have not been
registered under the Securities Act, are subject to certain restrictions on
transfer and are entitled to certain rights under the applicable Registration
Rights Agreement (which rights will terminate upon consummation of the
Exchange Offer, except under limited circumstances), (ii) the New Capital
Securities will not provide for Additional Distributions upon a Registration
Default, and (iii) the New Junior Subordinated Debentures will not provide
for Additional Interest upon a Registration Default. The Old Capital
Securities provide, among other things, that, if a registration statement
relating to the Exchange Offer has not been filed by June 30, 1997 and
declared effective by July 30, 1997, or if the Exchange Offer is not
consummated within 30 days after the effective date of the Registration
Statement or the Registration Statement ceases to be effective and this
failure is not cured within two business days (each of the foregoing being
previously defined as a "Registration Default"), Additional Interest will
become payable in respect of the Junior Subordinated Debentures (including
in respect of amounts accruing during any Extension Period), and
corresponding Additional Distributions will become payable on the Old Capital
Securities, with respect to the first 90-day period immediately following the
occurrence of such Registration Default, in an amount equal to $0.25 per week
per $1,000 Liquidation Amount for each week (or portion thereof) that such
Registration Default remains uncured. For each subsequent 90-day period in
which the Registration Default remains uncured, this Additional Distribution
rate increases $0.05 per week per $1,000 Liquidation Amount (subject to a
maximum total of $0.50 per week per $1,000 Liquidation Amount). Upon
consummation of the Exchange Offer, holders of Old Capital Securities will
not be entitled to Additional Distributions upon a Registration Default or
any further registration rights under the Registration Rights Agreement,
except under limited circumstances. The New Securities are not, and
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upon consummation of the Exchange Offer the Old Securities will not be,
entitled to any such additional interest or Additional Distributions.
Accordingly, holders of Old Capital Securities should review the
information set forth under "Risk Factors--Certain Consequences of a
Failure to Exchange Old Capital Securities" and "Description of New
Securities."
RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
Payments of Distributions and other amounts due on the Capital
Securities (to the extent the Trust has funds available for the payment of
such Distributions) are irrevocably guaranteed by the Company as and to the
extent set forth under "Description of New Guarantee." If and to the
extent that the Company does not make payments under the Junior
Subordinated Debentures, the Trust will not pay Distributions or other
amounts due on the Capital Securities. The Guarantee does not cover payment
of Distributions when the Trust does not have sufficient funds to pay such
Distributions. In such event, a holder of Capital Securities may institute
a legal proceeding directly against the Company under the Indenture to
enforce payment of such Distributions to such holder after the respective
due dates. Taken together, the Company's obligations under the Junior
Subordinated Debentures, the Indenture and the Guarantee provide, in the
aggregate, a full and unconditional guarantee of payments of distributions
and other amounts due on the Capital Securities. No single document
standing alone or operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined operation of
these documents that has the effect of providing a full and unconditional
guarantee of the Trust's obligations under the Capital Securities. The
obligations of the Company under the Guarantee and the Junior Subordinated
Debentures are subordinate and junior in right of payment to all
Indebtedness of the Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due
on the Junior Subordinated Debentures, such payments will be sufficient to
cover Distributions and other payments due on the Capital Securities,
primarily because (i) the aggregate principal amount of the Junior
Subordinated Debentures will be equal to the sum of the aggregate stated
liquidation amount of the Capital Securities and the Common Securities;
(ii) the interest rate and interest and other payment dates on the Junior
Subordinated Debentures will match the Distribution rate and Distribution
and other payment dates for the related Capital Securities; (iii) the
Company will pay for all and any costs, expenses and liabilities of the
Trust except the Trust's obligations under the Capital Securities; and (iv)
the Declaration of Trust further provides that the Trust will not engage in
any activity that is not consistent with the limited purposes of the Trust.
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Notwithstanding anything to the contrary in the Indenture, the Company
has the right to set-off any payment it is otherwise required to make
thereunder with and to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a related payment under
the Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF NEW CAPITAL SECURITIES
A holder of Capital Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee,
the Trust or any other person or entity.
A default or event of default under any Indebtedness of the Company
will not constitute a default or Indenture Event of Default. In addition,
in the event of payment defaults under, or acceleration of, Indebtedness of
the Company, the subordination provisions of the Indenture provide that no
payments may be made in respect of the Junior Subordinated Debentures until
such Indebtedness has been paid in full or any payment default thereunder
has been cured or waived. Failure to make required payments on the Junior
Subordinated Debentures would constitute an Indenture Event of Default
under the Indenture.
LIMITED PURPOSE OF TRUST
The Capital Securities evidence a beneficial ownership interest in the
assets of the Trust, and the Trust exists for the sole purpose of issuing
the Capital Securities and the Common Securities and investing the proceeds
thereof in Junior Subordinated Debentures. A principal difference between
the rights of a holder of Capital Securities and a holder of Junior
Subordinated Debentures is that a holder of Junior Subordinated Debentures
is entitled to receive from the Company the principal amount of and
interest accrued on Junior Subordinated Debentures held, while a holder of
Capital Securities is entitled to receive Distributions from the Trust (or
from the Company under the Guarantee) if and to the extent the Trust has
funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or
liquidation of the Trust involving the liquidation of the Junior
Subordinated Debentures, the holders of the Capital Securities will be
entitled to receive, out of assets held by the Trust, the liquidation
distribution in cash. See "Description of New Capital Securities--
Liquidation Distribution Upon Dissolution." Upon any voluntary or
involuntary liquidation or bankruptcy of the Company, the Property Trustee,
as holder of the Junior Subordinated Debentures, would be a subordinated
creditor of the Company, subordinated in right of payment to all
Indebtedness, but entitled to receive payment in full of principal and
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interest before any shareholders of the Company receive payments or
distributions. Since the Company is the guarantor under the Guarantee and
has agreed to pay for all costs, expenses and liabilities of the Trust
(other than the Trust's obligations to the holders of the Capital
Securities), the positions of a holder of Capital Securities and a holder
of Junior Subordinated Debentures relative to other creditors and to
shareholders of the Company in the event of liquidation or bankruptcy of
the Company would be substantially the same.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In the opinion of Warner Norcross & Judd LLP, in its capacity as tax
counsel to the Company ("Tax Counsel"), the following summary accurately
describes the material U.S. federal income tax consequences that may be
relevant to the purchase, ownership and disposition of the Capital
Securities. Unless otherwise stated, this summary deals only with Capital
Securities held as capital assets by U.S. Holders (defined below) who
purchase the Capital Securities in the Exchange Offer. As used herein, a
"U.S. Holder" means (i) a person that is a citizen or resident of the
United States, (ii) a corporation, partnership or other entity created or
organized in or under the laws of the U.S. or any political subdivision
thereof, (iii) an estate the income of which is subject to U.S. federal
income taxation regardless of its source or (iv) any trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust and one or more U.S. fiduciaries have the
authority to control all the substantial decisions of such trust. The tax
treatment of a holder may vary depending on its particular situation. This
summary does not address all the tax consequences that may be relevant to a
particular holder or to holders that may be subject to special tax
treatment, such as banks, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or
currencies or tax-exempt investors. In addition, this summary does not
include any description of any alternative minimum tax consequences or the
tax laws of any state, local or foreign government that may be applicable
to a holder of Capital Securities. This summary is based on the Code, the
Treasury regulations promulgated thereunder and administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis. The authorities on which this
summary is based are subject to various interpretations, and the opinions
of Tax Counsel are not binding on the Internal Revenue Service ("IRS") or
the courts, either of which could take a contrary position. Moreover, no
rulings have been or will be sought from the IRS with respect to the
transactions described herein. Accordingly, there can be no assurance that
the IRS will not challenge the opinions expressed herein or that a court
would not sustain such a challenge. Nevertheless, Tax Counsel has advised
that it is of the view that, if challenged, the opinions expressed herein
would be sustained by a court with jurisdiction in a properly presented
case.
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HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED
STATES FEDERAL OR OTHER TAX LAWS. FOR A DISCUSSION OF THE POSSIBLE
REDEMPTION OF THE CAPITAL SECURITIES UPON THE OCCURRENCE OF CERTAIN TAX
EVENTS SEE "DESCRIPTION OF NEW CAPITAL SECURITIES--REDEMPTION."
EXCHANGE OF CAPITAL SECURITIES
The exchange of Old Capital Securities for New Capital Securities
should not be a taxable event to holders for United States federal income
tax purposes. The exchange of Old Capital Securities for New Capital
Securities pursuant to the Exchange Offer should not be treated as an
"exchange" for United States federal income tax purposes because the New
Capital Securities should not be considered to differ materially in kind or
extent from the Old Capital Securities and because the exchange will occur
by operation of the terms of the Old Capital Securities. If, however, the
exchange of the Old Capital Securities for the New Capital Securities were
treated as an exchange for United States federal income tax purposes, such
exchange should constitute a recapitalization for federal income tax
purposes. Accordingly, the New Capital Securities should have the same
issue price as the Old Capital Securities, and a holder should have the
same adjusted tax basis and holding period in the New Capital Securities as
the holder had in the Old Capital Securities immediately before the
exchange.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the New Capital Securities in the
Exchange Offer, Tax Counsel is of the opinion that under current law and
assuming full compliance with the terms of the Declaration of Trust and
other documents, the Trust will be classified as a grantor trust and will
not be taxable as a corporation for U.S. federal income tax purposes.
Accordingly, for U.S. federal income tax purposes, each holder of Capital
Securities will be treated as owning an undivided beneficial interest in
the Junior Subordinated Debentures and, thus, will be required to include
in its gross income its pro rata share of interest income or original issue
discount that is paid or accrued on the Junior Subordinated Debentures.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES
The Company, the Trust and the holders of the Capital Securities (by
the acceptance of a beneficial interest in a Capital Security) will agree
to treat the Junior Subordinated Debentures as indebtedness for all U.S.
federal income tax purposes. In connection with the issuance of the New
Junior Subordinated Debentures in the Exchange Offer, Tax Counsel is of the
opinion that, under current law, and based on the representations, facts
and assumptions set forth herein, the Junior Subordinated Debentures will
be classified as indebtedness for U.S. federal income tax purposes.
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INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under the applicable Treasury regulations, the Junior Subordinated
Debentures will not be treated as issued with "original issue discount"
("OID") within the meaning of section 1273(a) of the Code. Accordingly,
except as set forth below, stated interest on the Junior Subordinated
Debentures generally will be taxable to a holder as ordinary income at the
time it is paid or accrued in accordance with such holder's regular method
of tax accounting.
If, however, the Company exercises its right to defer payments of
interest on the Junior Subordinated Debentures, the Junior Subordinated
Debentures will become OID instruments at such time and all holders of the
Junior Subordinated Debentures and, consequently, holders of the Capital
Securities will be required to accrue their pro rata share of OID (which
will include both the stated interest and DE MINIMIS OID (if any) on the
Junior Subordinated Debentures) on a daily economic accrual basis during
the Extension Period even though the Company will not pay such interest
until the end of the Extension Period, and even though some holders may use
the cash method of tax accounting. Moreover, thereafter the Junior
Subordinated Debentures will be taxed as OID instruments for as long as
they remain outstanding. Thus, even after the end of an Extension Period,
all holders would be required to continue to include the stated interest
(and any DE MINIMIS OID) on the Junior Subordinated Debentures in income on
a daily basis, regardless of their method of tax accounting and in advance
of receipt of the cash attributable to such interest income. Under the OID
economic accrual rules, a holder would accrue an amount of interest income
each year that approximates the stated interest payments called for under
the terms of the Junior Subordinated Debentures, and actual cash payments
of interest on the Junior Subordinated Debentures would not be reported
separately as taxable income. Any amount of OID included in a holder's
gross income (whether or not during an Extension Period) with respect to a
Capital Security will increase such holder's tax basis in such Capital
Security, and the amount of Distributions received by a holder in respect
of such accrued OID will reduce the tax basis of such Capital Security.
The Treasury regulations described above have not yet been addressed
in any rulings or other interpretations by the IRS, and it is possible that
the IRS could take a contrary position. If the IRS were to assert
successfully that the stated interest on the Junior Subordinated Debentures
was OID regardless of whether the Company exercises its option to defer
payments of interest on such debentures, all holders of Capital Securities
would be required to include such stated interest in income on a daily
economic accrual basis as described above.
Corporate holders of Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized by such
holders with respect to the Capital Securities.
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DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF
THE TRUST
As described under the caption "Description of New Junior Subordinated
Debentures--Distribution of New Junior Subordinated Debentures; Book-Entry
Issuance," Junior Subordinated Debentures may be distributed to holders in
exchange for the Capital Securities and in liquidation of the Trust. Under
current law, such a distribution would be non-taxable, and will result in
the holder receiving directly its pro rata share of the Junior Subordinated
Debentures previously held indirectly through the Trust, with a holding
period and aggregate tax basis equal to the holding period and aggregate
tax basis such holder had in its Capital Securities before such
distribution. If, however, the liquidation of the Trust were to occur
because the Trust is subject to U.S. federal income tax with respect to
income accrued or received on the Junior Subordinated Debentures, the
distribution of the Junior Subordinated Debentures to holders would be a
taxable event to the Trust and to each holder and a holder would recognize
gain or loss as if the holder had exchanged its Capital Securities for the
Junior Subordinated Debentures it received upon liquidation of the Trust. A
holder would accrue interest in respect of the Junior Subordinated
Debentures received from the Trust in the manner described above under
"--Interest Income and Original Issue Discount."
Under certain circumstances described herein (see "Description of New
Capital Securities--Redemption"), the Junior Subordinated Debentures may be
redeemed for cash, with the proceeds of such redemption distributed to
holders in redemption of their Capital Securities. Under current law, such
a redemption would constitute a taxable disposition of the redeemed Capital
Securities for U.S. federal income tax purposes, and a holder would
recognize gain or loss as if it sold such redeemed Capital Securities for
cash. See "--Sales of New Capital Securities" immediately below.
SALES OF NEW CAPITAL SECURITIES
A holder that sells Capital Securities will recognize gain or loss
equal to the difference between the amount realized by such holder on the
sale of the Capital Securities (except to the extent that such amount
realized is characterized as a payment in respect of accrued but unpaid
interest on such holder's allocable share of the Junior Subordinated
Debentures that the holder had not included in gross income previously) and
the holder's adjusted tax basis in the Capital Securities sold. Such gain
or loss generally will be a capital gain or loss and generally will be
taxable as a long-term capital gain or loss if the Capital Securities have
been held for more than one year. Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for U.S. federal
income tax purposes.
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PROPOSED TAX LAW CHANGES
On February 6, 1997, President Clinton released his budget
proposals for fiscal year 1998. One of the revenue provisions of those
proposals would generally deny interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 15
years and that is not shown as indebtedness on the separate balance sheet
of the issuer or, where the instrument is issued to a related party (other
than a corporation) where the holder or some other related party issues a
related instrument that is not shown as indebtedness on the issuer's
consolidated balance sheet. If enacted as proposed by the President, this
provision would be effective for instruments issued on or after the date of
first action by a Congressional committee with respect to the proposal. It
is not clear from the President's proposals as to what constitutes
"Congressional committee action" with respect to the proposal. If this
provision were to apply to the Junior Subordinated Debentures, the Company
would not be able to deduct interest on the Junior Subordinated Debentures.
There can be no assurance, however, that future legislative or
administrative proposals or final legislation will not adversely affect the
ability of the Company to deduct interest on the Junior Subordinated
Debentures or otherwise affect the tax treatment described herein. Such a
change, therefore, could give rise to a Tax Event, which would permit the
Company to cause the redemption of the Capital Securities or to terminate
the Trust and distribute the Junior Subordinated Debentures to the holders
of Trust Securities in liquidation of the Trust as described more fully
under "Description of New Capital Securities-- Redemption--Special Event
Redemption or Distribution of Junior Subordinated Debentures."
NON-U.S. HOLDERS
As used herein, the term "Non-U.S. Holder" means any person that is
not a U.S. Holder (as defined above). As discussed above, the Capital
Securities will be treated as evidence of an indirect beneficial ownership
interest in the Junior Subordinated Debentures. See "--Classification of
the Trust." Thus, under present U.S. federal income tax law, and subject to
the discussion below concerning backup withholding:
(i) no withholding of U.S. federal income tax will be required with
respect to the payment by the Company or any paying agent of principal or
interest (which for purposes of this discussion includes any OID) with
respect to the Capital Securities (or on the Junior Subordinated
Debentures) to a Non-U.S. Holder, provided (A) that the beneficial owner of
the Capital Securities ("Beneficial Owner") does not actually or
constructively own 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote within the meaning of
section 871(h)(3) of the Code and the regulations thereunder, (B) the
Beneficial Owner is not a controlled foreign corporation that is related to
the Company through stock ownership, (C) the Beneficial Owner is not a bank
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whose receipt of interest with respect to the Capital Securities (or on the
Junior Subordinated Debentures) is described in section 881(c)(3)(A) of the
Code and (D) the Beneficial Owner satisfies the statement requirement
(described generally below) set forth in section 871(h) and section 881(c)
of the Code and the regulations thereunder; and
(ii) no withholding of U.S. federal income tax will be required with
respect to any gain realized by a Non-U.S. Holder upon the sale or other
disposition of the Capital Securities (or the Junior Subordinated
Debentures).
To satisfy the requirement referred to in (i)(D) above, the Beneficial
Owner, or a financial institution holding the Capital Securities on behalf
of such owner, must provide, in accordance with specified procedures, to
the Trust or its paying agent, a statement to the effect that the
Beneficial Owner is not a U.S. Holder. Pursuant to current temporary
Treasury regulations, these requirements will be met if (1) the Beneficial
Owner provides his name and address, and certifies, under penalties of
perjury, that it is not a U.S. person (which certification may be made on
an IRS Form W-8 (or successor form)) or (2) a financial institution holding
the Capital Securities on behalf of the Beneficial Owner certifies, under
penalties of perjury, that such statement has been received by it and
furnishes a paying agent with a copy thereof.
