<PAGE>
As filed with the Securities and Exchange Commission on July 20, 1998
REGISTRATION NO. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OLD KENT FINANCIAL CORPORATION MICHIGAN 38-1986608
OLD KENT CAPITAL TRUST II DELAWARE 51-6508993
OLD KENT CAPITAL TRUST III DELAWARE 51-6508994
OLD KENT CAPITAL TRUST IV DELAWARE 51-6508995
(Exact name of each registrant (State or other (I.R.S. Employer
as specified in its charter) jurisdiction of Identification No.)
incorporation or
organization)
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
(616) 771-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ALBERT T. POTAS
SENIOR VICE PRESIDENT AND CONTROLLER
OLD KENT FINANCIAL CORPORATION
111 LYON STREET, N.W.
GRAND RAPIDS, MICHIGAN 49503
(616) 751-5000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
GORDON R. LEWIS
WARNER NORCROSS & JUDD LLP
900 OLD KENT BUILDING
111 LYON STREET, N.W.
GRAND RAPIDS, MICHIGAN 49503
(616) 752-2752
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
----------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
<PAGE>
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933 ("Securities Act"), other than Securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
===============================================================================
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT<F1> OFFERING PRICE<F1> FEE<F2>
<S> <C> <C> <C> <C>
Junior Subordinated
Deferrable Interest
Debentures of
Old Kent Financial
Corporation<F3> . . N/A
Capital Securities
of Old Kent Capital
Trusts II, III,
and IV (severally,
"Capital
Securities")<F3> . . N/A
Guarantees (the
"Guarantees") of
Capital Securities
of Old Kent
Capital Trusts
II, III, and IV by
Old Kent Financial
Corporation<F4><F5>. N/A
____________ ________ ____________ _______
TOTAL: $200,000,000 100% $200,000,000 $59,000
================================================================================
<FN>
<F1> Estimated solely for purposes of calculating the registration fee;
exclusive of accrued interest and dividends, if any.
<F2> Calculated pursuant to Rule 457.
<PAGE>
<F3> The Junior Subordinated Deferrable Interest Debentures of Old Kent
Financial Corporation will be purchased by Old Kent Capital Trust II,
Old Kent Capital Trust III and Old Kent Capital Trust IV with the
proceeds of the sale of the Capital Securities.
<F4> No separate consideration will be received for any Guarantee or any
other obligations.
<F5> This Registration Statement is deemed to cover the Junior Subordinated
Deferrable Interest Debentures of Old Kent Financial Corporation, the
rights of holders of the Junior Subordinated Deferrable Interest
Debentures of Old Kent Financial Corporation under the Indenture, the
rights of the holder of the Capital Securities of Old Kent Capital
Trust II, Old Kent Capital Trust III and Old Kent Capital Trust IV
under each Declaration, and the rights of holders of Capital
Securities under the Guarantees, which taken together constitute the
full, irrevocable and unconditional guarantee by Old Kent Financial
Corporation of all of the respective obligations of Old Kent Capital
Trust II, Old Kent Capital Trust III and Old Kent Capital Trust IV
under the Capital Securities.
</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>
SUBJECT TO COMPLETION, DATED JULY 20, 1998
PROSPECTUS $200,000,000
OLD KENT FINANCIAL CORPORATION
JUNIOR SUBORDINATED DEBENTURES
OLD KENT CAPITAL TRUST II
OLD KENT CAPITAL TRUST III
OLD KENT CAPITAL TRUST IV
CAPITAL SECURITIES FULLY AND UNCONDITIONALLY
GUARANTEED, AS DESCRIBED IN THIS PROSPECTUS, BY
OLD KENT FINANCIAL CORPORATION
-------------------------
Old Kent Financial Corporation, a Michigan corporation ("Old Kent"
or the "Corporation"), from time to time may offer in one or more series
its junior subordinated debentures (the "Junior Subordinated
Debentures"). As described in this Prospectus, the Junior Subordinated
Debentures will be unsecured and subordinate in right of payment to all
Indebtedness (as defined herein) of the Corporation. See "Description
of Junior Subordinated Debentures Subordination." If provided in an
accompanying Prospectus Supplement, Old Kent will have the right to
defer payments of interest on any series of Junior Subordinated
Debentures at any time and from time to time for up to the number of
consecutive interest payment periods (not to extend beyond the Stated
Maturity (as defined herein) of the Junior Subordinated Debentures) with
respect to each deferral period specified in the Prospectus Supplement.