If a Non-U.S. Holder cannot satisfy the requirements of the "portfolio
interest" exception described in (i) above, payments of premium, if any,
and interest (including any OID) made to such Non-U.S. Holder will be
subject to a 30% withholding tax unless the Beneficial Owner provides the
Company or its paying agent, as the case may be, with a properly executed
(1) IRS Form 1001 (or successor form) claiming an exemption from, or a
reduction of, such withholding tax under the benefit of a tax treaty or (2)
IRS Form 4224 (or successor form) stating that interest paid with respect
to the Capital Securities (or on the Junior Subordinated Debentures) is not
subject to withholding tax because it is effectively connected with the
Beneficial Owner's conduct of a trade or business in the United States.
If a Non-U.S. Holder is engaged in a trade or business in the United
States and interest with respect to the Capital Securities (or on the
Junior Subordinated Debentures) is effectively connected with the conduct
of such trade or business, the Non-U.S. Holder, although exempt from the
withholding tax discussed above, will be subject to U.S. federal income tax
on such interest income on a net income basis in the same manner as if it
were a U.S. Holder. In addition, if such Non-U.S. Holder is a foreign
corporation, it may be subject to a branch profits tax equal to 30% of its
effectively connected earnings and profits for the taxable year, subject to
adjustments. For this purpose, such interest income would be included in
such foreign corporation's earnings and profits.
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Any gain realized upon the sale or other disposition of the Capital
Securities (or the Junior Subordinated Debentures) generally will not be
subject to U.S. federal income tax unless (1) such gain is effectively
connected with a trade or business in the United States of the Non-U.S.
Holder, (2) in the case of a Non-U.S. Holder who is an individual, such
individual is present in the United States for 183 days or more in the
taxable year of such sale, exchange or retirement, and certain other
conditions are met, and (3) in the case of any gain representing accrued
interest on the Junior Subordinated Debentures, the requirements described
above are not satisfied.
Legislation was introduced in the 104th Congress that would have
denied an interest deduction to the Company for the interest payable on the
Junior Subordinated Debentures. Such legislation also might have caused the
Junior Subordinated Debentures to have been classified as equity (rather
than indebtedness) of the Company for United States federal income tax
purposes and, thus, would have caused the income derived from the Junior
Subordinated Debentures to be characterized as dividend, rather than
interest, income for such purposes. Dividend income is not eligible for the
"portfolio interest" exception described in (i) above. Therefore, if such
legislation had been enacted, income derived by a Non-U.S. Holder on the
Capital Securities may have been subject to the 30% U.S. federal
withholding tax described above, unless a reduction or elimination of such
tax was available under an applicable tax treaty or such dividend income
was effectively connected with a trade or business carried on in the United
States by such Non-U.S. Holder. The 104th Congress adjourned without
enacting such legislation. However, it is possible that legislation could
be enacted in the future that could affect the characterization of income
paid on the Capital Securities (or the Junior Subordinated Debt Securities)
or otherwise adversely affect a Non-U.S. Holder. See "--Proposed Tax Law
Changes."
INFORMATION REPORTING AND BACKUP WITHHOLDING
The amount of interest (or OID, if any) accrued with respect to the
Capital Securities (or the Junior Subordinated Debentures) held of record
by U.S. Holders (other than corporations and other exempt holders) will be
reported annually to such holders and to the IRS. The Property Trustee
currently intends to deliver such reports to holders of record prior to
January 31 following each calendar year. It is anticipated that persons who
hold Capital Securities as nominees for beneficial holders will report the
required tax information to beneficial holders on Form 1099.
"Backup withholding" at a rate of 31% will apply to payments of
interest (or OID, if any) to non-exempt U.S. Holders unless the holder
furnishes its taxpayer identification number in the manner prescribed in
applicable Treasury regulations, certifies that such number is correct,
certifies as to no loss of exemption from backup withholding and meets
certain other conditions.
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No information reporting or backup withholding will be required with
respect to payments made by the Trust or any paying agent to Non-U.S.
Holders if a statement described in (i)(D) under "Non-U.S. Holders" has
been received and the payor does not have actual knowledge that the
beneficial owner is a United States person.
In addition, backup withholding and information reporting will not
apply if payments of the principal, interest, OID or premium on the Junior
Subordinated Debentures are paid or collected by a foreign office of a
custodian, nominee or other foreign agent on behalf of the Beneficial
Owner, or if a foreign office of a broker (as defined in applicable
Treasury regulations) pays the proceeds of the sale of the Capital
Securities to the owner thereof. If, however, such nominee, custodian,
agent or broker is, for U.S. federal income tax purposes, a U.S. person, a
controlled foreign corporation or a foreign person that derives 50% or more
of its gross income for certain periods from the conduct of a trade or
business in the United States, such payments will not be subject to backup
withholding but will be subject to information reporting, unless (1) such
custodian, nominee, agent or broker has documentary evidence in its records
that the Beneficial Owner is not a U.S. person and certain other conditions
are met or (2) the Beneficial Owner otherwise establishes an exemption.
Payment of the proceeds from disposition of Capital Securities to or
through a U.S. office of a broker is subject to information reporting and
backup withholding unless the holder or beneficial owner establishes an
exemption from information reporting and backup withholding.
Any amounts withheld from a holder of the Capital Securities under the
backup withholding rules will be allowed as a refund or a credit against
such holder's U.S. federal income tax liability, provided the required
information is furnished to the IRS.
BOOK-ENTRY ISSUANCE
The New Capital Securities initially will be represented by one or
more Capital Securities in registered, global form (collectively, the
"Global Capital Securities"). The Global Capital Securities will be
deposited upon issuance with the Property Trustee as custodian for The
Depository Trust Company ("DTC"), in New York, New York, and registered in
the name of DTC or its nominee, in each case for credit to an account of a
direct or indirect participant in DTC as described below. Except as set
forth below, the Global Capital Securities may be transferred, in whole and
not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global Capital Securities may not be
exchanged for Capital Securities in certificated form except in the limited
circumstances described below. See "--Exchange of Book-Entry Capital
Securities for Certificated Capital Securities."
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DEPOSITARY PROCEDURES
DTC is a limited-purpose trust company created to hold securities for
its participating organizations (collectively, the "Participants") and to
facilitate the clearance and settlement of transactions in those securities
between Participants through electronic book-entry changes in accounts of
its Participants. The Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations. Access to DTC's system is also available to other entities
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly (collectively, the "Indirect Participants"). Persons who are
not Participants may beneficially own securities held by or on behalf of
DTC only through the Participants or the Indirect Participants. The
ownership interest and transfer of ownership interest of each actual
purchaser of each security held by or on behalf of DTC are recorded on the
records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Company that, pursuant to
procedures established by it, (i) upon deposit of the Global Capital
Securities, DTC will credit the accounts of Participants with portions of
the principal amount of the Global Capital Securities and (ii) ownership of
such interests in the Global Capital Securities will be shown on, and the
transfer of ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the Participants
and the Indirect Participants (with respect to other owners of beneficial
interests in the Global Capital Securities).
Investors in the Global Capital Securities may hold their interests
therein directly through DTC if they are Participants in such system, or
indirectly through organizations which are Participants in such system. The
laws of some states require that certain persons take physical delivery in
certificated form of securities that they own. Consequently, the ability to
transfer beneficial interests in a Global Capital Security to such persons
will be limited to that extent. Because DTC can act only on behalf of
Participants, which in turn act on behalf of Indirect Participants and
certain banks, the ability of a person having beneficial interests in a
Global Capital Security to pledge such interests to persons or entities
that do not participate in the DTC system, or otherwise take actions in
respect of such interests, may be affected by the lack of a physical
certificate evidencing such interests. For certain other restrictions on
the transferability of the Capital Securities, see "--Exchange of
Book-Entry Capital Securities for Certificated Capital Securities."
Except as described below, owners of interests in the Global Capital
Securities will not have Capital Securities registered in their name, will
not receive physical delivery of Capital Securities in certificated form
and will not be considered the registered owners or holders thereof for any
purpose.
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Payments in respect of the Global Capital Security registered in the
name DTC or its nominee will be payable by the Property Trustee to DTC in
its capacity as the registered holder. The Property Trustee will treat the
persons in whose names the Capital Securities, including the Global Capital
Securities, are registered as the owners thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever.
Consequently, neither the Property Trustee nor any agent thereof has or
will have any responsibility or liability for (i) any aspect of DTC's
records or any Participant's or Indirect Participant's records relating to
or payments made on account of beneficial ownership interests in the Global
Capital Securities, or for maintaining, supervising or reviewing any of
DTC's records or any Participant's or Indirect Participant's records
relating to the beneficial ownership interests in the Global Capital
Securities or (ii) any other matter relating to the actions and practices
of DTC or any of its Participants or Indirect Participants. DTC has advised
the Trust and the Company that its current practice, upon receipt of any
payment in respect of securities such as the Capital Securities, is to
credit the accounts of the relevant Participants with the payment on the
payment date unless DTC has reason to believe it will not receive payment
on such payment date. Payments by the Participants and the Indirect
Participants to the beneficial owners of Capital Securities will be
governed by standing instructions and customary practices and will be the
responsibility of the Participants or the Indirect Participants and will
not be the responsibility of DTC, the Property Trustee or the Trust.
Neither the Trust nor the Property Trustee will be liable for any delay by
DTC or any of its Participants in identifying the beneficial owners of the
Capital Securities, and the Trust and the Property Trustee may conclusively
rely on and will be protected in relying on instructions from DTC or its
nominee for all purposes.
Interests in the Global Capital Securities trade in DTC's Same-Day
Funds Settlement System and secondary market trading activity in such
interests will therefore settle in immediately available funds, subject in
all cases to the rules and procedures of DTC and its Participants.
Transfers between Participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same-day funds.
DTC has advised the Trust and the Company that it will take any action
permitted to be taken by a holder of Capital Securities only at the
direction of one or more Participants to whose account with DTC interests
in the Global Capital Securities are credited.
The information in this section concerning DTC and its book-entry
system has been obtained from sources that the Trust and the Company
believe to be reliable, but neither the Trust nor the Company takes
responsibility for the accuracy thereof. Although DTC has agreed to the
foregoing procedures to facilitate transfers of interest in the Global
Capital Securities it is under no obligation to perform or to continue to
perform such procedures, and such procedures may be discontinued at any
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time. Neither the Trust nor the Property Trustee will have any
responsibility for the performance by DTC, its Participants or Indirect
Participants of their respective obligations under the rules and procedures
governing their operations.
EXCHANGE OF BOOK-ENTRY CAPITAL SECURITIES FOR CERTIFICATED CAPITAL
SECURITIES
A Global Capital Security is exchangeable for Capital Securities in
registered certificated form if (i) DTC notifies the Trust that it is
unwilling or unable to continue as depositary for the Global Capital
Security or has ceased to be a clearing agency registered under the
Exchange Act and the Trust thereupon fails to appoint a successor
depositary or (ii) the Company in its sole discretion elects to cause the
issuance of the Capital Securities in certificated form. In addition,
beneficial interests in a Global Capital Security may be exchanged for
certificated Capital Securities upon written request to the Property
Trustee by or on behalf of DTC in accordance with customary procedures
between the depositary and DTC. Certificated Capital Securities delivered
in exchange for any Global Capital Security or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the depositary (in accordance with its
customary procedures).
BENEFIT PLAN CONSIDERATIONS
Before authorizing an investment in Capital Securities (including Old
and New Capital Securities), fiduciaries of pension, profit sharing or
other employee benefit plans subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), should consider, among other
matters, (i) ERISA's fiduciary standards (including its prudence and
diversification requirements), (ii) whether such fiduciaries have authority
to make such investment in Capital Securities under the applicable Plan
investment policies and governing instruments, and (iii) rules under ERISA
and the Code that prohibit Plan fiduciaries from causing a Plan to engage
in a "prohibited transaction."
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as
well as individual retirement accounts and Keogh plans subject to Section
4975 of the Code (also "Plans"), from, among other things, engaging in
certain transactions involving "plan assets" with persons who are "parties
in interest" under ERISA or "disqualified persons" under the Code ("Parties
in Interest") with respect to such Plan. A violation of these "prohibited
transaction" rules may result in an excise tax or other liabilities under
ERISA and/or Section 4975 of the Code for such persons, unless exemptive
relief is available under an applicable statutory or administrative
exemption. Employee benefit plans that are governmental plans (as defined
in Section 3(32) of ERISA), certain church plans (as defined in Section
3(33) of ERISA) and foreign plans (as described in Section 4(b)(5) of
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ERISA) are not subject to the requirements of ERISA or Section 4975 of the
Code.
The Department of Labor ("DOL") has issued a regulation (29 C.F.R.
sec. 2510.3-101) (the "Plan Assets Regulation") concerning the definition
of what constitutes the assets of a Plan. The Plan Assets Regulation
provides that as a general rule, the underlying assets and properties of
corporations, partnerships, trusts and certain other entities in which a
plan makes an "equity" investment will be deemed for purposes of ERISA to
be assets of the investing plan unless certain exceptions apply.
Pursuant to an exception contained in the Plan Assets Regulation, the
assets of a Trust would not be deemed to be "plan assets" of investing
Plans if, immediately after the most recent acquisition of any equity
interest in the Trust, less than 25% of the value of each class of equity
interest in the Trust were held by Plans, other employee benefit plans not
subject to ERISA or Section 4975 of the Code (such as governmental, church
and foreign plans) and entities holding assets deemed to be "plan assets"
of any Plan (collectively, "Benefit Plan Investors"). No assurance can be
given that the value of the Old or New Capital Securities of a Trust that
are held by Benefit Plan Investors will be less than 25% of the total
value of such securities of the Trust, and no monitoring or other measures
will be taken with respect to the satisfaction of the conditions to this
exception. All of the Common Securities will be purchased and held directly
by the Company.
It is possible that New Capital Securities received as the result of a
Exchange Offer may qualify as "publicly offered securities" under the Plan
Assets Regulation if, in addition to being offered pursuant to any
effective registration statement, they are subsequently registered under
the Exchange Act, are "widely held" and are "freely transferable" at the
time of the Exchange Offer. Under the Plan Assets Regulation, a class of
securities is "widely held" only if it is a class of securities owned by
100 or more investors independent of the issuer thereof and each other.
Although it is possible that at the time of the Exchange Offer the "widely
held" requirement will be satisfied, no assurances can be given that will
be true. If the New Capital Securities are "publicly offered securities" at
the time of the Exchange Offer, the assets of the Trusts would not be
assets of the Plans holding New Capital Securities as of such time.
There can be no assurance that any of the exceptions set forth in the
Plan Assets Regulation will apply to the Capital Securities and, as a
result, an investing Plan's assets could be considered to include an
undivided interest in the Junior Subordinated Debentures held by the Trust.
In the event that assets of the Trust are considered assets of an investing
Plan, the Trustees, the Company and/or other persons, in providing services
with respect to the Junior Subordinated Debentures, may be considered
fiduciaries to such Plan and subject to the fiduciary responsibility
provisions of Title I of ERISA. In addition, certain transactions involving
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the Trust and/or Capital Securities could be deemed to constitute direct or
indirect prohibited transactions under ERISA and Section 4975 of the Code
with respect to a Plan. For example, if the Company is a Party in Interest
with respect to an investing Plan (either directly or by reason of its
ownership of the Banks or other subsidiaries), extensions of credit between
the Company and the Trust (as represented by the Junior Subordinated
Debentures and the Guarantee) would likely be prohibited by Section
406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the Code.
The DOL has issued five prohibited transaction class exemptions
("PTCEs") that may provide exemptive relief for direct or indirect
prohibited transactions resulting from the purchase or holding of the
Capital Securities, assuming that assets of the Trust were deemed to be
"plan assets" of Plans investing in the Trust (see above). Those class
exemptions are PTCE 96-23 (for certain transactions determined by in-house
asset managers), PTCE 91-38 (for certain transactions involving bank
collective investment funds), PTCE 95-60 (for certain transactions
involving insurance company general accounts), PTCE 90-1 (for certain
transactions involving insurance company pooled separate accounts) and PTCE
84-14 (for certain transactions determined by independent qualified
professional asset managers).
Because of ERISA's prohibitions and those of Section 4975 of the Code,
Capital Securities may not be purchased or held by any Plan, any entity
whose underlying assets include "plan assets" by reason of any Plan's
investment in the entity (a "Plan Asset Entity") or any person having "plan
assets" of any Plan, unless such purchase or holding is covered by the
exemptive relief provided by PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or
another applicable exemption. If a purchaser or holder of Capital
Securities that is a Plan or a Plan Asset Entity elects to rely on an
exemption other than PTCE 96-23, 95-60, 91-38, 90-1 or 84-14, the Company
and the Trust may require a satisfactory opinion of counsel or other
evidence with respect to the availability of such exemption for such
purchase and holding. Any purchaser or holder of the Capital Securities or
any interest therein that is a Plan or a Plan Asset Entity and is
purchasing such securities on behalf of or with "plan assets" is deemed to
have represented by its purchase and holding thereof that (a) the purchase
and holding of the Capital Securities is covered by the exemptive relief
provided by PTCE 96-23, 95-60, 91-38, 90-1, or 84-14 or another applicable
exemption, (b) the Company is not a "Fiduciary," within the meaning of
Section 3(21) of ERISA and the regulations thereunder with respect to such
person's interest in the Capital Securities or the Junior Subordinated
Debentures and (c) in purchasing the Capital Securities, such person
approves the purchase and holding of the Junior Subordinated Debentures and
the appointment and retention of the Property Trustee.
Any Plans or other entities whose assets include Plan assets subject
to ERISA or Section 4975 of the Code proposing to acquire Capital
Securities should consult with their own counsel.
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Governmental Plans and certain church plans are not subject to ERISA,
and are also not subject to the prohibited transaction provisions of
Section 4975 of the Code. However, state laws or regulations governing the
investment and management of the assets of such plans may contain fiduciary
and prohibited transaction provisions similar to those under ERISA and the
Code discussed above. Accordingly, fiduciaries of governmental and church
plans, in consultation with their advisers, should consider the impact of
their respective state laws on investments in Capital Securities, and the
considerations discussed above, to the extent applicable.
PLAN OF DISTRIBUTION
Any broker-dealer who holds Securities that are Transfer Restricted
Securities (as defined in the Registration Rights Agreement) 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 this Prospectus, on the terms described below.
Each broker-dealer that receives New Capital Securities for its own
account in connection with the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such New Capital
Securities. This Prospectus, as it may be amended or supplemented from
time to time, may be used by Participating Broker-Dealers during the period
referred to below in connection with resales of New Capital Securities
received in exchange for Old Capital Securities if such Old Capital
Securities were acquired by such Participating Broker-Dealers for their own
accounts as a result of market-making activities or other trading
activities. The Company and the Trust have agreed that this Prospectus, as
it may be amended or supplemented from time to time, may be used by a
Participating Broker-Dealer in connection with resales of such New Capital
Securities for a period ending 180 days after the effective date of the
Registration Statement (subject to extension under certain limited
circumstances described herein) or, if earlier, when all such New Capital
Securities have been disposed of by such Participating Broker-Dealer.
However, a Participating Broker-Dealer who intends to use this Prospectus
in connection with the resale of New Capital Securities received in
exchange for Old Capital Securities pursuant to the Exchange Offer must
notify the Company or the Trust, or cause the Company or the Trust to be
notified, on or prior to the Expiration Date, that it is a Participating
Broker-Dealer. Such notice may be given in the space provided for that
purpose in the Letter of Transmittal or may be delivered to the Exchange
Agent at one of its addresses set forth herein under "The Exchange
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Offer--The Exchange Agent." See "The Exchange Offer--Resales of New
Capital Securities."
Neither the Company nor the Trust will receive any cash proceeds from
the issuance of the New Capital Securities in the Exchange Offer. New
Capital Securities received by broker-dealers for their own accounts in
connection with the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Capital Securities
or a combination of such methods of resale, at market prices prevailing at
the time of resale, at prices related to such prevailing market prices or
at negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the
form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such New Capital Securities.
Any broker-dealer that resells New Capital Securities that were
received by it for its own account in connection with the Exchange Offer
and any broker or dealer that participates in a distribution of such New
Capital Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act, and any profit on any such resale of New Capital
Securities and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the New
Capital Securities will be passed upon for the Trust by Richards, Layton &
Finger, Wilmington, Delaware. The validity of the New Junior Subordinated
Debentures and the Guarantee will be passed upon for the Company and the
Trust by Warner Norcross & Judd LLP. Warner Norcross & Judd LLP and
certain members of the firm are indebted to, and have banking and other
trust relationships with, certain affiliated banks of the Company. As of
April 25, 1997, partners of and attorneys employed by Warner Norcross &
Judd LLP were the beneficial owners of 218,315 shares of the Company's
common stock, which had an aggregate market value of $10,525,013 on that
date. Shares reported as beneficially owned include all shares as to which
such persons have the direct or indirect, sole or shared, power to direct
voting or disposition, including personal shares as well as shares held in
fiduciary capacities. Warner Norcross & Judd LLP will rely as to certain
matters of Delaware law on the opinion of Richards, Layton & Finger.
Certain United States federal income taxation matters also will be passed
upon for the Company and the Trust by Warner Norcross & Judd LLP, as tax
counsel to the Company.
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INDEPENDENT AUDITORS
The consolidated financial statements incorporated herein by reference
from the Company's Annual Report on Form 10-K for the year ended December
31, 1996 have been audited by Arthur Andersen LLP, independent auditors, as
stated in their report, which is incorporated herein by reference.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Sections 561-571 of the Michigan Business Corporation Act (the
"MBCA"), directors and officers of a Michigan corporation may be entitled
to indemnification by the corporation against judgments, expenses, fines
and amounts paid by the director or officer in settlement of claims brought
against them by third persons or by or in the right of the corporation if
those directors and officers acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interests of the corporation
or its shareholders.
The Company is obligated under its Restated Articles of Incorporation
to indemnify its directors and executive officers to the full extent
permitted under the MBCA. The Company may similarly indemnify persons who
are not directors or executive officers to the extent authorized by the
board of directors of the Company.
The MBCA provides for indemnification of directors and officers if
they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the Company or its shareholders
(and, if a criminal proceeding, if they had no reasonable cause to believe
their conduct was unlawful) against: (i) expenses (including attorneys'
fees), judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred in connection with any threatened, pending or
completed action, suit or proceeding (other than an action by or in the
right of the Company) arising out of a position with the Company (or with
some other entity at the Company's request); and (ii) expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending or completed action,
suit or proceeding by or in the right of the Company, unless the director
or officer is found liable to the Company, provided that an appropriate
court could determine that he or she is nevertheless fairly and reasonably
entitled to indemnity for reasonable expenses incurred. The MBCA requires
indemnification for expenses to the extent that a director or officer is
successful in defending against any such action, suit or proceeding, and
otherwise requires in general that the indemnification provided for in (i)
and (ii) above be made only on a determination that the director or officer
met the applicable standard of conduct by a majority vote of a quorum of
the board of directors who were not parties or threatened to be made
parties to the action, suit or proceeding, by a majority vote of a
committee of not less than two disinterested directors, by independent
legal counsel, by all independent directors not parties or threatened to be
made parties to the action, suit or proceeding, or by the shareholders.
In certain circumstances, the MBCA further permits advances to cover
such expenses before a final determination that indemnification is
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permissible or required, upon receipt of a written affirmation by the
director or officer of his or her good faith belief that he or she has met
the applicable standard of conduct and an undertaking, which need not be
secured, by or on behalf of the director or officer to repay such amounts
if it shall ultimately be determined that he or she has not met the
applicable standard of conduct.
Indemnification under the MBCA is not exclusive of other rights to
indemnification to which a person may be entitled under the Company's
Restated Articles of Incorporation, Bylaws or a contractual agreement.
However, the total amount of expenses advanced or indemnified from all
sources may not exceed the amount of actual expenses incurred by the person
seeking indemnification or advancement of expenses. The indemnification
provided for under the MBCA continues as to a person who ceases to be a
director or executive officer.
The MBCA permits the Company to purchase insurance on behalf of its
directors and officers against liabilities arising out of their positions
with the Company, whether or not such liabilities would be within the above
indemnification provisions. Pursuant to this authority, the Company
maintains such insurance on behalf of its directors and officers.
The Company has entered into indemnity agreements with its directors.
The agreements provide that the Company will indemnify the director,
subject to certain limitations, for expenses and costs, including the
satisfaction of a judgment, fine or penalty incurred in, or in any amount
paid in settlement of, any proceeding, including a proceeding brought by or
in the name of the Company (such as a shareholder derivative suit), brought
by reason of the fact that the indemnitee was serving as a director,
officer, employee, agent or fiduciary of the Company or by reason of any
action taken by the indemnitee while serving as a director, officer,
employee, agent or fiduciary of the Company, or by reason of the fact that
the indemnitee was serving at the request of the Company in a similar
capacity with another entity, if such expenses and costs may be indemnified
under the MBCA. In accordance with the Company's Restated Articles and
Bylaws, the agreements are designed to provide the maximum protection
allowed under federal and Michigan law. Indemnification is dependent upon
the director meeting the standards of conduct set forth in the indemnity
agreements.
The Trust has entered into similar agreements with its Regular
Trustees. Under these agreements, the Company agrees to indemnify the
Regular Trustees against expenses and costs, including the satisfaction of
a judgment, fine or penalty incurred in, or in any amount paid in
settlement of, any proceeding, including a proceeding brought by or in the
name of the Trust, brought by reason of the fact that the indemnitee was
serving as a Regular Trustee or agent of the Trust or by reason of any
action taken by the indemnitee while serving as a Regular Trustee or agent
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of the Trust, if such expenses and costs may be indemnified under federal,
Michigan and Delaware law. The indemnification provided by these
agreements is in addition to the indemnification provided to the Regular
Trustees under the Declaration of Trust.
Under the Declaration of Trust, the Company will agree to indemnify
each "Debenture Issuer Indemnified Person" (which is defined as including
the Regular Trustees; any affiliate of a Regular Trustee; any officer,
director, shareholder, member, partner, employee, representative or agent
of a Regular Trustee or any affiliate thereof; or any officer, employee or
agent of the Trust or the Trust's affiliates) against costs and expenses
incurred in connection with actions or proceedings in which the Debenture
Issuer Indemnified Person is a party or threatened to be made a party, if
the indemnitee acted in good faith and in a manner he or she reasonably
believed to be in the best interests of the Trust, and with respect to a
criminal proceeding, had no reasonable cause to believe that his or her
conduct was unlawful. However, no indemnification is allowed in actions by
or in the name of the Trust if the indemnitee is adjudged liable to the
Trust (unless a court determined otherwise).
Furthermore, under the Declaration of Trust, the Company agrees to
indemnify each "Fiduciary Indemnified Person" (which is defined as
including the Property Trustee; the Delaware Trustee; any affiliate of the
Property Trustee and the Delaware Trustee; and any officer, director,
shareholder, member, partner, employee, representative, custodian, nominee
or agent of the Property Trustee and the Delaware Trustee) 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 under the Declaration of Trust, 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 under the Declaration of Trust.
Under the Indenture, the Company agrees to indemnify each of the
Indenture Trustee, any predecessor Indenture 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 Indenture Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the Trust, including the costs and expenses of defending it against any
claim or liability in connection with the exercise or performance of any of
its powers or duties under the Indenture. This indemnity obligation of the
Company will constitute additional indebtedness under the Indenture and
will survive the satisfaction and discharge of the Indenture. As security
for the performance of this indemnity obligation of the Company, the
Indenture Trustee will have a lien prior to the Junior Subordinated
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Debentures 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 Junior Subordinated
Debentures.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS. The following exhibits are filed as part of this
Registration Statement:
NUMBER EXHIBIT
3.1 Restated Articles of Incorporation of Old Kent Financial
Corporation. Previously filed as Exhibit 3(a) to Old Kent's Form
10-Q Quarterly Report for the quarter ended March 31, 1993. Here
incorporated by reference.
3.2 Bylaws of Old Kent Financial Corporation. Previously filed as
Exhibit 3(b) to Old Kent's Form 8-K filed February 23, 1996. Here
incorporated by reference.
3.3 Certificate of Trust of Old Kent Capital Trust I, dated as of
January 27, 1997. See Exhibit 4.6.
3.4 Amended and Restated Declaration of Trust, dated as of January 31,
1997 among the Company; the Trust; Bankers Trust Company, as
Property Trustee; Bankers Trust (Delaware), as Delaware Trustee;
and the Regular Trustees named therein. See Exhibit 4.2.
4.1 Indenture, dated as of January 31, 1997, between the Company and
Bankers Trust Company, as Debenture Trustee
4.2 Amended and Restated Declaration of Trust, dated as of January
31, 1997 among the Company; the Trust; The Bankers Trust Company,
as Property Trustee; Bankers Trust (Delaware), as Delaware
Trustee; and the Regular Trustees named therein
4.3 Form of Guarantee Agreement to be entered into by the Company and
Bankers Trust Company, as Guarantee Trustee, and registered under
the Securities Act of 1933, as amended
4.4 Registration Rights Agreement, dated January 31, 1997, between
the Trust, the Company and Lehman Brothers Inc.
4.5 Form of Junior Subordinated Debenture
4.6 Certificate of Trust of Old Kent Capital Trust I, dated as of
January 27, 1997
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4.7 Form of Capital Security Certificate
4.8 All instruments defining the rights of holders of long-term debt
of Old Kent Financial Corporation and its subsidiaries (not filed
pursuant to clause 4(iii) of Item 601(b) of Regulation S-K; to be
furnished upon request of the Commission)
5.1 Opinion of Warner Norcross & Judd LLP, General Counsel to
the Company, as to legality of the Junior Subordinated Debentures
and the Guarantee to be issued by the Company
5.2 Opinion of special Delaware counsel as to the legality of the
Capital Securities to be issued by the Trust
8.1 Form of opinion of Warner Norcross & Judd LLP as to certain
federal income tax matters<F*>
23.1 Consent of Arthur Andersen LLP
23.2 Consent of special Delaware counsel (included in Exhibit 5.2)
23.3 Consent of Warner Norcross & Judd LLP (included in Exhibit 5.1
and Exhibit 8.1)
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility of The Bankers Trust Company to
act as trustee under the Indenture, as trustee under the Amended
and Restated Declaration of Trust and as trustee under the
Guarantee for the benefit of the holders of Capital Securities
99.1 Form of Letter of Transmittal and instructions thereto
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
_____________________________
<F*> Signed opinion to be filed by amendment.
(b) FINANCIAL STATEMENT SCHEDULES. Financial statement schedules
have been omitted because they are not applicable.
(c) REPORTS, OPINIONS AND APPRAISALS. Not applicable.
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ITEM 22. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(2) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of the
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Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) (a) The undersigned registrant hereby undertakes as
follows: that prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a part
of this registration statement by any person or party who is
deemed to be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such reoffering prospectus will
contain the information called for by the applicable registration
form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the
other items of the applicable form.
(b) The registrant undertakes that every prospectus (i)
that is filed pursuant to the immediately preceding paragraph, or
(ii) that purports to meet the requirements of Section 10(a)(3)
of the Securities Act of 1933 and is used in connection with an
offering of securities subject to Rule 415, will be filed as a
part of an amendment to the registration statement and will not
be used until such amendment is effective, and that, for purposes
of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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(5) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
Prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one
business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date
of the registration statement through the date of responding to the
request.
(6) The undersigned registrant hereby undertakes to supply by means
of a post-effective amendment all information concerning a transaction, and
the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Grand
Rapids, State of Michigan, on April 29, 1997.
OLD KENT FINANCIAL CORPORATION
(Registrant)
By /s/B.P. Sherwood, III
B.P. Sherwood, III
Vice Chairman of the Board and Treasurer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
April 29, 1997 /s/Richard L. Antonini*
Richard L. Antonini
Director
April 29, 1997 /s/John M. Bissell*
John M. Bissell
Director
April 29, 1997 /s/John D. Boyles*
John D. Boyles
Director
April 29, 1997 /s/William P. Crawford*
William P. Crawford
Director
April 29, 1997 /s/Richard M. DeVos, Jr*.
Richard M. DeVos, Jr.
Director
April 29, 1997 /s/William G. Gonzalez*
William G. Gonzalez
Director
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<PAGE>
April 29, 1997 /s/James P. Hackett, Sr.*
James P. Hackett, Sr.
Director
April 29, 1997 /s/Erina Hanka*
Erina Hanka
Director
April 29, 1997 /s/Earl D. Holton*
Earl D. Holton
Director
April 29, 1997 /s/Robert L. Hooker*
Robert L. Hooker
Director
April 29, 1997 /s/Michael J. Jandernoa*
Michael J. Jandernoa
Director
April 29, 1997 /s/Fred P. Keller*
Fred P. Keller
Director
April 29, 1997 /s/John P. Keller*
John P. Keller
Director
April 29, 1997 /s/Hendrik G. Meijer*
Hendrik G. Meijer
Director
April 29, 1997 /s/William U. Parfet*
William U. Parfet
Director
April 29, 1997 /s/Percy A. Pierre*
Percy A. Pierre
Director
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<PAGE>
April 29, 1997 /s/Patrick M. Quinn*
Patrick M. Quinn
Director
April 29, 1997 /s/Robert L. Sadler*
Robert L. Sadler
Vice Chairman of the Board and
Director
April 29, 1997 /s/Marilyn J. Schlack*
Marilyn J. Schlack
Director
April 29, 1997 /s/Peter F. Secchia*
Peter F. Secchia
Director
April 29, 1997 /s/B.P. Sherwood, III*
B.P. Sherwood, III
Vice Chairman of the Board and
Treasurer and Director
(Principal Financial Officer)
April 29, 1997 /s/David J. Wagner*
David J. Wagner
Chairman, President, Chief
Executive Officer and
Director (Principal Executive
Officer)
April 29, 1997 /s/Margaret Sellers Walker*
Margaret Sellers Walker
Director
April 29, 1997 /s/Albert T. Potas
Albert T. Potas
Senior Vice President (Principal
Accounting Officer)
*By /s/Albert T. Potas
Albert T. Potas
Attorney-In-Fact
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Grand
Rapids, State of Michigan, on April 29, 1997.
OLD KENT CAPITAL TRUST I
(Registrant)
By /S/ MARY E. TUUK*
Mary E. Tuuk
Regular Trustee
By /S/ ALBERT T. POTAS
Albert T. Potas
Regular Trustee
By /S/ THOMAS E. POWELL*
Thomas E. Powell
Regular Trustee
*By /S/ ALBERT T. POTAS
Albert T. Potas
Attorney-In-Fact
101
EXHIBIT INDEX
NUMBER EXHIBIT
3.1 Restated Articles of Incorporation of Old Kent Financial
Corporation. Previously filed as Exhibit 3(a) to Old Kent's Form
10-Q Quarterly Report for the quarter ended March 31, 1993. Here
incorporated by reference.
3.2 Bylaws of Old Kent Financial Corporation. Previously filed as
Exhibit 3(b) to Old Kent's Form 8-K filed February 23, 1996. Here
incorporated by reference.
3.3 Certificate of Trust of Old Kent Capital Trust I, dated as of
January 27, 1997. See Exhibit 4.6.
3.4 Amended and Restated Declaration of Trust, dated as of January 31,
1997 among the Company; the Trust; Bankers Trust Company, as
Property Trustee; Bankers Trust (Delaware), as Delaware Trustee;
and the Regular Trustees named therein. See Exhibit 4.2.
4.1 Indenture, dated as of January 31, 1997, between the Company and
Bankers Trust Company, as Debenture Trustee
4.2 Amended and Restated Declaration of Trust, dated as of January
31, 1997 among the Company; the Trust; The Bankers Trust Company,
as Property Trustee; Bankers Trust (Delaware), as Delaware
Trustee; and the Regular Trustees named therein
4.3 Form of Guarantee Agreement to be entered into by the Company and
Bankers Trust Company, as Guarantee Trustee, and registered under
the Securities Act of 1933, as amended
4.4 Registration Rights Agreement, dated January 31, 1997, between
the Trust, the Company and Lehman Brothers Inc.