Old Kent Capital Trust II, Old Kent Capital Trust III and Old Kent
Capital Trust IV, each a Delaware trust (each a "Trust" and
collectively, the "Trusts"), from time to time may severally offer
capital securities (the "Capital Securities") representing preferred
beneficial ownership interests in the issuing Trust. Old Kent will be
the owner of each Trust's common securities (the "Common Securities"
and, together with the Capital Securities, the "Trust Securities")
representing common beneficial ownership interests in the issuing Trust.
Concurrent with its issuance of its Capital Securities, the Trust will
invest the proceeds of that offering, together with the contributions it
receives from Old Kent in payment for the Trust's Common Securities, in
a series of Junior Subordinated Debentures (the "Corresponding Junior
Subordinated Debentures") with terms corresponding to the terms of the
issuing Trust's Capital Securities. Consequently, purchasers of a
series of Capital Securities will hold the Corresponding Junior
Subordinated Debentures indirectly through the related Trust, subject to
the rights, limitations and risks described in this Prospectus and in
the accompanying Prospectus Supplement. Pursuant to each Guarantee (as
defined herein), Old Kent will guarantee payment of distributions on the
<PAGE>
related series of Capital Securities out of moneys held by the issuing
Trust and payments on liquidation of the Trust or the redemption of
Capital Securities to the extent the issuing Trust has funds available
to make those distributions and payments.
SEE "RISK FACTORS" BEGINNING ON PAGE S-7 OF THE PROSPECTUS
SUPPLEMENT FOR CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN THE
CAPITAL SECURITIES.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF THE CAPITAL
SECURITIES OR THE JUNIOR SUBORDINATED DEBENTURES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
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.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ADEQUACY OF ACCURACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE
-------------------------
The date of this Prospectus is __________________, 1998.
The information in this Prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This Prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
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<PAGE>
OLD KENT FINANCIAL CORPORATION
The Corporation is a Michigan business corporation registered as
a bank holding company with headquarters in Grand Rapids, Michigan.
The Corporation conducts the business of commercial banking through
Old Kent Bank, its wholly owned principal banking subsidiary with
banking offices in Michigan and Illinois, and Old Kent Bank, National
Association, also a wholly owned subsidiary. The Corporation also
wholly owns, directly or indirectly, various operating nonbank
subsidiaries offering various financial and fiduciary products and
services through offices located in Michigan, Illinois and other
states. The Corporation's common stock is traded on The NASDAQ Stock
Market under the symbol OKEN.
The Corporation and its subsidiaries are extensively regulated
under both federal and state laws and regulations. Activities in
which the Corporation and its subsidiaries, including Old Kent Bank,
are presently engaged, or which they may undertake in the future, are
subject to certain statutory and regulatory restrictions described in
the reports filed by the Corporation with the Securities and Exchange
Commission (the "Commission") and incorporated in this Prospectus by
reference. See "Incorporation of Certain Documents by Reference."