4.5 Form of Junior Subordinated Debenture
4.6 Certificate of Trust of Old Kent Capital Trust I, dated as of
January 27, 1997
4.7 Form of Capital Security Certificate
4.8 All instruments defining the rights of holders of long-term debt
of Old Kent Financial Corporation and its subsidiaries (not filed
pursuant to clause 4(iii) of Item 601(b) of Regulation S-K; to be
furnished upon request of the Commission)
102
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5.1 Opinion of Warner Norcross & Judd LLP, General Counsel to
the Company, as to legality of the Junior Subordinated Debentures
and the Guarantee to be issued by the Company
5.2 Opinion of special Delaware counsel as to the legality of the
Capital Securities to be issued by the Trust
8.1 Form of opinion of Warner Norcross & Judd LLP as to certain
federal income tax matters<F*>
23.1 Consent of Arthur Andersen LLP
23.2 Consent of special Delaware counsel (included in Exhibit 5.2)
23.3 Consent of Warner Norcross & Judd LLP (included in Exhibit 5.1
and Exhibit 8.1)
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility of The Bankers Trust Company to
act as trustee under the Indenture, as trustee under the Amended
and Restated Declaration of Trust and as trustee under the
Guarantee for the benefit of the holders of Capital Securities
99.1 Form of Letter of Transmittal and instructions thereto
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
_____________________________
<F*> Signed opinion to be filed by amendment.
103
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EXHIBIT 4.1
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
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
-i-
<PAGE>
PAGE
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
SECTION 105. Notices, Etc. to Trustee and the Company . . . . . . . . . 12
-ii-
<PAGE>
PAGE
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
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . 21
SECTION 311. Right of Set-off . . . . . . . . . . . . . . . . . . . . . 22
SECTION 312. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . 22
-iii-
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PAGE
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
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
-iv-
<PAGE>
PAGE
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
SECTION 613. Preferential Collection of Claims Against Company. . . . . 44
-v-
<PAGE>
PAGE
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
SECTION 1003. Money for Security Payments to be Held in Trust . . . . . 50
-vi-
<PAGE>
PAGE
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
SECTION 1203. Election to Redeem; Notice to Trustee . . . . . . . . . . 60
-vii-
<PAGE>
PAGE
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.
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"Corporate Trust Office" means the principal office of the
Trustee in the City of New York, at which at any particular time its
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.
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5
"Guarantee" means the Guarantee Agreement, dated as of January
31, 1997, made by the Company in favor of Bankers Trust Company as trustee
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.
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6
"Initial Purchaser" means Lehman Brothers Inc.
"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
<PAGE>
7
Determination Date. If at least two quotations are
provided, LIBOR will be the arithmetic mean (if necessary
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
<PAGE>
8
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:
(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.
<PAGE>
9
"Paying Agent" means any Person authorized by the Company to pay
the principal of or interest on any Securities on behalf of the Company.
"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.
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10
"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 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.
<PAGE>
11
"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.
"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.
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12
"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
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
<PAGE>
13
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
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
<PAGE>
14
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
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.
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15
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
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.
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16
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.
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.
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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
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.
<PAGE>
18
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
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
<PAGE>
19
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
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
<PAGE>
20
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.
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
<PAGE>
21
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
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
<PAGE>
22
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
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
<PAGE>
23
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.
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
<PAGE>
24
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
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.
<PAGE>
25
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
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
<PAGE>
26
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
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."
<PAGE>
27
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
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
<PAGE>
28
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
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.
<PAGE>
29
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
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
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30
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
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.
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31
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
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,
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32
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
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
<PAGE>
33
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
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
<PAGE>
34
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.
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.
<PAGE>
35
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
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
<PAGE>
36
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
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.
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37
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
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
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38
(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.
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;
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39
(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
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
<PAGE>
40
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
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
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41
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
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.
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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
(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
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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
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.
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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
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
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(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
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.
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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.
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.
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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;
(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;
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(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.
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.
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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.
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.
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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
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.
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(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
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
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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
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).
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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
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
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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).
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;
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(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.
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
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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
(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,
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(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
(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.
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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
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
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59
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.
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.
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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
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.
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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.
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.
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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
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
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63
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
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
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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
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
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65
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,
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
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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
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,
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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
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,
<PAGE>
68
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
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
<PAGE>
69
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
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
<PAGE>
70
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
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.
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71
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.
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
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72
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.
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
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73
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.
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:/S/ MARY E. TUUK
Name: Mary E. Tuuk
Title: Vice President and Secretary
BANKERS TRUST COMPANY, as Trustee
By:/S/ TERENCE RAWLINS
Name: Terence Rawlins
Title: Assistant Treasurer
<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
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<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.
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<PAGE>
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated: ________, __
OLD KENT FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
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<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
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<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
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<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: ________ __, ____
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<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
-8-
<PAGE>
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: _____________________________
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 4.2
- --------------------------------------------------------------------------
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
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . 5
-i-
<PAGE>
PAGE
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
Trustee" or "Trustees. . . . . . . . . . . . . . . . . . . . . . . . 9
Trustees' Authorization Certificate. . . . . . . . . . . . . . . . . 9
-ii-
<PAGE>
PAGE
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
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
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<PAGE>
PAGE
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
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
-iv-
<PAGE>
PAGE
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:
<PAGE>
2
(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;
(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
<PAGE>
3
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.
"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.
<PAGE>
4
"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.
"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).
<PAGE>
5
"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
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).
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6
"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.
"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).
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7
"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.
"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
<PAGE>
8
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,
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.
<PAGE>
9
"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
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
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10
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
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.
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11
(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
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.
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12
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
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
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13
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 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
<PAGE>
14
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
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
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15
(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.
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.
<PAGE>
16
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.
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17
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;
<PAGE>
18
(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
(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;
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19
(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;
(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
<PAGE>
20
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.
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
<PAGE>
21
(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
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
<PAGE>
22
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).
(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
<PAGE>
23
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
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.
<PAGE>
24
(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.
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:
<PAGE>
25
(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
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
<PAGE>
26
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
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,
<PAGE>
27
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
(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
<PAGE>
28
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
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
<PAGE>
29
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
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.
<PAGE>
30
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.
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:
<PAGE>
31
(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;
(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
<PAGE>
32
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.
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:
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33
(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.
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
<PAGE>
34
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);
(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
<PAGE>
35
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.
ARTICLE 6
TRUSTEES
Section 6.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
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(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:
(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
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(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.
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.
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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
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to
the holders of the Securities; and
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(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
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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
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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").
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
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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
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.
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(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.
(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
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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
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
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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
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.
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(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
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.
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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
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.
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(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
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
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49
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.
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
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50
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.
(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
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.
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52
(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
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.
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53
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
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.
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54
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.
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.
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55
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
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:
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56
"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."
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).
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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
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
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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
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
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59
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
for an equivalent beneficial interest in such Restricted Global Security.
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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.
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(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
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(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.
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(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(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.
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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
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
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(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,
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.
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(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
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
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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,
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.
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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
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.
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(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.
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
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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:
(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
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(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
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.
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(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.
(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.
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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 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
<PAGE>
74
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.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property
Trustee.
<PAGE>
75
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
(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,
<PAGE>
76
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
(e) if given to any Holder, at the address set forth on the
books and records of the Trust.
<PAGE>
77
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>
78
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>
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: /S/ MARY E. TUUK
Name: Mary E. Tuuk
Title: Vice President and Secretary
BANKERS TRUST COMPANY,
as Property Trustee
By: /S/ TERENCE RAWLINS
Name: Terence Rawlins
Title: Assistant Treasurer
BANKERS TRUST (DELAWARE),
as Delaware Trustee
By: /S/ M. LISA WILKINS
Name: M. Lisa Wilkins
Title: Assistant Secretary
ALBERT T. POTAS, as Regular Trustee
/S/ ALBERT T. POTAS
THOMAS E. POWELL, as Regular Trustee
/S/ THOMAS E. POWELL
MARY E. TUUK, as Regular Trustee
/S/ MARY E. TUUK
<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
<PAGE>
2
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.
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
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>
4
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>
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>
0
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 4.3
- ---------------------------------------------------------------------------
GUARANTEE AGREEMENT
OLD KENT CAPITAL TRUST I
DATED AS OF _______________, 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 . . . . . . . . . . . . 2
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . 5
SECTION 2.3 Reports by Guarantee Trustee . . . . . . . . . . . . . 5
SECTION 2.4 Periodic Reports to Guarantee Trustee. . . . . . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . 6
SECTION 2.6 Guarantee Event of Default; Waiver . . . . . . . . . . 6
SECTION 2.7 Guarantee Event of Default; Notice . . . . . . . . . . 6
SECTION 2.8 Conflicting Interests. . . . . . . . . . . . . . . . . 6
SECTION 2.9 Disclosure of Information. . . . . . . . . . . . . . . 6
SECTION 2.10 Guarantee Trustee May File Proofs of Claim . . . . . . 7
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee . . . . . . . . 7
SECTION 3.2 Certain Rights of Guarantee Trustee. . . . . . . . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance of
Guarantee. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility . . . . . . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
Trustee. . . . . . . . . . . . . . . . . . . . . . . . 11
-i-
<PAGE>
PAGE
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.2 Waiver of Notice and Demand. . . . . . . . . . . . . . 13
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . 13
SECTION 5.4 Rights of Holders. . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . 15
SECTION 5.6 Subrogation. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Independent Obligations. . . . . . . . . . . . . . . . 15
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . . 15
SECTION 6.2 Ranking. . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 7
TERMINATION
SECTION 7.1 Termination. . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8.2 Indemnification. . . . . . . . . . . . . . . . . . . . 17
SECTION 8.3 Compensation . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . . 18
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.4 Benefit. . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . 19
-ii-
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of
_______________, 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 issued on January 31, 1997 (i) $100,000,000 aggregate liquidation
amount of capital securities (liquidation amount $1,000 per capital
security), designated the Floating Rate Subordinated Capital Income
Securities (the "Old Capital Securities") and (ii) $3,092,784 aggregate
liquidation amount of common securities, having a liquidation amount of
$1,000 per common security, designated the Floating Rate Common Securities
(the "Common Securities");
WHEREAS, the Old Capital Securities and the Common Securities
were guaranteed by the Guarantor to the extent and on the terms and
conditions set forth in the Guarantee Agreement, dated as of January 31,
1997 (the "Old Guarantee"), from the Guarantor to Guarantee Trustee for the
benefit of Holders of the Old Capital Securities and the Common Securities;
WHEREAS, pursuant to the Registration Rights Agreement (as
defined in the Declaration), the Trust has offered to exchange up to
$100,000,000 aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities, liquidation amount $1,000 per capital security
(the "New Capital Securities" and, together with the Old Capital
Securities, the "Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, pursuant to the Registration Rights Agreement (as
defined in the Declaration), the Guarantor and the Guarantee Trustee wish
to exchange the Old Guarantee for this Guarantee, which is substantially
the same as the Old Guarantee except that it has been registered under the
Securities Act and qualified under the Trust Indenture Act and does not
contain restrictions on transfer, and which is for the benefit of the
Holders of New Capital Securities, Old Capital Securities not exchanged for
New Capital Securities and the Common Securities (collectively, the
"Securities").
WHEREAS, as incentive for the Holders to retain the Capital
Securities (which the Guarantor agrees will benefit it), the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth
<PAGE>
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 premises, 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;
(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
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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.
"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
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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,
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
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(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.
"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
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(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
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.
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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
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.
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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.
(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
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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
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,
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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
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,
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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
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.
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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.
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
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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 resigning 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.
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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
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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.
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<PAGE>
(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.
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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.
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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
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<PAGE>
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:
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(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.
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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:
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<PAGE>
EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 31, 1997
Among
OLD KENT CAPITAL TRUST I
and
LEHMAN BROTHERS INC.
as Initial Purchaser
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<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
<PAGE>
3
amended or supplemented from time to time in accordance with the terms
thereof.
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.
<PAGE>
4
SHELF REGISTRATION STATEMENT: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939, as amended.
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
<PAGE>
5
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
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
<PAGE>
6
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.
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
<PAGE>
7
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:
(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.
<PAGE>
8
(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
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
<PAGE>
9
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.
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:
<PAGE>
10
(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.
(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
<PAGE>
11
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
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:
<PAGE>
12
(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
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
<PAGE>
13
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;
(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;
<PAGE>
14
(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.
(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
<PAGE>
15
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
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
<PAGE>
16
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
<PAGE>
17
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
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
<PAGE>
18
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;
(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
<PAGE>
19
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
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
<PAGE>
20
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
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
<PAGE>
21
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
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
<PAGE>
22
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
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
<PAGE>
23
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.
(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.
<PAGE>
24
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.
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.
<PAGE>
25
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
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.
<PAGE>
26
(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
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.
<PAGE>
27
(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>
28
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
OLD KENT FINANCIAL CORPORATION
By:/S/ MARY E. TUUK
Name: Mary E. Tuuk
Title: Vice President and Secretary
OLD KENT CAPITAL TRUST I
By:/S/ MARY E. TUUK
Name: Mary E. Tuuk
Title: Regular Trustee
Agreed and Accepted
as of the date hereof
LEHMAN BROTHERS INC.
By:/S/ ROBERT LIEBERBERG
Name: Robert Lieberberg
Title: Managing Director
<PAGE>
EXHIBIT 4.5
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 _____________, 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 __________,
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 fifteenth day
<PAGE>
preceding such Interest Payment Date. Any 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, 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
<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.
<PAGE>
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated: ________, 1997
OLD KENT FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
<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
compliance by the Company with certain conditions set forth in the
Indenture.
<PAGE>
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
(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
<PAGE>
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: ________ __, 1997
<PAGE>
EXHIBIT 4.6
CERTIFICATE OF TRUST
OF
OLD KENT CAPITAL TRUST I
THIS Certificate of Trust of Old Kent Capital Trust I (the
"Trust"), dated as of January 27, 1997, is being duly executed and filed by
the undersigned, as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. C. <Section>3801, ET. SEQ.).
1. NAME. The name of the business trust formed hereby is Old
Kent Capital Trust I.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware are Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550,
Wilmington, Delaware 19801.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the
Trust, has executed this Certificate of Trust as of the date first-above
written.
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By: /S/ JAMES H. STALLKAMP
Name: James H. Stallkamp
Title: President
<PAGE>
EXHIBIT 4.7
This Capital Security is a Global Security within the meaning of
the Declaration hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation ("DTC"), or a nominee
of DTC. 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 DTC to a nominee of
DTC, or by a nominee of DTC to DTC or another nominee of DTC, or by DTC 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 in lieu of, this Global Security shall be a
Global Security subject to the foregoing, except in the limited
circumstances described in the Declaration.
Unless this Capital Security Certificate is presented by an
authorized representative of DTC 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 is requested by an authorized representative of DTC (and any payment
hereon is 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 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
<PAGE>
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.
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
____ day of __________, 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>
EXHIBITS 5.1 AND 23.3
Form of Opinion to be filed by amendment
Warner Norcross & Judd LLP
900 Old Kent Building
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
April 29, 1997
Old Kent Financial Corporation
One Vandenberg Center
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
Re: Old Kent Capital Trust I
Ladies and Gentlemen:
We are general counsel to Old Kent Financial Corporation, a
Michigan corporation (the "Company"), and in such capacity have represented
the Company in connection with the registration under the Securities Act of
1933, as amended (the "Act"), under a Registration Statement on Form S-4
filed on or about this date (the "Registration Statement"), of $100,000,000
aggregate principal amount of the Company's Floating Rate Subordinated
Debentures due 2027 (the "Subordinated Debentures"), and the related
Guarantee Agreement (the "Guarantee") from the Company to Bankers Trust
Company, as Guarantee Trustee for the benefit of holders of $100,000,000
aggregate liquidation amount of the Floating Rate Subordinated Capital
Income Securities (the "Capital Securities") of Old Kent Capital Trust I, a
Delaware business trust (the "Trust"). We have also represented the Company
in connection the qualification under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of an Indenture with respect to the
Subordinated Debentures between the Company and Bankers Trust Company, as
Trustee (the "Indenture"), and of the Guarantee. The Capital Securities and
associated interests of the holders of such Capital Securities in the
Subordinated Debentures and the Guarantee (collectively, the "Securities")
are being registered by the Company and qualified under the Trust Indenture
Act for purposes of exchanging such Securities for like securities
previously issued by the Company and the Trust.
In connection with the opinions contained herein, we have
examined the Articles of Incorporation and Bylaws of the Company, the
corporate action taken by the Company relating to the Subordinated
Debentures and their issuance under the Indenture and the Guarantee, and
such other documents as we have deemed appropriate as a basis for the
opinions hereinafter expressed.
Based upon the foregoing we are of the opinion as follows:
<PAGE>
(a) The Subordinated Debentures to be issued by the Company have
been duly and validly authorized and, upon proper execution, authentication
and delivery thereof in accordance with the Indenture, will be legally
issued and will constitute binding obligations of the Company entitled to
the benefits of the Indenture.
(b) The Guarantee to be issued by the Company has been duly and
validly authorized and, upon proper execution and delivery thereof, will be
legally issued and will constitute the binding obligation of the Company.
We note that the law firm of Richards, Layton & Finger, as
special Delaware counsel to the Company and the Trust, has rendered its
opinion that, among other things, the Capital Securities will represent
valid and, subject to certain qualifications set forth in that opinion
letter, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust.
We hereby consent to the filing with the Securities and Exchange
Commission of this opinion as an exhibit to the Registration Statement
and to the reference to our firm under the heading "Legal Opinions"
contained therein. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted to, or relied
upon by, any other person for any purpose.
Very truly yours,
WARNER NORCROSS & JUDD LLP
/s/ Gordon R. Lewis
Gordon R. Lewis, a Partner
<PAGE>
EXHIBIT 5.2 and 23.2
RICHARD, LAYTON & FINGER
ONE ROONEY SQUARE
P.O. BOX 551
WILMINGTON, DELAWARE 19899
TELEPHONE (302) 658-6541
TELECOPIER (302) 658-6548
April 28, 1997
Old Kent Capital Trust I
c/o Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Re: OLD KENT CAPITAL TRUST I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Old Kent Financial
Corporation, a Michigan corporation (the "Company"), and Old Kent Capital
Trust I, a Delaware business trust (the "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Certificate of Trust of the Trust, dated January 27,
1997 (the "Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on January 28, 1997;
(b) The Declaration of Trust of the Trust, dated as of January
27, 1997, between the Company and the trustee of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on
Form S-4, including a preliminary prospectus (the "Prospectus") relating to
its Floating Rate Subordinated Capital Income Securities of the Trust
representing preferred undivided beneficial interests in the assets of the
Trust (each, a "New Capital Security" and collectively, the "New Capital
Securities"), as originally filed by the Company and the Trust with the
Securities and Exchange Commission on or about April 28, 1997;
(d) The Amended and Restated Declaration of Trust of the Trust,
dated as of January 31, 1997 (the "Declaration"), among the Company, the
Trust, Bankers Trust Company, as Property Trustee, Bankers Trust Company
(Delaware), as Delaware Trustee, and the Regular Trustees named therein;
and
<PAGE>
Old Kent Capital Trust I
April 28, 1997
Page 2
(e) A Certificate of Good Standing for the Trust, dated April
28, 1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have
assumed that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein. We have
conducted no independent factual investigation of our own but rather have
relied solely upon the foregoing documents, the statements and information
set forth therein and the additional matters recited or assumed herein, all
of which we have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the
due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by
us under the laws of the jurisdiction governing its creation, organization
or formation, (iii) the legal capacity of natural persons who are parties
to the documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a New
Capital Security is to be issued by the Trust (collectively, the "New
Capital Security Holders") of an appropriate certificate for such New
Capital Security and the payment for the New Capital Security acquired by
it, in accordance with the Declaration and the Registration Statement, and
(vii) that the New Capital Securities are issued and sold to the New
Capital Security Holders in accordance with the Declaration and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
<PAGE>
Old Kent Capital Trust I
April 28, 1997
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have
considered necessary or appropriate, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The New Capital Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The New Capital Security Holders, as beneficial owners of
the Trust, will 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. We note that the New
Capital Security Holders may be obligated to make payments as set forth in
the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In giving
the foregoing consent, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above,
without our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
<PAGE>
EXHIBITS 8.1 AND 23.3
Form of Opinion to be filed by amendment
Warner Norcross & Judd LLP
900 Old Kent Building
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
_______________, 1997
Old Kent Financial Corporation
One Vandenberg Center
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
Re: Old Kent Capital Trust I
Ladies and Gentlemen:
Reference is made to the information set forth under the heading
"Certain United States Federal Income Tax Consequences" contained in the
Prospectus included in your Registration Statement on Form S-4 (File No.
333-_______) relating to Capital Securities and related debentures and
guarantees. It is our opinion that the discussion under that heading, to
the extent it reflects matters of law or legal conclusions, and subject to
the assumptions and conditions described therein, accurately summarizes in
all material respects the matters discussed therein.
Our opinion is based on the case law, the Internal Revenue Code,
Treasury Regulations and Internal Revenue Service rulings as they now
exist. These authorities are all subject to change, and such change may be
made with retroactive effect. We can give no assurance that, after such
change, our opinion would not be different. We undertake no responsibility
to update or supplement our opinion.
We hereby consent to the filing with the Securities and Exchange
Commission of this opinion as an exhibit to the Registration Statement of
which the Prospectus is a part and to the reference to our firm under the
headings "Certain United States Federal Income Tax Consequences" and "Legal
Opinions" contained therein. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except
as stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person for any
purpose.
WARNER NORCROSS & JUDD LLP
(NOT SIGNED)
Stephen R. Kretschman, a Partner
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated January 20,
1997, included in Old Kent Financial Corporation's Annual Report on Form
10-K for the year ended December 31, 1996 and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Chicago, Illinois,
April 28, 1997
<PAGE>
EXHIBIT 24.1
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ RICHARD L. ANTONINI
Richard L. Antonini
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ JOHN M. BISSELL
John M. Bissell
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ JOHN D. BOYLES
John D. Boyles
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ WILLIAM P. CRAWFORD
William P. Crawford
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ RICHARD M. DEVOS, JR.
Richard M. DeVos, Jr.
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 23, 1997 /S/ WILLIAM G. GONZALEZ
William G. Gonzalez
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ JAMES P. HACKETT, SR.
James P. Hackett, Sr.
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ ERINA HANKA
Erina Hanka
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ EARL D. HOLTON
Earl D. Holton
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ ROBERT L. HOOKER
Robert L. Hooker
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ MICHAEL J. JANDERNOA
Michael J. Jandernoa
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ FRED P. KELLER
Fred P. Keller
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ JOHN P. KELLER
John P. Keller
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ HENDRIK G. MEIJER
Hendrik G. Meijer
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ WILLIAM U. PARFET
William U. Parfet
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ PERCY A. PIERRE
Percy A. Pierre
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ PATRICK M. QUINN
Patrick M. Quinn
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ ROBERT L. SADLER
Robert L. Sadler
Vice Chairman of the Board and Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ MARILYN J. SCHLACK
Marilyn J. Schlack
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ PETER F. SECCHIA
Peter F. Secchia
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ MARGARET SELLERS WALKER
Margaret Sellers Walker
Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ B.P. SHERWOOD, III
B.P. Sherwood, III
Vice Chairman of the Board and Treasurer
and Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a director or officer, or both,
as the case may be, of Old Kent Financial Corporation (the "Company"), does
hereby appoint DAVID J. WAGNER, B.P. SHERWOOD, III., ALBERT T. POTAS, and
MARY TUUK, and any of them severally, his or her attorney or attorneys with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, a Registration
Statement on Form S-4, and any amendments and post-effective amendments
thereto (collectively, the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended (the "Act"), of (a)
$100,000,000 in aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities ("Capital Securities") of Old Kent Capital Trust
I (the "Trust"), which will be issued in exchange for the Floating Rate
Subordinated Capital Income Securities issued pursuant to the Declaration,
dated as of January 31, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust Company (Delaware), as Delaware Trustee,
and the Regular Trustees named therein, (b) up to $100,000,000 in aggregate
principal amount of the Company's Floating Rate Junior Subordinated
Debentures (the "Subordinated Debentures"), which will be issued in
exchange for the Floating Rate Junior Subordinated Debentures issued by the
Company pursuant to the Indenture, dated as of January 31, 1997, from the
Company to Bankers Trust Company, as indenture trustee and (c) the
Company's Guarantee, which will be issued in exchange for the Guarantee
issued by the Company pursuant to the Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all such
documents and instruments as any such attorney-in-fact, or his substitute,
may deem necessary or advisable in connection with the registration,
qualification or exemption of the Capital Securities, the Subordinated
Debentures and the Guarantee under the securities laws of any state or
other jurisdiction.
April 21, 1997 /S/ DAVID J. WAGNER
David J. Wagner
Chairman, President, Chief Executive
Officer and Director
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a Regular Trustee of Old Kent
Capital Trust I (the "Trust"), does hereby appoint DAVID J. WAGNER, B.P.
SHERWOOD, III., ALBERT T. POTAS, and MARY TUUK, and any of them severally,
his or her attorney or attorneys with full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as a Regular Trustee of the Trust, a Registration Statement on
Form S-4, and any amendments and post-effective amendments thereto
(collectively, the "Registration Statement"), for the registration under
the Securities Act of 1933, as amended (the "Act"), of (a) $100,000,000 in
aggregate liquidation amount of Floating Rate Subordinated Capital Income
Securities ("Capital Securities") of the Trust, which will be issued in
exchange for the Floating Rate Subordinated Capital Income Securities
issued pursuant to the Declaration of Trust, dated as of January 31, 1997,
among Old Kent Financial Corporation (the "Company"), Bankers Trust
Company, as Property Trustee, Bankers Trust Company (Delaware), as Delaware
Trustee, and the Regular Trustees named therein, (b) up to $100,000,000 in
aggregate principal amount of the Company's Floating Rate Junior
Subordinated Debentures (the "Subordinated Debentures"), which will be
issued in exchange for the Floating Rate Junior Subordinated Debentures
issued by the Company pursuant to the Indenture, dated as of January 31,
1997, from the Company to Bankers Trust Company, as indenture trustee and
(c) the Company's Guarantee, which will be issued in exchange for the
Guarantee issued by the Company pursuant to the Guarantee Agreement, dated
as of January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as a Regular Trustee of the Trust, all such documents and
instruments as any such attorney-in-fact, or his substitute, may deem
necessary or advisable in connection with the registration, qualification
or exemption of the Capital Securities, the Subordinated Debentures and the
Guarantee under the securities laws of any state or other jurisdiction.
April 21, 1997 /S/ ALBERT T. POTAS
Albert T. Potas
Regular Trustee
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a Regular Trustee of Old Kent
Capital Trust I (the "Trust"), does hereby appoint DAVID J. WAGNER, B.P.
SHERWOOD, III., ALBERT T. POTAS, and MARY TUUK, and any of them severally,
his or her attorney or attorneys with full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as a Regular Trustee of the Trust, a Registration Statement on
Form S-4, and any amendments and post-effective amendments thereto
(collectively, the "Registration Statement"), for the registration under
the Securities Act of 1933, as amended (the "Act"), of (a) $100,000,000 in
aggregate liquidation amount of Floating Rate Subordinated Capital Income
Securities ("Capital Securities") of the Trust, which will be issued in
exchange for the Floating Rate Subordinated Capital Income Securities
issued pursuant to the Declaration of Trust, dated as of January 31, 1997,
among Old Kent Financial Corporation (the "Company"), Bankers Trust
Company, as Property Trustee, Bankers Trust Company (Delaware), as Delaware
Trustee, and the Regular Trustees named therein, (b) up to $100,000,000 in
aggregate principal amount of the Company's Floating Rate Junior
Subordinated Debentures (the "Subordinated Debentures"), which will be
issued in exchange for the Floating Rate Junior Subordinated Debentures
issued by the Company pursuant to the Indenture, dated as of January 31,
1997, from the Company to Bankers Trust Company, as indenture trustee and
(c) the Company's Guarantee, which will be issued in exchange for the
Guarantee issued by the Company pursuant to the Guarantee Agreement, dated
as of January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as a Regular Trustee of the Trust, all such documents and
instruments as any such attorney-in-fact, or his substitute, may deem
necessary or advisable in connection with the registration, qualification
or exemption of the Capital Securities, the Subordinated Debentures and the
Guarantee under the securities laws of any state or other jurisdiction.
April 21, 1997 /S/ THOMAS E. POWELL
Thomas E. Powell
Regular Trustee
<PAGE>
LIMITED POWER OF ATTORNEY
The undersigned, in his or her capacity as a Regular Trustee of Old Kent
Capital Trust I (the "Trust"), does hereby appoint DAVID J. WAGNER, B.P.
SHERWOOD, III., ALBERT T. POTAS, and MARY TUUK, and any of them severally,
his or her attorney or attorneys with full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as a Regular Trustee of the Trust, a Registration Statement on
Form S-4, and any amendments and post-effective amendments thereto
(collectively, the "Registration Statement"), for the registration under
the Securities Act of 1933, as amended (the "Act"), of (a) $100,000,000 in
aggregate liquidation amount of Floating Rate Subordinated Capital Income
Securities ("Capital Securities") of the Trust, which will be issued in
exchange for the Floating Rate Subordinated Capital Income Securities
issued pursuant to the Declaration of Trust, dated as of January 31, 1997,
among Old Kent Financial Corporation (the "Company"), Bankers Trust
Company, as Property Trustee, Bankers Trust Company (Delaware), as Delaware
Trustee, and the Regular Trustees named therein, (b) up to $100,000,000 in
aggregate principal amount of the Company's Floating Rate Junior
Subordinated Debentures (the "Subordinated Debentures"), which will be
issued in exchange for the Floating Rate Junior Subordinated Debentures
issued by the Company pursuant to the Indenture, dated as of January 31,
1997, from the Company to Bankers Trust Company, as indenture trustee and
(c) the Company's Guarantee, which will be issued in exchange for the
Guarantee issued by the Company pursuant to the Guarantee Agreement, dated
as of January 31, 1997, between the Company and Bankers Trust Company, as
guarantee trustee;
2. To file or cause to be filed any such Registration Statement with
the Securities and Exchange Commission;
3. To take all such other action as any such attorney-in-fact, or
his substitute, may deem necessary or desirable in order to effect and
maintain the registration of the Capital Securities, the Subordinated
Debentures and the Guarantee; and
4. To sign for him or her, in his or her name and in his or her
capacity as a Regular Trustee of the Trust, all such documents and
instruments as any such attorney-in-fact, or his substitute, may deem
necessary or advisable in connection with the registration, qualification
or exemption of the Capital Securities, the Subordinated Debentures and the
Guarantee under the securities laws of any state or other jurisdiction.
April 21, 1997 /S/ MARY E. TUUK
Mary E. Tuuk
Regular Trustee
<PAGE>
EXHIBIT 25.1
-----------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) __________
--------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-494127
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
--------------------------------------
OLD KENT FINANCIAL CORPORATION OLD KENT CAPITAL TRUST I
(Exact name of Registrant as specified (Exact name of Registrant as specified
in its charter) in its charter)
MICHIGAN 38-1986608 DELAWARE 38-6689514
(State or other (I.R.S. employer (State or other (I.R.S. employer
jurisdiction of Identification no.) jurisdiction of Identification no.)
incorporation or incorporation or
organization) organization)
ONE VANDENBERG CENTER C/O OLD KENT FINANCIAL CORPORATION
GRAND RAPIDS, MICHIGAN 49503 ONE VANDENBERG CENTER
(Address, including zip code GRAND RAPIDS, MICHIGAN 49503
of principal executive offices) (Address, including zip code of
principal executive offices)
<PAGE>
CAPITAL SECURITIES OF OLD KENT CAPITAL TRUST I
FLOATING RATE JUNIOR SUBORDINATED DEBENTURES OF
OLD KENT FINANCIAL CORPORATION
OLD KENT CORPORATION GUARANTEE WITH RESPECT TO CAPITAL SECURITIES
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
<TABLE>
<CAPTION>
NAME ADDRESS
<S> <C> <C>
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 21, 1995 -
Incorporated herein by reference to Exhibit 1
filed with Form T-1 Statement, Registration No.
33-65171, and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company
dated March 20, 1996, copy attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No.
33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
-2-
<PAGE>
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as
amended on February 18, 1997, Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 333-24509-01.
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
EXHIBIT 7 - A copy of the latest report of condition of
Bankers Trust Company dated as of December 31,
1996.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 21st day of April, 1997.
BANKERS TRUST COMPANY
By: /S/ KEVIN WEEKS
Kevin Weeks
Assistant Treasurer
-4-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: 0 - 0 - 6 - 2 - 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS DECEMBER 31, 1996
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, reported the amount outstanding as of the last business
day of the quarter.
<TABLE>
SCHEDULE RC--BALANCE SHEET
<CAPTION> C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C> <C>
ASSETS / / / / / / / / / / /
1. Cash and balances due from depository institutions (from / / / / / / / / / / /
Schedule RC-A): / / / / / / / / / / /
a. Noninterest-bearing balances and currency coin<F1>. . . . 0081 1,545,000 1.a.
b. Interest-bearing balances<F2> . . . . . . . . . . . . . . 0071 2,494,000 1.b.
2. Securities: / / / / / / / / / / /
a. Held-to-maturity securities (from Schedule RC-B, / / / / / / / / / / /
column A) . . . . . . . . . . . . . . . . . . . . . . . . 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, / / / / / / / / / / /
column D) . . . . . . . . . . . . . . . . . . . . . . . . 1773 4,368,000 2.b.
3. Federal funds sold and securities purchased under agreements / / / / / / / / / / /
to resell in domestic offices of the bank and of its Edge / / / / / / / / / / /
and Agreement subsidiaries, and in IBFs: / / / / / / / / / / /
a. Federal funds sold . . . . . . . . . . . . . . . . . . . 0276 3,651,000 3.a.
b. Securities purchased under agreements to resell . . . . . 0277 3,230,000 3.b.
4. Loans and lease financing receivables: / / / / / / / / / / /
a. Loans and leases, net of unearned income (from Schedule / / / / / / / / / / /
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 27,239,000 / / / / / / / / / / / 4.a.
b. LESS: Allowance for loan and lease losses. . . . . . . . RCFD 3123 917,000 / / / / / / / / / / / 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . RCFD 3128 0 / / / / / / / / / / / 4.c.
d. Loans and lease, net of unearned income, / / / / / / / / / / /
allowance, and reserve (item 4.a minus 4.b and 4.c) . . . 2125 28,889,000 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . 3545 38,272,000 5.
6. Premises and fixed assets (including capitalized leases) . . 2145 914,000 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . 2150 213,000 7.
8. Investments in unconsolidated subsidiaries and associated / / / / / / / / / / /
companies (from Schedule RC-M) . . . . . . . . . . . . . . . 2130 184,000 8.
9. Customers' liability to this bank on acceptances outstanding 2155 597,000 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . 2143 17,000 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . 2160 6,056,000 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . 2170 90,430,000 12.
<PAGE>
<FN>
- ---------------------
<F1> Includes cash items in process of collection and unposted debits.
<F2> Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: 0 - 0 - 6 - 2 - 3
</TABLE>
<TABLE>
SCHEDULE RC--CONTINUED
<CAPTION>
Dollar Amounts in Thousands / / / / / / Bil Mil Thou
LIABILITIES / / / / / / / / / / / / / / / / / / /
<S> <C> <C> <C> <C>
13. Deposits: / / / / / / / / / / / / / / / / / / /
a. In domestic offices (sum of totals of / / / / / / / / / / / / / / / / / / /
colums A and C from Schedule RC-E, part I) RCON 2200 11,985,000 13.a.