The Corporation's principal executive office is located at One
Vandenberg Center, 111 Lyon Street, N.W., Grand Rapids, Michigan
49503. Its telephone number is (616) 771-5000.
THE TRUSTS
Each Trust is a statutory business trust formed under the
Delaware Business Trust Act, as amended, pursuant to (i) a declaration
of trust executed by the Corporation, as the sponsor of the Trust, and
the Delaware Trustee (as defined herein) of the Trust and (ii) a
certificate of trust filed with the Secretary of State of the State of
Delaware. Each declaration of trust will be amended and restated in
its entirety (each, as so amended and restated, a "Declaration")
substantially in the form filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Each Declaration
will be qualified as an indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). The Corporation will
acquire Common Securities in an aggregate liquidation amount equal to
at least 3% of the total assets of the related Trust. Each Trust will
use all the proceeds derived from the issuance of its Trust Securities
to purchase the Corresponding Junior Subordinated Debentures and,
accordingly, the assets of each Trust will consist solely of the
Corresponding Junior Subordinated Debentures. Each Trust exists for
the exclusive purpose of (i) issuing the Trust Securities representing
undivided beneficial ownership interests in the assets of the Trust,
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<PAGE>
(ii) investing the gross proceeds from the sale of the Trust
Securities in the Corresponding Junior Subordinated Debentures and
(iii) engaging in only those other activities necessary or incidental
thereto. No Declaration will limit the aggregate liquidation amount
of Trust Securities that may be issued thereunder, PROVIDED that
before issuing any additional Trust Securities, the Trustees will have
received an opinion of counsel to the effect that the issuance of the
additional Trust Securities will not affect the Trust's status as a
grantor trust for United States federal income tax purposes.
Under each Declaration, there will be initially five trustees
(the "Trustees") for each Trust. Three of the Trustees (the "Regular
Trustees") for each Trust will be individuals who are employees or
officers of or who are otherwise affiliated with the Corporation or
its subsidiaries. The fourth trustee for each Trust will be a
financial institution that is unaffiliated with the Corporation (the
"Property Trustee"). The fifth trustee for each Trust will be an
entity that maintains its principal place of business in the State of
Delaware (the "Delaware Trustee"). Initially for each Trust, Bankers
Trust Company will act as Property Trustee and its affiliate Bankers Trust
(Delaware) will act as Delaware Trustee until, in each case, removed or
replaced by the holder of the related Common Securities. Bankers
Trust Company also will act as trustee under each Guarantee (the
"Guarantee Trustee") and as trustee under the Indenture (the
"Indenture Trustee").
The Property Trustee will hold title to each series of
Corresponding Junior Subordinated Debentures for the benefit of the
related Trust and the holders of the related Trust Securities. The
Property Trustee also will have the power to exercise all rights,
powers and privileges with respect to the Corresponding Junior
Subordinated Debentures under the Indenture as the holder of the
Corresponding Junior Subordinated Debentures. In addition, the
Property Trustee will maintain exclusive control of a segregated non-
interest bearing bank account (the "Property Account") to hold all
payments made in respect of each series of Corresponding Junior
Subordinated Debentures for the benefit of the holders of the related
Trust Securities. The Guarantee Trustee will hold each Guarantee for
the benefit of the holders of the related Capital Securities. The
Corporation, as the holder of all the Common Securities, will have the
right to appoint, remove or replace any of the Trustees of each Trust
and to increase or decrease the number of Trustees, PROVIDED that
there will always be a Delaware Trustee, a Property Trustee and a
Regular Trustee.
Under the Indenture, the Corporation, as borrower, has agreed to
pay all fees and expenses related to the organization and operations
of each Trust (including any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
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<PAGE>
imposed by the United States or any other domestic taxing authority
upon each Trust) and the offering of the Capital Securities and be
responsible for all debts and obligations of each Trust (other than
with respect to the Capital Securities and Common Securities). See
"Description of Capital Securities Expenses and Taxes."
For so long as the Capital Securities of a Trust remain
outstanding, the Corporation will covenant (i) to maintain directly or
indirectly 100% ownership of that Trust's Common Securities, (ii) to
use its reasonable efforts to ensure that the Trust (a) remains a
statutory business trust and does not voluntarily dissolve, wind-up,
liquidate or terminate, except as permitted by the related
Declaration, and (b) will not be an "investment company" for purposes
of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and (iii) 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 United States
federal income tax purposes.