(1) Noninterest-bearing<F1> . . . . . . RCON 6631 2,734,000 / / / / / / / / / / / / / / / / / / / 13.a.(1)
(2) Interest-bearing . . . . . . . . . . RCON 6636 6,657,000 / / / / / / / / / / / / / / / / / / / 13.a.(2)
b. In foreign offices, Edge and Agreement / / / / / / / / / / / / / / / / / / /
subsidiaries, and IBFs (from Schedule / / / / / / / / / / / / / / / / / / /
RC-E part II) RCFN 2200 21,619,000 13.b.
(1) Non-interest bearing . . . . . . . . RCFN 6631 654,000 / / / / / / / / / / / / / / / / / / / 13.b.(1)
(2) Interest-bearing . . . . . . . . . . RCFN 6636 22,731,000 / / / / / / / / / / / / / / / / / / / 13.b.(2)
14. Federal funds purchased and securities sold / / / / / / / / / / / / / / / / / / /
under agreements to repurchase in domestic / / / / / / / / / / / / / / / / / / /
offices of the bank and of its Edge and / / / / / / / / / / / / / / / / / / /
Agreement subsidiaries, and in IBFs: / / / / / / / / / / / / / / / / / / /
a. Federal funds purchased . . . . . . . . RCFD 0278 6,560,000 14.a.
b. Securities sold under agreements to / / / / / / / / / / / / / / / / / / /
repurchase . . . . . . . . . . . . . . . RCFD 0279 120,000 14.b.
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a.
b. Trading liabilities. . . . . . . . . . . RCFD 3548 19,172,000 15.b.
16. Other borrowed money: / / / / / / / / / / / / / / / / / / /
a. With original maturity of one year or / / / / / / / / / / / / / / / / / / /
less . . . . . . . . . . . . . . . . . . RCFD 2332 15,909,000 16.a.
b. With original maturity of more than one / / / / / / / / / / / / / / / / / / /
year . . . . . . . . . . . . . . . . . . RCFD 2333 3,097,000 16.b.
17. Mortgage indebtedness and obligations under / / / / / / / / / / / / / / / / / / /
capitalized leases . . . . . . . . . . . . RCFD 2910 31,000 17.
18. Bank's liability on acceptances executed and / / / / / / / / / / / / / / / / / / /
outstanding . . . . . . . . . . . . . . . . RCFD 2920 597,000 18.
19. Subordinated notes and debentures . . . . . RCFD 3200 1,229,000 19.
20. Other liabilities (from Schedule RC-G). . . RCFD 2930 5,235,000 20.
21. Total liabilities (sum of items 13 / / / / / / / / / / / / / / / / / / /
through 20) . . . . . . . . . . . . . . . . RCFD 2948 85,554,000 21.
/ / / / / / / / / / / / / / / / / / /
22. Limited-life preferred stock and related / / / / / / / / / / / / / / / / / / /
surplus . . . . . . . . . . . . . . . . . . RCFD 3282 0 22.
<PAGE>
EQUITY CAPITAL / / / / / / / / / / / / / / / / / / /
23. Perpetual preferred stock and related / / / / / / / / / / / / / / / / / / /
surplus . . . . . . . . . . . . . . . . . . RCFD 3838 600,000 23.
24. Common stock . . . . . . . . . . . . . . . RCFD 3230 1,001,000 24.
25. Surplus (exclude all surplus related to / / / / / / / / / / / / / / / / / / /
preferred stock) . . . . . . . . . . . . . RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves . RCFD 3632 3,131,000 26.a.
b. Net unrealized holding gains (losses) / / / / / / / / / / / / / / / / / / /
on available-for-sale securities . . . . RCFD 8434 ( 14,000) 26.b.
27. Cumulative foreign currency translation / / / / / / / / / / / / / / / / / / /
adjustments . . . . . . . . . . . . . . . . RCFD 3284 ( 382,000) 27.
28. Total equity capital (sum of items 23 / / / / / / / / / / / / / / / / / / /
through 27). . . . . . . . . . . . . . . . RCFD 3210 4,876,000 28.
29. Total liabilities, limited-life preferred / / / / / / / / / / / / / / / / / / /
stock, and equity capital (sum of items / / / / / / / / / / / / / / / / / / /
21, 22, and 28) . . . . . . . . . . . . . . RCFD 3300 90,430,000 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum Number
<S> <C> <C>
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for
the bank by independent external auditors as of any
date during 1995. . . . . . . . . . . . . . . . . . . RCFD 6724 N/A M
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
<FN>
- ----------------------
<F1> Including total demand deposits and noninterest-bearing time and savings deposits.
</FN>
</TABLE>
<PAGE>
STATE OF NEW YORK,
BANKING DEPARTMENT
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State
of New York, DO HEREBY APPROVE the annexed Certificate entitled
"CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS
TRUST COMPANY UNDER SECTION 8005 OF THE BANKING LAW," dated March 20,
1996, providing for an increase in authorized capital stock from
$1,351,666,670 consisting of 85,166,667 shares with a par value of $10
each designated as Common Stock and 500 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $1,501,666,670
consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of
$1,000,000 each designated as Series Preferred Stock.
WITNESS, MY HAND AND OFFICIAL SEAL OF THE BANKING DEPARTMENT AT THE
CITY OF NEW YORK,
THIS 21ST DAY OF MARCH IN THE YEAR OF OUR LORD
ONE THOUSAND NINE HUNDRED AND NINETY-SIX.
/s/PETER M. PHILBIN
DEPUTY SUPERINTENDENT OF BANKS
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-------------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and an Assistant Secretary of Bankers Trust Company,
do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed
by the Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the
corporation shall have authority to issue and to increase the amount
of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference
to the authorized capital stock, the number of shares into which the
capital stock shall be divided, the par value of the shares and the
capital stock outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Three Hundred Fifty One
Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($1,351,666,670), divided into Eighty-Five Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(85,166,667) shares with a par value of $10 each designated
as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series
Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Five Hundred One Million,
Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,501,666,670), divided into One Hundred Million, One
Hundred Sixty Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated
as Common Stock and 500 shares with a par value of One
<PAGE>
Million Dollars ($1,000,000) each designated as Series
Preferred Stock."
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate
this 20th day of March , 1996.
/s/JAMES T. BYRNE, JR.
James T. Byrne, Jr.
Managing Director
/s/LEA LAHTINEN
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is
an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the
foregoing certificate and knows the contents thereof, and that the
statements herein contained are true.
/s/ LEA LAHTINEN
Lea Lahtinen
Sworn to before me this 20th day
of March, 1996.
/s/ SANDRA L. WEST
Notary Public
SANDRA L. WEST
Notary Public State of New York Counterpart filed in the
No. 31-4942101 Office of the Superintendent of
Qualified in New York County Banks, State of New York
Commission Expires September 19, 1996 This 21st day of March, 1996
<PAGE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
OLD KENT CAPITAL TRUST I
OFFER TO EXCHANGE ITS FLOATING RATE
SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING FLOATING RATE
SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS DATED ______, 1997
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON ________, 1997 UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE
WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To: Bankers Trust Company, as Exchange Agent
<TABLE>
<CAPTION>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT MAIL OR COURIER:
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust and Agency Group Corporate Trust and Agency Group
P.O. Box 292737 Receipt & Delivery Window Reorganization Unit
Nashville, TN 37229-2737 123 Washington Street, 1st Community Floor 648 Grassmere Park Road
New York, NY 10006 Nashville, TN 37211
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO
A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID
DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD
BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges that he or she has received the
Prospectus, dated _________, 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus"), of Old Kent Financial
Corporation, a Michigan corporation ("Old Kent"), and Old Kent Capital
Trust I, a Delaware statutory business trust (the "Trust"), and this Letter
of Transmittal, which together constitute Old Kent's and the Trust's offer
(the "Exchange Offer") to exchange an aggregate Liquidation Amount of up to
$100,000,000 of Floating Rate Subordinated Capital Income Securities due
February 1, 2027 (the "Old Capital Securities") for a like
aggregate Liquidation Amount of the Trust's Floating Rate Subordinated
Capital Income Securities due February 1, 2027 (the "New Capital
Securities") which have been registered under the Securities Act of 1933,
<PAGE>
as amended (the "Securities Act"). The term "Expiration Date" shall mean
5:00 p.m., New York City time, on _________, 1997, unless the Exchange Offer
is extended as provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange Offer is
extended. Capitalized terms used but not defined herein shall have the same
meaning giving them in the Prospectus.
Holders who wish to tender their Old Capital Securities and (i) whose
Old Capital Securities are not immediately available or (ii) time will not
permit their Old Capital Securities, this Letter of Transmittal or an Agent's
Message (as defined in the Prospectus) and any other documents required by
this Letter of Transmittal to be delivered to the Exchange Agent prior to
the Expiration Date must tender their Old Capital Securities according to the
guaranteed delivery procedures set forth in "The Exchange Offer--Procedures
for Tendering Old Capital Securities--Guaranteed Delivery" in the Prospectus.
See Instruction 1.
The term "Holder" with respect to the Exchange Offer means any person in
whose name Old Capital Securities are registered on the books of the Trust or
any other person who has obtained a properly completed bond power from the
registered holder. The undersigned has completed, executed and delivered
this Letter of Transmittal to indicate the action the undersigned desires to
take with respect to the Exchange Offer. Holders who wish to tender their
Old Capital Securities must complete this Letter of Transmittal in its
entirety.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY
BEFORE COMPLETING THIS LETTER OF TRANSMITTAL
___________________________________________________________________________
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
___________________________________________________________________________
<TABLE>
<CAPTION>
OLD CAPITAL LIQUIDATION NUMBER OF
SECURITIES AMOUNT OF BENEFICIAL HOLDERS
NAME AND ADDRESS CERTIFICATE TENDERED (ATTACH OLD CAPITAL FOR WHOM OLD
REGISTERED HOLDER NUMBERS<F*> ADDITIONAL LIST IF SECURITIES TENDERED CAPITAL SECURITIES
(PLEASE FILL IN IF BLANK) NECESSARY) (IF LESS THAN ALL)<F**> ARE HELD
<S> <C> <C> <C> <C>
$
$
$
$
<FN>
<F*> Need not be completed by book-entry holders.
2
<PAGE>
<F**> Old Capital Securities may be tendered in whole or in part in
denominations of $1,000 and integral multiples of $1,000 in excess thereof,
provided that if any Old Capital Securities are tendered for exchange in
part, the untendered Liquidation Amount thereof must be $1,000 or any
integral multiple of $1,000 in excess thereof. All Old Capital Securities
held shall be deemed tendered unless a lesser number is specified in this
column.
</FN>
</TABLE>
[_] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH THE DEPOSITORY TRUST COMPANY ("DTC") AND COMPLETE THE FOLLOWING (ONLY
PARTICIPANTS IN DTC MAY DELIVER CAPITAL SECURITIES BY BOOK-ENTRY TRANSFER)
(SEE INSTRUCTION 1):
Name of Tendering Institution______________________________________________
DTC Account Number_________________________________________________________
Transaction Code Number____________________________________________________
[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING (SEE INSTRUCTION 5):
Name of Registered Holders(s)______________________________________________
Window Ticket Number (if any)______________________________________________
Date of Execution of Notice of Guaranteed Delivery_________________________
Name of Institution which Guaranteed Delivery______________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution______________________________________________
DTC Account Number_________________________________________________________
Transaction Code Number____________________________________________________
[_] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD
CAPITAL SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER
SET FORTH ABOVE.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
3
<PAGE>
TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name_______________________________________________________________________
Address____________________________________________________________________
Area Code and Telephone Number______________ Contact Person_______________
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange
Offer, the undersigned hereby tenders to Old Kent and the Trust the
above-described aggregate Liquidation Amount of Old Capital Securities in
exchange for a like aggregate Liquidation Amount of New Capital Securities.
Subject to and effective upon the acceptance for exchange of all
or any portion of the Old Capital Securities tendered herewith in
accordance with the terms and conditions of the Exchange Offer (including,
if the Exchange Offer is extended or amended, the terms and conditions of
any such extension or amendment), the undersigned hereby sells, assigns and
transfers to or upon the order of the Trust all right, title and interest
in and to such Old Capital Securities as are being tendered herewith. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent
as its agent and attorney-in-fact (with full knowledge that the Exchange
Agent is also acting as agent of Old Kent and the Trust in connection with
the Exchange Offer) with respect to the tendered Old Capital Securities,
with full power of substitution (such power of attorney being deemed to be
an irrevocable power coupled with an interest), subject only to the right
of withdrawal described in the Prospectus, to: (i) deliver Certificates for
Old Capital Securities to Old Kent or the Trust together with all
accompanying evidences of transfer and authenticity to, or upon the order
of, the Trust, upon receipt by the Exchange Agent, as the undersigned's
agent, of the New Capital Securities to be issued in exchange for such Old
Capital Securities; (ii) present Certificates for such Old Capital
Securities for transfer, and to transfer the Old Capital Securities on the
books of the Trust; and (iii) receive for the account of the Trust all
benefits and otherwise exercise all rights of beneficial ownership of such
Old Capital Securities, all in accordance with the terms and conditions of
the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE
UNDERSIGNED HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN
AND TRANSFER THE OLD CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE
SAME ARE ACCEPTED FOR EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND
UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS,
4
<PAGE>
CHARGES AND ENCUMBRANCES, AND THAT THE OLD CAPITAL SECURITIES TENDERED
HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR INTERESTS. THE UNDERSIGNED
WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY
OLD KENT, THE TRUST OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO
COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD CAPITAL
SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY WITH ITS
OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED HAS
READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old
Capital Securities tendered hereby should be printed above, if they are not
already set forth above, as they appear on the Certificates representing
such Old Capital Securities. The Certificate number(s) and the Old Capital
Securities that the undersigned wishes to tender should be indicated in the
appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant
to the Exchange Offer for any reason, or if Certificates are submitted for
more Old Capital Securities than are tendered or accepted for exchange,
Certificates for such nonexchanged or nontendered Old Capital Securities
will be returned (or, in the case of Old Capital Securities tendered by
book-entry transfer, such Old Capital Securities will be credited to an
account maintained at DTC), without expense to the tendering holder,
promptly following the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities
pursuant to any one of the procedures described in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus
and in the instructions attached hereto will, upon Old Kent's and the
Trust's acceptance for exchange of such tendered Old Capital Securities,
constitute a binding agreement between the undersigned, Old Kent and the
Trust upon the terms and subject to the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set forth in
the Prospectus, Old Kent and the Trust may not be required to accept for
exchange any of the Old Capital Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the New
Capital Securities be issued in the name(s) of the undersigned or, in the
case of a book-entry transfer of Old Capital Securities, that such New
Capital Securities be credited to the account indicated above maintained at
DTC. If applicable, substitute Certificates representing Old Capital
Securities not exchanged or not accepted for exchange will be issued to the
undersigned or, in the case of a book-entry transfer of Old Capital
Securities, will be credited to the account indicated above maintained at
DTC. Similarly, unless otherwise indicated under "Special Delivery
Instructions," please deliver New Capital Securities to the undersigned at
the address shown below the undersigned's signature.
5
<PAGE>
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES, AND EACH PERSON
OWNING A BENEFICIAL INTEREST IN THE OLD CAPITAL SECURITIES BEING TENDERED BY
THE UNDERSIGNED IS DEEMED TO HEREBY REPRESENT AND AGREE THAT (I) THE
UNDERSIGNED AND EACH SUCH BENEFICIAL HOLDER ARE NOT "AFFILIATES" OF OLD KENT
OR THE TRUST, (II) ANY NEW CAPITAL SECURITIES TO BE RECEIVED BY THE
UNDERSIGNED AND EACH SUCH BENEFICIAL HOLDER ARE BEING ACQUIRED IN THE
ORDINARY COURSE OF ITS BUSINESS, (III) THE UNDERSIGNED AND EACH SUCH
BENEFICIAL HOLDER HAVE NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO
PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF
NEW CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (IV) IF THE
UNDERSIGNED AND EACH SUCH BENEFICIAL HOLDER ARE NOT BROKER-DEALERS, THE
UNDERSIGNED AND EACH SUCH BENEFICIAL HOLDER ARE NOT ENGAGED IN, AND DO NOT
INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF SUCH NEW CAPITAL SECURITIES. BY TENDERING OLD CAPITAL SECURITIES
PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF TRANSMITTAL, A
HOLDER OF OLD CAPITAL SECURITIES WHICH IS A BROKER-DEALER REPRESENTS AND
AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF
THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE COMMISSION
TO THIRD PARTIES, THAT (X) SUCH OLD CAPITAL SECURITIES HELD BY THE
BROKER-DEALER ARE HELD ONLY AS A NOMINEE OR (Y) SUCH OLD CAPITAL SECURITIES
WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF
MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER A
PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH NEW
CAPITAL SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY DELIVERING A
PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT IT IS AN
"UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
OLD KENT AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS
OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED
OR SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING
BROKER-DEALER (AS DEFINED BELOW) IN CONNECTION WITH RESALES OF NEW CAPITAL
SECURITIES RECEIVED IN EXCHANGE FOR OLD CAPITAL SECURITIES, WHERE SUCH OLD
CAPITAL SECURITIES WERE ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES, FOR A PERIOD ENDING 180 DAYS AFTER THE EFFECTIVE DATE OF THE
REGISTRATION STATEMENT (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED
CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH NEW
CAPITAL SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER.
IN THAT REGARD, EACH BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER"), BY TENDERING SUCH OLD CAPITAL SECURITIES AND
EXECUTING THIS LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE
FROM OLD KENT OR THE TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY
OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE
IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR WHICH CAUSES THE
PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT OF THE
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CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE
OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION RIGHTS
AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF NEW
CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL OLD KENT AND THE TRUST
HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR
OMISSION AND HAVE FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED
PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR OLD KENT OR THE TRUST HAS
GIVEN NOTICE THAT THE SALE OF THE NEW CAPITAL SECURITIES MAY BE RESUMED, AS
THE CASE MAY BE. IF OLD KENT OR THE TRUST GIVES SUCH NOTICE TO SUSPEND THE
SALE OF THE NEW CAPITAL SECURITIES, IT SHALL EXTEND THE 180-DAY PERIOD
REFERRED TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO
USE THE PROSPECTUS IN CONNECTION WITH THE RESALE OF NEW CAPITAL SECURITIES
BY THE NUMBER OF DAYS DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE
GIVING OF SUCH NOTICE TO AND INCLUDING THE DATE WHEN PARTICIPATING
BROKER-DEALERS SHALL HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR AMENDED
PROSPECTUS NECESSARY TO PERMIT RESALES OF THE NEW CAPITAL SECURITIES OR TO
AND INCLUDING THE DATE ON WHICH OLD KENT OR THE TRUST HAS GIVEN NOTICE THAT
THE SALE OF NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such
Old Capital Securities for any period from and after the last Distribution
Date with respect to such Old Capital Securities prior to the original
issue date of the New Capital Securities and will be deemed to have waived
the right to receive any Distributions on such Old Capital Securities
accumulated from and after such Distribution Date. However, because
Distributions on the New Capital Securities will accumulate from the last
Distribution Date prior to the consummation of the Exchange Offer the amount
of the Distributions received by holders whose Old Capital Securities are
accepted for exchange will not be affected by the exchange. See "The
Exchange Offer-Distributions on New Capital Securities" in the Prospectus.
All authority herein conferred or agreed to be conferred in this
Letter of Transmittal shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, executors, administrators, personal
representatives, trustees in bankruptcy, legal representatives, successors
and assigns of the undersigned. Except as stated in the Prospectus, this
tender is irrevocable.
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<PAGE>
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 14)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder(s) exactly as name(s)
appear(s) on Certificate(s) for the Old Capital Securities hereby tendered
or on a security position listing, or by any person(s) authorized to become
the registered holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and other information
as may be required by the Trust or the Exchange Agent to comply with the
restrictions on transfer applicable to the Old Capital Securities). If
signature is by an attorney-in-fact, executor, administrator, trustee,
guardian, officer of a corporation or another acting in a fiduciary capacity
or representative capacity, please set forth the signer's full title. See
Instruction 5.
___________________________________________________________________________
___________________________________________________________________________
(SIGNATURE(S) OF HOLDER(S))
Date: ________________________, 1997
Name(s):___________________________________________________________________
(PLEASE PRINT)
Capacity (full title)______________________________________________________
Address ___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number_____________________________________________
___________________________________________________________________________
Tax Identification or Social Security Number_______________________________
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<PAGE>
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 2 AND 5)
___________________________________________________________________________
(AUTHORIZED SIGNATURE)
Date: ________________________, 1997
Name of Firm_______________________________________________________________
Capacity (full title)______________________________________________________
(PLEASE PRINT)
Address ___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number_____________________________________________
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if New Capital Securities or Old Capital
Securities not tendered are to be issued in the name of someone other than
the registered holder of the Old Capital Securities whose name(s) appear(s)
above.
Issue
[_] Old Capital Securities not tendered to:
[_] New Capital Securities, to:
Name(s):___________________________________________________________________
Address ___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number_____________________________________________
Tax Identification or Social Security Number_______________________________
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<PAGE>
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if New Capital Securities or Old Capital
Securities not tendered are to be sent to someone other than the registered
holder of the Old Capital Securities whose name(s) appear(s) above, or such
registered holder(s) at an address other than that shown above.
Mail
[_] Old Capital Securities not tendered to:
[_] New Capital Securities, to:
Name(s):___________________________________________________________________
Address ___________________________________________________________________
___________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number_____________________________________________
Tax Identification or Social Security Number_______________________________
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed either
if (i) Certificates are to be forwarded herewith or (ii) tenders are to be
made pursuant to the procedures for tender by book-entry transfer set forth
in "The Exchange Offer--Procedures for Tendering Old Capital Securities" in
the Prospectus and an Agent's Message is not delivered. Certificates, or
timely book-entry confirmation of a book-entry transfer of such Old Capital
Securities into the Exchange Agent's account at DTC, as well as this Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, and any other documents required by
this Letter of Transmittal, must be received by the Exchange Agent at its
address set forth herein on or prior to the Expiration Date. Tenders by
book-entry transfer may also be made by delivering an Agent's Message in lieu
of this Letter of Transmittal. The term "book-entry confirmation" means a
timely confirmation of book-entry transfer of Old Capital Securities into the
Exchange Agent's account at DTC. The term "Agent's Message" means a message,
transmitted by DTC to and received by the Exchange Agent and forming a part
of a book-entry confirmation, which states that DTC has received an express
acknowledgment from the tendering participant, which acknowledgment states
that such participant has received and agrees to be bound by the Letter of
Transmittal (including the representations contained herein) and that the
Trust and Old Kent may enforce the Letter of Transmittal against such
participant. Old Capital Securities may be tendered in whole or in part in
10
<PAGE>
the principal Liquidation Amount of $1,000 (1 Capital Security) and integral
multiples of $1,000 in excess thereof, provided that, if any Old Capital
Securities are tendered for exchange in part, the untendered principal
Liquidation Amount thereof must be $1,000 (1 Capital Security) or any
integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i)
whose Old Capital Securities are not immediately available or (ii) who
cannot deliver their Old Capital Securities, this Letter of Transmittal and
all other required documents to the Exchange Agent on or prior to the
Expiration Date or (iii) who cannot complete the procedures for delivery by
book-entry transfer on a timely basis, may tender their Old Capital
Securities by properly completing and duly executing a Notice of Guaranteed
Delivery pursuant to the guaranteed delivery procedures set forth in "The
Exchange Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus. Pursuant to such procedures: (i) such tender must be made by or
through an Eligible Institution (as defined below); (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in
the form made available by Old Kent, must be received by the Exchange
Agent on or prior to the Expiration Date; and (iii) the Certificates (or a
book-entry confirmation (as defined in the Prospectus)) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a Letter of Transmittal (or facsimile thereof), or an Agent's Message,
properly completed and duly executed, with any required signature guarantees
and any other documents required by this Letter of Transmittal, must be
received by the Exchange Agent within three (3) New York Stock Exchange,
Inc. trading days after the date of execution of such Notice of Guaranteed
Delivery, all as provided in "The Exchange Offer--Procedures for Tendering
Old Capital Securities" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice.
For Old Capital Securities to be properly tendered pursuant to the
guaranteed delivery procedure, the Exchange Agent must receive a Notice of
Guaranteed Delivery on or prior to the Expiration Date. As used herein and
in the Prospectus, "Eligible Institution" means a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor
institution," including (as such terms are defined therein) (i) a bank;
(ii) a broker, dealer, municipal securities broker or dealer or government
securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency;
or (v) a savings association that is a participant in a Securities Transfer
Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY
THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
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<PAGE>
RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE
TIMELY DELIVERY.
Neither Old Kent nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof), waives any right to receive
any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if: (i) this Letter of Transmittal is signed by the
registered holder (which term, for purposes of this document, shall include
any participant in DTC whose name appears on a security position listing as
the owner of the Old Capital Securities) of Old Capital Securities tendered
herewith, unless such holder(s) has completed either the box entitled
"Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" above; or (ii) such Old Capital Securities are tendered for
the account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities Tendered" is inadequate, the
Certificate number(s) and/or the Liquidation Amount of Old Capital
Securities and any other required information should be listed on a
separate signed schedule which is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the principal Liquidation Amount of
$1,000 (1 Capital Security) and integral multiples of $1,000 in excess
thereof, provided that if any Old Capital Securities are tendered for
exchange in part, the untendered principal Liquidation Amount thereof must
be $1,000 (1 Capital Security) or any integral multiple of $1,000 in excess
thereof. If less than all the Old Capital Securities evidenced by any
Certificate submitted are to be tendered, fill in the Liquidation Amount of
Old Capital Securities which are to be tendered in the box entitled
"Liquidation Amount of Old Capital Securities Tendered (if less than all)."
In such case, new Certificate(s) for the remainder of the Old Capital
Securities that were evidenced by your old Certificate(s) will only be sent
to the holder of the Old Capital Securities, promptly after the Expiration
Date, unless appropriate boxes on this Letter of Transmittal are completed.
All Old Capital Securities represented by Certificates delivered to
the Exchange Agent will be deemed to have been tendered unless otherwise
indicated.
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date. In order
for a withdrawal to be effective on or prior to that time, a written,
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<PAGE>
telegraphic, telex or facsimile transmission of such notice of withdrawal
must be timely received by the Exchange Agent at one of its addresses set
forth above or in the Prospectus on or prior to the Expiration Date. Any
such notice of withdrawal must specify the name of the person who tendered
the Old Capital Securities to be withdrawn, the aggregate Liquidation Amount
of Old Capital Securities to be withdrawn and (if Certificates for Old
Capital Securities have been tendered) the name of the registered holder of
the Old Capital Securities as set forth on the Certificate for the Old
Capital Securities, if different from that of the person who tendered such
Old Capital Securities. If Certificates for the Old Capital Securities have
been delivered or otherwise identified to the Exchange Agent, then prior to
the physical release of such Certificates for the Old Capital Securities,
the tendering holder must submit the serial numbers shown on the particular
Certificates for the Old Capital Securities to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Old Capital Securities tendered for the
account of an Eligible Institution. If Old Capital Securities have been
tendered pursuant to the procedures for book-entry transfer set forth in
"The Exchange Offer--Procedures for Tendering Old Capital Securities," the
notice of withdrawal must specify the name and number of the account at DTC
to be credited with the withdrawal of Old Capital Securities, in which case
a notice of withdrawal will be effective if delivered to the Exchange Agent
by written, telegraphic, telex or facsimile transmission. Withdrawals of
tenders of Old Capital Securities may not be rescinded. Old Capital
Securities properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent
time on or prior to the Expiration Date by following any of the procedures
described in the Prospectus under "The Exchange Offer--Procedures for
Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by Old Kent and
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Old Kent and the Trust, any affiliates or assigns
of Old Kent and the Trust, the Exchange Agent or any other person shall not
be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Capital Securities which have been tendered but which
are withdrawn will be returned to the holder thereof without cost to such
holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the
Old Capital Securities tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Certificate(s)
without alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter
of Transmittal.
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<PAGE>
If any tendered Old Capital Securities are registered in different
name(s) on several Certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal (or facsimiles thereof) as
there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-
in-fact, officers of corporations or others acting in a fiduciary
or representative capacity, such persons should so indicate when signing
and must submit proper evidence satisfactory to Old Kent and the Trust, in
their sole discretion, of each such person's authority to act in such
capacity.
When this Letter of Transmittal is signed by the registered owner(s)
of the Old Capital Securities listed and transmitted hereby, no
endorsement(s) of Certificate(s) or separate bond power(s) are required
unless New Capital Securities are to be issued in the name of a person
other than the registered holder(s). Signature(s) on such Certificate(s) or
bond power(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Capital Securities listed, the Certificates
must be endorsed or accompanied by appropriate bond powers, signed exactly
as the name or names of the registered owner(s) appear(s) on the
Certificates, and also must be accompanied by such opinions of counsel,
certifications and other information as Old Kent, the Trust or the Exchange
Agent may require in accordance with the restrictions on transfer applicable
to the Old Capital Securities. Signatures on such Certificates or bond
powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital
Securities are to be issued in the name of a person other than the signer
of this Letter of Transmittal, or if New Capital Securities are to be sent
to someone other than the signer of this Letter of Transmittal or to an
address other than that shown above, the appropriate boxes on this Letter
of Transmittal should be completed. Certificates for Old Capital Securities
not exchanged will be returned by mail or, if tendered by book-entry
transfer, by crediting the account indicated above maintained at DTC, unless
appropriate boxes on this Letter of Transmittal are completed. See
Instruction 4.
7. IRREGULARITIES. Old Kent and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities, which determination shall be final and
binding on all parties. Old Kent and the Trust reserve the absolute right
to reject any and all tenders determined by either of them not to be in
proper form or the acceptance of which, or exchange for, may, in the view
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<PAGE>
of counsel to Old Kent and the Trust, be unlawful. Old Kent and the Trust
also reserve the absolute right, subject to applicable law, to waive any of
the conditions of the Exchange Offer set forth in the Prospectus under "The
Exchange Offer--Certain Conditions to the Exchange Offer" or any condition
or irregularity in any tender of Old Capital Securities of any particular
holder whether or not similar conditions or irregularities are waived in
the case of other holders. Old Kent's and the Trust's interpretation of the
terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and binding. No
tender of Old Capital Securities will be deemed to have been validly made
until all irregularities with respect to such tender have been cured or
waived. Old Kent, the Trust, any affiliates or assigns of Old Kent, the
Trust, the Exchange Agent, or any other person shall not be under any duty
to give notification of any irregularities in tenders or incur any
liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Exchange Agent at its
address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange
Agent or from your broker, dealer, commercial bank, trust company or other
nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under United States
federal income tax law, a holder whose tendered Old Capital Securities are
accepted for exchange is required to provide the Exchange Agent with such
holder's correct taxpayer identification number ("TIN") on the Substitute
Form W-9 below. If the Exchange Agent is not provided with the correct TIN,
the Internal Revenue Service (the "IRS") may subject the holder or other
payee to a $50 penalty. In addition, payments to such holders or other
payees with respect to Old Capital Securities exchanged pursuant to the
Exchange Offer may be subject to 31% backup withholding.
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is
checked, the holder or other payee must also complete the Certificate of
Awaiting Taxpayer Identification Number below in order to avoid backup
withholding. Notwithstanding that the box in Part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all payments made prior to the time a
properly certified TIN is provided to the Exchange Agent. The Exchange
Agent will retain such amounts withheld during the 60-day period following
the date of the Substitute Form W-9. If the holder furnishes the Exchange
Agent with its TIN within 60 days after the date of the Substitute Form
W-9, the amounts retained during the 60 day period will be remitted to the
holder and no further amounts shall be retained or withheld from payments
made to the holder thereafter. If, however, the holder has not provided the
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<PAGE>
Exchange Agent with its TIN within such 60 day period, amounts withheld
will be remitted to the IRS as backup withholding. In addition, 31% of all
payments made thereafter will be withheld and remitted to the IRS until a
correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the registered
owner of the Old Capital Securities or of the last transferee appearing on
the transfers attached to, or endorsed on, the Old Capital Securities. If
the Old Capital Securities are registered in more than one name or are not
in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these
backup withholding and reporting requirements. Such holders should
nevertheless complete the attached Substitute Form W-9 below and write
"exempt" on the face thereof, to avoid possible erroneous backup
withholding. A foreign person may qualify as an exempt recipient by
submitting a properly completed IRS Form W-8, signed under penalties of
perjury, attesting to that holder's exempt status.
Backup withholding is not an additional U.S. federal income tax.
Rather, the U.S. federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
10. WAIVER OF CONDITIONS. Old Kent and the Trust reserve the absolute
right to waive satisfaction of any or all conditions enumerated in the
Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Old Capital
Securities, by execution and delivery of this Letter, shall waive any right
to receive notice of the acceptance of their Old Capital Securities for
exchange.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Capital Securities have been lost, destroyed or stolen,
the holder should promptly notify the Exchange Agent. The holder will then
be instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
13. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be
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<PAGE>
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Old Capital Securities tendered, or if a transfer
tax is imposed for any reason other than the exchange of Old Capital
Securities in connection with the Exchange Offer, then the amount of any
such transfer tax (whether imposed on the registered holder or any other
persons) will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with the
Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO
THE EXPIRATION DATE.
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<PAGE>
TO BE COMPLETED BY ALL TENDERING SECURITY HOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME: Bankers Trust Company
SUBSTITUTE
Form W-9
Department of the Treasury
Internal Revenue Service
Payer's Request for
Taxpayer
Identification
Number (TIN) Part 1- PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND
CERTIFY BY SIGNING AND DATING BELOW Social Security Number OR Employer
Identification Number
______________________
Part 2 - CERTIFICATION - Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me) and
(2) I am not subject to backup withholding either because: (a) I am exempt
from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding.
CERTIFICATE INSTRUCTIONS - You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup withholding
because of under reporting interest or dividends on your tax return.
However, if after being notified by the IRS that you are subject to backup
withholding, you received another notification from the IRS that you are no
longer subject to backup withholding, do not cross out such item (2).
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION
OF THIS DOCUMENT OTHER THAN THE CERTIFICATES REQUIRED TO AVOID BACKUP
WITHHOLDING.
SIGNATURE ___________________________
DATE ________________________________
NAME (Please Print) _________________
ADDRESS (Please Print) ______________Part 3-
Awaiting
TIN [ ]
18
<PAGE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO
THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
2 OF SUBSTITUTE W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (i) I have
mailed or delivered an application to receive a taxpayer identification
number to the appropriate Internal Revenue Service Center or Social
Security Administration Office or (ii) I intend to mail or deliver an
application in the near future. I understand that if I do not provide a
taxpayer identification number by the time of payment, 31% of all payments
made to me on account of the New Capital Securities shall be retained until
I provide a taxpayer identification number to the Exchange Agent and that,
if I do not provide my taxpayer identification number within 60 days, such
retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and 31% of all reportable payments made to me thereafter
will be withheld and remitted to the Internal Revenue Service until I
provide a taxpayer identification number.
Signature: ___________________________________ Date: _____________, 1997
Name (Please Print)________________________________________________________
Address (Please Print)_____________________________________________________
19
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
FLOATING RATE SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
OLD KENT CAPITAL TRUST I
As set forth in the Prospectus dated __________, 1997 (the
"Prospectus"), of Old Kent Capital Trust I (the "Trust") and Old Kent
Financial Corporation under the caption "The Exchange Offer--Procedures for
Tendering Old Capital Securities--Guaranteed Delivery," this form must be
used to accept the Trust's offer to exchange its Floating Rate Subordinated
Capital Income Securities (the "New Capital Securities") for a like
Liquidation Amount of its outstanding Floating Rate Subordinated Capital
Income Securities (the "Old Capital Securities"), by Holders who wish to
tender their Old Capital Securities and (i) whose Old Capital Securities
are not immediately available or (ii) cannot deliver their Old Capital
Securities, the Letter of Transmittal or an Agent's Message (as defined in
the Prospectus) and any other documents required by the Letter of
Transmittal to the Exchange Agent prior to the Expiration Date. This form
must be delivered by mail or hand delivery or transmitted, via facsimile,
to the Exchange Agent at its address set forth below not later than the
Expiration Date. All capitalized terms used herein but not defined herein
shall have the meanings ascribed to them in the Prospectus.