The rights of the holders of the Capital Securities of a Trust,
including economic rights, rights to information and voting rights,
are set forth in the related Declaration and the Trust Indenture Act.
See "Description of Capital Securities." Each Declaration and
Guarantee also incorporate by reference the terms of the Trust
Indenture Act.
The location of the principal executive office of each Trust is
c/o Old Kent Financial Corporation, One Vandenberg Center, 111 Lyon
Street, N.W., Grand Rapids, MI 49503, Attention: Secretary, telephone
number (616) 771-5272.
It is anticipated that each Trust will not be subject to the
reporting requirements under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
REGULATORY TREATMENT
The Corporation is required by the Federal Reserve to maintain
certain levels of capital for bank regulatory purposes. The
Corporation expects that the Capital Securities will be treated as
Tier 1 capital of the Corporation for those purposes.
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<PAGE>
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures will be issuable in one or
more series under an Indenture, as supplemented or amended from time
to time (as supplemented or amended, the "Indenture"), between the
Corporation and Bankers Trust Company as Indenture Trustee. This
summary of certain provisions of the Junior Subordinated Debentures
and the Indenture does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the Indenture, the form
of which has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part, and the Trust Indenture Act. The
Indenture is qualified under the Trust Indenture Act. Wherever
defined terms of the Indenture are referred to in this Prospectus or
any Prospectus Supplement, those defined terms are incorporated herein
and therein by reference.
GENERAL
Concurrently with the issuance of its Capital Securities, the
issuing Trust will invest the proceeds thereof, together with the
consideration paid by the Corporation for the Trust's Common
Securities, in the Corresponding Junior Subordinated Debentures issued
by the Corporation.
Each series of Corresponding Junior Subordinated Debentures will
be in the principal amount equal to the aggregate liquidation amount
of the related Capital Securities plus the Corporation's concurrent
investment in the related Common Securities. It is anticipated that,
until the liquidation, if any, of the related Trust, the Corresponding
Junior Subordinated Debentures will be held in the name of the
Property Trustee in trust for the benefit of the holders of the Trust
Securities.
Each series of Junior Subordinated Debentures will be unsecured,
will rank PARI-PASSU with all other series of Junior Subordinated
Debentures and will rank junior and be subordinate in right of payment
to all Indebtedness of the Corporation. The Indenture does not limit
the incurrence or issuance of other secured or unsecured debt of the
Corporation, whether under the Indenture or any existing or other
indenture that the Corporation has entered into or may enter into in
the future or otherwise. See " Subordination."
The Indenture does not limit the aggregate principal amount of
Junior Subordinated Debentures that may be issued thereunder.
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<PAGE>
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 Corporation that may
adversely affect holders of the Junior Subordinated Debentures.
The Junior Subordinated Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the Indenture or
a resolution of the Corporation's Board of Directors or a committee
thereof.
The applicable Prospectus Supplement will describe the following
terms of the series of Junior Subordinated Debentures of a particular
Trust: (1) the title of the Junior Subordinated Debentures; (2) any
limit upon the aggregate principal amount of the Junior Subordinated
Debentures; (3) the date or dates on which the principal of the Junior
Subordinated Debentures is payable (the "Stated Maturity") or the
method of determination thereof; (4) the rate or rates, if any, at
which the Junior Subordinated Debentures will bear interest, the dates
on which any such interest will be payable (the "Interest Payment
Dates"), the right, if any, of the Corporation to defer or extend an
Interest Payment Date, and the record dates for any interest payable
on any Interest Payment Date (the "Regular Record Dates") or the
method by which any of the foregoing will be determined; (5) the place
or places where, subject to the terms of the Indenture as described
below under " Payment and Paying Agents," the principal of, premium,
if any, and interest, if any, on the Junior Subordinated Debentures
will be payable and where, subject to the terms of the Indenture as
described below under " Denominations, Registration and Transfer," the
Junior Subordinated Debentures may be presented for registration of
transfer or exchange and the place or places where notices and demands
to or upon the Corporation in respect of the Junior Subordinated
Debentures and the Indenture may be made ("Place of Payment"); (6) any
period or periods within which, or date or dates on which, the price
or prices at which and the terms and conditions upon which Junior
Subordinated Debentures may be redeemed, in whole or in part, at the
option of the Corporation or a holder thereof; (7) the obligation or
the right, if any, of the Corporation or a holder thereof to redeem,
purchase or repay the Junior Subordinated Debentures and the period or
periods within which, the price or prices at which, the currency or
currencies (including currency unit or units) in which and the other
terms and conditions upon which the Junior Subordinated Debentures
will be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation; (8) the denominations in which any Junior
Subordinated Debentures will be issuable if other than denominations
of $1,000.00 and any integral multiple thereof; (9) if other than in
U.S. Dollars, the currency or currencies (including currency unit or
units) in which the principal of, premium, if any, and interest, if
any, on the Junior Subordinated Debentures will be payable, or in
-7-
<PAGE>
which the Junior Subordinated Debentures will be denominated; (10) any
additions, modifications or deletions in the events of default under
the Indenture or covenants of the Corporation specified in the
Indenture with respect to the Junior Subordinated Debentures; (11) if
other than the principal amount thereof, the portion of the principal
amount of Junior Subordinated Debentures that will be payable upon
declaration of acceleration of the maturity thereof; (12) any
additions or changes to the Indenture with respect to the Junior
Subordinated Debentures that will be necessary to permit or facilitate
their issuance in bearer form, registrable or not registrable as to
principal, and with or without interest coupons; (13) any index or
indices used to determine the amount of payments of principal of and
premium, if any, on the Junior Subordinated Debentures and the manner
in which those amounts will be determined; (14) the terms and
conditions relating to the issuance of a temporary global security
representing all of the Junior Subordinated Debentures and the
exchange of the temporary global security for definitive Junior
Subordinated Debentures; (15) subject to the terms described herein
under " Global Junior Subordinated Debentures," whether the Junior
Subordinated Debentures of that series will be issued in whole or in
part in the form of one or more global securities and, in such case,
the depositary for the global securities, which depositary will be a
clearing agency registered under the Exchange Act; (16) the
appointment of any paying agent or agents; (17) the terms and
conditions of any obligation or right of the Corporation or a holder
to convert or exchange that series of Junior Subordinated Debentures
into Junior Subordinated Debentures of another series, into Capital
Securities or into other securities; (18) the form of Declaration and
Guarantee Agreement, if applicable; (19) the relative degree, if any,
to which the Junior Subordinated Debentures of that series will be
senior or subordinated to other series of the Junior Subordinated
Debentures or other indebtedness of the Corporation in right of
payment, whether the other series of Junior Subordinated Debentures or
other indebtedness are outstanding or not; and (20) any other terms of
that series of Junior Subordinated Debentures not inconsistent with
the provisions of the Indenture.
Junior Subordinated Debentures may be sold at a substantial
discount below their stated principal amount, bearing no interest or
interest at a rate which at the time of issuance is below market
rates. Certain United States federal income tax consequences and
special considerations applicable to any such Junior Subordinated
Debentures will be described in the applicable Prospectus Supplement.
If the purchase price of any of the Junior Subordinated
Debentures is payable in one or more foreign currencies or currency
units or if any Junior Subordinated Debentures are denominated in one
or more foreign currencies or currency units or if the principal of,
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<PAGE>
premium, if any, or interest on any Junior Subordinated Debentures is
payable in one or more foreign currencies or currency units, the
restrictions, elections, certain United States federal income tax
consequences, specific terms and other information with respect to
such series of Junior Subordinated Debentures and such foreign
currency or currency units will be set forth in the applicable
Prospectus Supplement.