THE EXCHANGE AGENT IS:
BANKERS TRUST COMPANY
<TABLE>
<CAPTION>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT MAIL OR COURIER:
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust and Agency Group Corporate Trust and Agency Group
P.O. Box 292737 Receipt & Delivery Window Reorganization Unit
Nashville, TN 37229-2737 123 Washington Street, 1st Floor 648 Grassmere Park Road
New York, NY 10006 Nashville, TN 37211
FOR INFORMATION CALL.
(800) 735-7777
Confirm: (615) 835-3572
Facsimile: (615) 835-3701
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders for exchange to the Trust upon the
terms and subject to the conditions set forth in the Prospectus and the
Letter of Transmittal, receipt of which is hereby acknowledged, the
aggregate Liquidation Amount of Old Capital Securities set forth below
pursuant to the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer--Procedures for Tendering Old Capital
Securities--Guaranteed Delivery."
The undersigned understands and acknowledges that the Exchange Offer
will expire at 5:00 p.m., New York City time, on _____________, 1997,
unless extended by the Trust. The term "Expiration Date" shall mean
5:00 p.m., New York City time, on ___________, 1997, unless the Exchange
Offer is extended as provided in the Prospectus, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall survive the death, incapacity or dissolution of
the undersigned, and every obligation of the undersigned under this Notice
of Guaranteed Delivery shall be binding upon the undersigned's heirs,
personal representatives, successors and assigns.
SIGNATURE
X ________________________________________ Date: ______________________
X ________________________________________ Date: ______________________
Signature(s) of Registered Holder(s)
of Authorized Signatory
Area Code and Telephone Number: ___________________________________________
Name(s) ___________________________________________________________________
(Please Print)
Capacity (full title, if signing in a fiduciary or representative
capacity):
___________________________________________________________________________
Address: __________________________________________________________________
(Including Zip Code)
<PAGE>
Taxpayer Identification or
Social Security No.:_______________________________________________________
Aggregate Liquidation Amount of
Old Capital Securities Tendered
(must be in integral
multiples of $1,000): $________________________________
Certificate Number(s) of Old Capital Securities (if available):
Aggregate Liquidation Amount
Represented by Certificate(s): $________________________________
IF TENDERED OLD CAPITAL SECURITIES WILL BE DELIVERED BY BOOK-ENTRY
TRANSFER, PROVIDE THE DEPOSITORY TRUST COMPANY ("DTC") ACCOUNT NO. AND
TRANSACTION CODE NUMBER (IF AVAILABLE):
Account No.________________________________________________________________
Transaction No.____________________________________________________________
GUARANTY OF DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or entity identified as an "eligible guarantor
institution" within the meaning of Rule 17Ad-15 promulgated under the
Securities Exchange Act of 1934, as amended, guarantees deposit with the
Exchange Agent of a properly completed and executed Letter of Transmittal
(or facsimile thereof), or an Agent's Message, as well as the
certificate(s) representing all tendered Old Capital Securities in proper
form for transfer, or confirmation of the book-entry transfer of such Old
Capital Securities into the Exchange Agent's account at the Book-Entry
Transfer Facility described in the Prospectus under the caption "The
Exchange Offer--Procedures for Tendering Old Capital Securities--Book-Entry
Transfer" and other documents required by the Letter of Transmittal, all by
5:00 p.m., New York City time, on the third New York Stock Exchange trading
day following the Expiration Date.
<PAGE>
Name of Eligible Institution:______________________________________________
AUTHORIZED SIGNATURE
Address:______________________________ Name:______________________________
______________________________________ Title:_____________________________
Area Code and Telephone No.:__________ Date:______________________________
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE. ACTUAL
SURRENDER OF OLD CAPITAL SECURITIES MUST BE PURSUANT TO, AND BE ACCOMPANIED
BY, A PROPERLY EXECUTED LETTER OF TRANSMITTAL.
<PAGE>
EXHIBIT 99.3
DRAFT
4/22/97
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
Bankers Trust Company
Corporate Trust and
Agency Group
Four Albany Street, 4th Floor
New York, NY 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
___________________________________________________________________________
corporation (the "Company"), is offering to exchange (the "Exchange Offer")
its _____________ (the "Old Securities") for an equal principal amount of
its _____________ (the "New Securities" and, together with the Old
Securities, the "Securities"), pursuant to a prospectus (the "Prospectus")
included in the Company's Registration Statement on Form S-4 (File No.
_______________), as amended (the "Registration Statement"), filed with the
Securities and Exchange Commission. The Term "Expiration Date" shall mean
5:00 p.m., New York City time, on ___________, unless the Exchange Offer is
extended as provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange Offer is
extended. Upon execution of this Agreement, you will act as the exchange
agent for the Exchange Offer (the "Exchange Agent"). A copy of the
Prospectus included in the Registration Statement is attached hereto as
EXHIBIT A. Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of the letter of transmittal (the "Letter
of Transmittal"), the form of the notice of guaranteed delivery (the
"Notice of Guaranteed Delivery"), the form of letter to brokers and the
form of letters to clients (collectively, the "Tender Documents") to be
used by holders of Old Securities (collectively, the "Holders") in order to
receive New Securities pursuant to the Exchange Offer are attached hereto
as EXHIBIT B.
The Company hereby appoints you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent,
you are to act at all times in good faith and in accordance with the
following provisions of this Agreement.
<PAGE>
1. You are to mail the Prospectus and the Tender Documents to all of
the Holders and participants on the day that you are notified by the
Company that the Registration Statement has become effective under the
Securities Act of 1933, as amended, or as soon as practicable thereafter,
and to make subsequent mailings thereof to any persons who become Holders
prior to the Expiration Date and to any persons who may from time to time
request such documents. All mailings pursuant to this Section 1 shall be
by first class mail, postage prepaid, unless otherwise specified by the
Company. You shall also accept and comply with telephone requests for
information relating to the Exchange Offer provided that such information
shall relate only to the procedures for tendering Old Securities in (or
withdrawing tenders of Old Securities from) the Exchange Offer. All other
requests for information relating to the Exchange offer shall be directed
to the Company, Attention: ____________________, at the address set forth
in Section 24 hereof.
2. You are to examine the Letters of Transmittal and the Old
Securities and other documents delivered or mailed to you, by or for the
Holders, prior to the Expiration Date, to ascertain whether (i) the Letters
of Transmittal are properly executed and completed in accordance with the
instructions set forth therein, (ii) the Old Securities are in proper form
for transfer and (iii) all other documents submitted to you have been
properly executed and delivered and otherwise are in proper form. In each
case where a Letter of Transmittal or other document has been improperly
executed or completed or, for any other reason, is not in proper form, or
some other irregularity exists, you will endeavor to notify the tendering
Holder of such irregularity and as to the appropriate means of resolving
the same and to take any other action that you consider necessary or
advisable to cause the irregularity to be corrected. Determination of
questions as to the proper completion or execution of the Letters of
Transmittal, or as to the proper form for transfer of the Old Securities or
as to any other irregularity in connection with the submission of Letters
of Transmittal and/or Old Securities and other documents in connection with
the Exchange offer, shall be made by the officers of, or counsel for, the
Company at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such questions shall
be final and binding.
3. At the written request of the Company or its counsel, you shall
notify tendering Holders of Old Securities in the event of any extension,
termination or amendment of the Exchange Offer. In the event of any such
termination, at the request of the Company or its counsel, you will return
all tendered Old Securities to the persons entitled thereto, at the expense
of the Company.
4. Tender of the Old Securities may be made only as set forth in the
Tender Documents and in the section of the Prospectus captioned "THE
EXCHANGE OFFER." Notwithstanding the foregoing, tenders which an officer
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<PAGE>
of the Company shall approve in writing as having been properly tendered
shall be considered to be properly tendered. Letters of Transmittal and
Notices of Guaranteed Delivery shall be recorded by you as to the date and
time of receipt and shall be preserved and retained by you at the Company's
expense for six years. You shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company. New
Securities are to be issued in exchange for properly tendered and accepted
Old Securities pursuant to the Exchange Offer only (i) against deposit with
you prior to the Expiration Date or, in the case of a tender in accordance
with the guaranteed delivery procedures outlined in the Tender Documents,
within three New York Stock Exchange trading days after the Expiration Date
of the Exchange Offer, of certificates (or a book-entry confirmation)
representing the properly tendered and accepted Old Securities together
with executed Letters of Transmittal and other documents required by the
Exchange Offer or (ii) in the event that the Holder is a participant in the
Depository Trust Company ("DTC") system, by the utilization of DTC's
Automated Tender Offer Program ("ATOP") and any evidence required by you or
the Tender Documents.
You are hereby directed to establish an account with respect to
the Old Securities at The Depositary Trust Company (the "Book Entry
Transfer Facility") within two days after the date of the Prospectus in
accordance with SEC regulations. Any financial institution that is a
participant in the Book Entry Transfer Facility system may, until the
Expiration Date, make book-entry delivery of the Old Securities by causing
the Book Entry Facility to transfer such Old Securities into your account
in accordance with the procedure for such transfer established by the Book
Entry Transfer Facility. In every case, however, a Letter of Transmittal
(or a manually executed facsimile thereof) or an Agent's Message, properly
completed and dully executed, with any required signature guarantees and
any other required documents must be transmitted to and received by you
prior to the Expiration Date or the guaranteed delivery procedures
described in the Tender Documents must be complied with.
5. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to _____________ of the Company and
any other person or persons that the Company may request, daily (and more
frequently during the week immediately preceding the Expiration Date and if
otherwise requested) up to and including the Expiration Date, as to the
number of Old Securities which have been tendered pursuant to the Exchange
Offer and giving cumulative totals as to items properly received. In
addition, you will inform and cooperate in making available to the Company
and any other person or persons designated by the Company any other
information that it or he or she reasonably requests from time to time
prior to the Expiration Date. Such cooperation shall include, without
limitation, the granting by you to the Company and such person or persons
as the Company may request of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that immediately
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<PAGE>
prior to the Expiration Date the Company shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange
Offer. Promptly after the Expiration Date you shall prepare and deliver to
the Company a final report listing the aggregate principal amount of Old
Securities properly tendered and the aggregate principal amount of Old
Securities improperly tendered.
6. Upon satisfaction or waiver by the Company of the conditions of
the Exchange Offer, an officer of the Company will notify you (such notice,
if given orally, to be confirmed in writing) of its acceptance, promptly
after the Expiration Date, of all Old Securities properly tendered and you,
on behalf of the Company, will promptly exchange such Old Securities for
New Securities in accordance with the procedures set forth in this
Agreement, the Tender Documents and in the section of the Prospectus
captioned "THE EXCHANGE OFFER." You will hold all items which are
deposited for tender with you after 5:00 p.m., New York City time, on the
Expiration Date pending such notification from an officer of the Company.
Delivery of New Securities will be made on behalf of the Company by you at
the rate of $1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities tendered
promptly after notice of acceptance of the Old Securities by the Company as
provided above; provided, however, that in all cases, Old Securities
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Old Securities (or confirmation of
book-entry transfer into your account at the Book-Entry Transfer Facility),
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof) or an Agent's Message with any required signature guarantees and
any other required documents. You shall issue New Securities only in
denominations of $1,000 or any integral multiple thereof.
7. If any Holder shall report to you that his or her failure to
surrender Old Securities registered in his or her name is due to the loss
or destruction of a certificate or certificates, you shall request such
Holder (i) to furnish to you an affidavit of loss and, if required by the
Company, a bond of indemnity in an amount and evidenced by such certificate
or certificates of a surety, as may be satisfactory to you and the Company,
and (ii) to execute and deliver an agreement to indemnify the Company and
you in such form as is acceptable to you and the Company. The obligees to
be named in each such indemnity bond shall include the Company and you.
You shall promptly report to the Company the names of all Holders who claim
that their Old Securities have been lost or destroyed and the principal
amount of such Old Securities.
8. As soon as practicable after receipt of the notice from the
Company described in Section 6 hereof, you shall mail or deliver to each
Holder the New Securities that such Holder may be entitled to receive and
you shall cancel the Old Securities submitted to you or returned by DTC in
connection with ATOP. Such canceled Notes shall be forwarded to the
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<PAGE>
Company at the address set forth in Section 24 hereof. You shall notify
the Company as to any Old Securities received within 30 days after the
Expiration Date and accept and comply with the Company's instructions with
respect to the disposition of those Old Securities. You shall return all
Old Securities received after such 30-day period to the persons entitled
thereto.
9. For your services as the Exchange Agent hereunder, the Company
shall pay you in accordance with the schedule of fees attached hereto as
EXHIBIT C. The Company also will reimburse you for your reasonable out-of-
pocket expenses (including, but not limited to, reasonable attorneys' fees
not previously paid to you as set forth in EXHIBIT C) in connection with
your services promptly after submission to the Company of itemized
statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage
or utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein, in the Exhibits attached hereto, in the
Tender Documents or in the section of the Prospectus captioned "THE
EXCHANGE OFFER" or as may be subsequently requested in writing of you by
the Company and agreed to by you in writing with respect to the Exchange
Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Securities deposited with you hereunder or of any
New Securities, any Tender Documents or other documents prepared by the
Company in connection with the Exchange Offer, and you will make no
representation as to such validity, accuracy, sufficiency, value or
genuineness;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability
unless you shall have been furnished with an indemnity reasonably
satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 12 hereof in acting upon, the written or oral
instructions of any officer of the Company with respect to any matter
relating to your acting as Exchange Agent specifically covered by this
Agreement or supplementing or qualifying any such action;
(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be full and
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<PAGE>
complete authorization and protection in respect of any action taken by you
hereunder in good faith and in accordance with such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom of
the Exchange Offer or as to the market value or decline or appreciation in
market value of any Old Securities or New Securities; and
(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your gross
negligence, willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless
you and your officers, directors, employees, agents and affiliates
(collectively, the "Indemnified Parties" and each an "Indemnified Party")
against any loss, liability or reasonable expense of any nature (including
reasonable attorneys' and other fees and expenses) incurred in connection
with the administration of the duties of the Indemnified Parties hereunder
in accordance with this Agreement; PROVIDED, HOWEVER, such Indemnified
Party shall notify the Company by letter, or by cable, telex or telecopier
confirmed by letter, of the written assertion of a claim against such
Indemnified Party, or of any action commenced against such Indemnified
Party, promptly after but in any event within 10 days of the date such
Indemnified Party shall have received any such written assertion of a claim
or shall have been served with a summons, or other legal process, giving
information as to the nature and basis of the claim; provided, however,
that failure to so notify the Company shall not relieve the Company of any
liability which it may otherwise have hereunder except such liability that
is a direct result of such Indemnified Party's failure to so notify the
Company. The Company shall be entitled to participate at its own expense
in the defense of any such claim or legal action and if the Company so
elects or if the Indemnified party in such notice to the Company so
directs, the Company shall assume the defense of any suit brought to
enforce any such claim. In the event the Company assumes such defense, the
Company shall not be liable for any fees and expenses thereafter incurred
by such Indemnified Party, other than such fees and expenses incurred as a
result of the Indemnified Party's need to have separate representation
because of an actual conflict of interest between such Indemnified Party
and the Company. The Company shall have no indemnity obligation with
respect to any settlement or other compromise of an otherwise indemnifiable
loss, liability or expense, if the settlement or other compromise is
effected without the prior written consent of the Company, which consent
shall not be unreasonably withheld or delayed if not adverse to the
Company's interests.
13. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the
Prospectus and the Tender Documents, Old Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration
Date.
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<PAGE>
14. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Company not to exchange any Old
Securities tendered shall be given (and confirmed in writing) by the
Company to you.
15. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
section of the Prospectus captioned "THE EXCHANGE OFFER" or any other
reason, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
Old Securities (or effect appropriate book transfer), together with any
related required documents and the Letters of Transmittal relating thereto
that are in your possession, to the persons who deposited them.
16. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by you by (a) first-
class certified mail, return receipt requested under a blanket surety bond
protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such certificates.
17. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service.
18. This Agreement and your appointment as the Exchange Agent shall
be construed and enforced in accordance with the laws of the State of New
York and shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of the parties hereto.
No other person shall acquire or have any rights under or by virtue of this
Agreement.
19. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough
of Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that
all claims in respect of such action or proceeding arising out of or
relating to this Agreement, shall be heard and determined in such a New
York State or federal court. The parties hereby consent to and grant to
any such court jurisdiction over the persons of such parties and over the
subject matter of any such dispute and agree that delivery or mailing of
any process or other papers in the manner provided herein, or in such other
manner as may be permitted by law, shall be valid and sufficient service
thereof.
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<PAGE>
20. This Agreement may not be modified, amended or supplemented
without an express written agreement executed by the parties hereto. Any
inconsistency between this Agreement, on the one hand, and the Prospectus
and the Tender Documents, on the other hand, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter,
except with respect to the duties, liabilities and indemnification of you
as Exchange Agent, which shall be controlled by this Agreement.
21. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
22. In case any provision of this Agreement 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.
23. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Old Securities or New
Securities, funds or property then held by you as Exchange Agent under this
Agreement.
24. All notices and communications hereunder shall be in writing, and
shall be deemed to be duly given if delivered or mailed first class
certified or registered mail, postage prepaid, or telecopied as follows:
If to Company:
and a copy to:
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street - 4th Floor
New York, NY 10006
Attn.:
Telephone:
Telecopy:
and a copy to:
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<PAGE>
or such other address or telecopy number as any of the above may have
furnished to the other parties in writing for such purposes.
25. This Letter Agreement and all of the obligations hereunder shall
be assumed by any and all successors and assigns of the Company.
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy
of this Agreement to the Company.
Very truly yours,
By:________________________________
Title:
Agreed to this ____ day of ______________, 199__
BANKERS TRUST COMPANY
By:______________________________
Title:
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