If any index is used to determine the amount of payments of
principal of, premium if any, or interest on any series of Junior
Subordinated Debentures, special United States federal income tax,
accounting and other considerations applicable to that series will be
described in the applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus
Supplement, each series of Junior Subordinated Debentures will be
issuable only in registered form without coupons in denominations of
$1,000.00 and any integral multiple thereof. Junior Subordinated
Debentures of any series will be exchangeable for other Junior
Subordinated Debentures of the same series, of any authorized
denominations, of a like aggregate principal amount, of the same
original issue date and Stated Maturity and bearing the same interest
rate.
Junior Subordinated Debentures may be presented for exchange as
provided above, and may be presented for registration of transfer
(with the form of transfer endorsed thereon, or a satisfactory written
instrument of transfer, duly executed), at the office of the
appropriate securities registrar or at the office of any transfer
agent designated by the Corporation for that purpose with respect to
that series of Junior Subordinated Debentures and referred to in the
applicable Prospectus Supplement, without service charge and upon
payment of any taxes and other governmental charges as described in
the Indenture. The Corporation will appoint the Indenture Trustee as
securities registrar under the Indenture. If the applicable
Prospectus Supplement refers to any transfer agents (in addition to
the securities registrar) initially designated by the Corporation with
respect to a series of Junior Subordinated Debentures, the Corporation
may at any time rescind the designation of any of those transfer
agents or approve a change in the location through which any of those
transfer agents acts, PROVIDED that the Corporation maintains a
transfer agent in each Place of Payment for that series of Junior
Subordinated Debentures. The Corporation may at any time designate
additional transfer agents with respect to any series of Junior
Subordinated Debentures.
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<PAGE>
In the event of any redemption of a series of Junior Subordinated
Debentures, neither the Corporation nor the Indenture Trustee will be
required to (i) issue, register the transfer of or exchange the Junior
Subordinated Debentures during a period beginning at the opening of
business 15 days before the day of selection for redemption of the
Junior Subordinated Debentures and ending at the close of business on
the day of mailing of the relevant notice of redemption or
(ii) transfer or exchange any of the Junior Subordinated Debentures so
selected for redemption, except, in the case of any Junior
Subordinated Debentures being redeemed in part, any portion thereof
not to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of any series may be issued in
whole or in part in the form of one or more global Junior Subordinated
Debentures (each, a "Global Junior Subordinated Debenture") that will
be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to that series.
Except as provided otherwise in the applicable Prospectus Supplement,
the Depositary Trust Corporation ("DTC"), or any successor, will act
as Depositary. Global Junior Subordinated Debentures may be issued
only in fully registered form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the
individual Junior Subordinated Debentures that it represents a Global
Junior Subordinated Debenture may not be transferred except as a whole
by the Depositary for that Global Junior Subordinated Debenture 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 nominee to a successor Depositary or any nominee of the
successor.
The specific terms of the depositary arrangement with respect to
a series of Junior Subordinated Debentures will be described in the
applicable Prospectus Supplement. The Corporation anticipates that
the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a Global Junior Subordinated Debenture, and
the deposit of the Global Junior Subordinated Debenture with or on
behalf of the Depositary, the Depositary for the Global Junior
Subordinated Debenture or its nominee will credit, on its book-entry
registration and transfer system, the respective principal amounts of
the individual Junior Subordinated Debentures represented by the
Global Junior Subordinated Debenture to the accounts of persons that
have accounts with the Depositary ("Participants"). The accounts will
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be designated by the dealers, underwriters or agents with respect to
the Junior Subordinated Debentures or by the Corporation if the Junior
Subordinated Debentures are offered and sold directly by the
Corporation. Ownership of beneficial interests in a Global Junior
Subordinated Debenture will be limited to Participants or persons that
may hold interests through Participants. Ownership of beneficial
interests in the Global Junior Subordinated Debenture will be shown
on, and the transfer of that ownership will be effected only through,
records maintained by the applicable Depositary or its nominee (with
respect to interests of Participants) and the records of Participants
(with respect to interests of persons who hold through Participants).
The laws of some states require that certain purchasers of securities
take physical delivery of such securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a
Global Junior Subordinated Debenture.
So long as the Depositary for a Global Junior Subordinated
Debenture, or its nominee, is the registered owner of the Global
Junior Subordinated Debenture, the Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Junior
Subordinated Debentures represented by the Global Junior Subordinated
Debenture for all purposes under the Indenture governing the Junior
Subordinated Debentures. Except as provided below, owners of
beneficial interests in a Global Junior Subordinated Debenture will
not be entitled to have any of the individual Junior Subordinated
Debentures of the series represented by the Global Junior Subordinated
Debenture registered in their names, will not receive or be entitled
to receive physical delivery of any Junior Subordinated Debentures of
that series in definitive form and will not be considered the owners
or holders thereof under the Indenture.
Payments of principal of, premium, if any, and interest on
individual Junior Subordinated Debentures represented by a Global
Junior Subordinated Debenture registered in the name of a Depositary
or its nominee will be made to the Depositary or its nominee, as the
case may be, as the registered owner of the Global Junior Subordinated
Debenture representing the Junior Subordinated Debentures. Neither
the Corporation, the Indenture Trustee, any paying agent, nor the
securities registrar for such Junior Subordinated Debentures will have
any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of
the Global Junior Subordinated Debenture representing such Junior
Subordinated Debentures or for maintaining, supervising or reviewing
any records relating to the beneficial ownership interests.
The Corporation expects that the Depositary for a series of
Junior Subordinated Debentures or its nominee, upon receipt of any
payment of principal, premium, if any, or interest in respect of a
permanent Global Junior Subordinated Debenture representing any of
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that series of Junior Subordinated Debentures, immediately will credit
Participants' accounts with payments in amount proportionate to their
respective beneficial interest in the principal amount of that Global
Junior Subordinated Debenture as shown on the records of the
Depositary or its nominee. The Corporation also expects that payments
by Participants to owners of beneficial interests in the Global Junior
Subordinated Debenture held through Participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or
registered in "street name." These payments will be the
responsibility of the Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depositary for a series of Junior Subordinated
Debentures is at any time unwilling, unable or ineligible to continue
as depositary and a successor depositary is not appointed by the
Corporation within 90 days or there has occurred and is continuing an
Indenture Event of Default (as defined herein) with respect to that
series of Junior Subordinated Debentures, the Corporation will issue
individual Junior Subordinated Debentures of that series in exchange
for the Global Junior Subordinated Debenture representing that series
of Junior Subordinated Debentures. In addition, the Corporation may
at any time and in its sole discretion, subject to any limitations
described in the applicable Prospectus Supplement, determine not to
have Junior Subordinated Debentures of any series represented by one
or more Global Junior Subordinated Debentures and, in that event, will
issue certificated Junior Subordinated Debentures of that series in
exchange for the Global Junior Subordinated Debenture. Further, if
the Corporation so specifies with respect to the Junior Subordinated
Debentures of a series, an owner of a beneficial interest in a Global
Junior Subordinated Debenture representing Junior Subordinated
Debentures of that series may, on terms acceptable to the Corporation,
the Indenture Trustee and the Depositary for the Global Junior
Subordinated Debenture, receive certificated Junior Subordinated
Debentures of that series in exchange for the beneficial interests,
subject to any limitations described in the applicable Prospectus
Supplement. In this instance, an owner of a beneficial interest in a
Global Junior Subordinated Debenture will be entitled to physical
delivery of certificated Junior Subordinated Debentures of the series
represented by the Global Junior Subordinated Debenture equal in
principal amount to the beneficial interest and to have the Junior
Subordinated Debentures registered in its name. Individual Junior
Subordinated Debentures of the series so issued will be issued in
denominations, unless otherwise specified by the Corporation, of
$1,000.00 and integral multiples thereof.
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OPTION TO EXTEND INTEREST PAYMENT PERIOD
If specified in the applicable Prospectus Supplement, the
Corporation will have the right under the Indenture to defer the
payment of interest on any series of Junior Subordinated Debentures at
any time or from time to time for any number of consecutive interest
payment periods that may be specified in the applicable Prospectus
Supplement (each, an "Extension Period"), subject to any terms,
conditions and covenants specified in that Prospectus Supplement,
PROVIDED that no Indenture Event of Default has occurred and is
continuing, and, PROVIDED FURTHER, that no Extension Period may extend
beyond the Stated Maturity of that series of Junior Subordinated
Debentures. At the end of the Extension Period, the Corporation must
pay all interest then accrued and unpaid (together with interest
thereon to the extent permitted by applicable law). During an
Extension Period, interest will continue to accrue. Certain United
States federal income tax consequences and special considerations
applicable to a series of Junior Subordinated Debentures whose
interest is deferrable as provided above will be described in the
applicable Prospectus Supplement.
REDEMPTION
Unless otherwise indicated in the applicable Prospectus
Supplement, Junior Subordinated Debentures will not be subject to any
sinking fund.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporation may, at its option and subject to the
receipt of any necessary prior approval of the Federal Reserve, redeem
the Junior Subordinated Debentures of any series in whole at any time
or in part from time to time. If the Junior Subordinated Debentures
of any series are so redeemable only on or after a specified date or
upon the satisfaction of additional conditions, the applicable
Prospectus Supplement will specify the date or describe the
conditions.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Special Event (as defined herein) in respect of a
Trust has occurred and is continuing, the Corporation may, at its
option and subject to receipt of any necessary prior approval of the
Federal Reserve, redeem the Corresponding Junior Subordinated
Debentures at any time within 120 days of the occurrence of the
Special Event, in whole but not in part, subject to the provisions of
the Indenture and whether or not the Corresponding Junior Subordinated
Debentures are then otherwise redeemable at the option of the
Corporation. The redemption price for any Corresponding Junior
Subordinated Debentures (the "Redemption Price") will be set forth in
the applicable Prospectus Supplement. For so long as the Trust is the
holder of all the outstanding Corresponding Junior Subordinated
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Debentures of that series, the proceeds of the redemption will be used
by the Trust to redeem the related Trust Securities in accordance with
their terms. The Corporation may not redeem a series of Corresponding
Junior Subordinated Debentures in part unless all accrued and unpaid
interest has been paid in full on all outstanding Corresponding Junior
Subordinated Debentures of that series for all interest periods
terminating on or prior to the date of redemption (the "Redemption
Date").
If a series of Corresponding Junior Subordinated Debentures are
redeemed, the related Trust must redeem its Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount
of the series of Corresponding Junior Subordinated Debentures so
redeemed. See "Description of Capital Securities Redemption or
Exchange."
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 Corporation defaults in payment of the Redemption Price, on
and after the Redemption Date interest ceases to accrue on the Junior
Subordinated Debentures or portions thereof called for redemption.
CERTAIN COVENANTS OF THE CORPORATION
Under the Indenture, if and so long as the related Trust is the
holder of all of the Corresponding Junior Subordinated Debentures, the
Corporation, 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 over the Trust but excluding obligations under the
Trust's Trust Securities.
The Corporation covenants, as to each series of Junior
Subordinated Debentures, that it will not, and will not permit any
subsidiary of the Corporation 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 Corporation'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 Corporation
that rank PARI PASSU with or junior in interest to the Junior
Subordinated Debentures of that series or make any guarantee payments
with respect to any guarantee by the Corporation of the debt
securities of any subsidiary of the Corporation if such guarantee
ranks PARI PASSU with or junior in interest to the Junior Subordinated
Debentures of that series (other than, in each such case, (a)
repurchases, redemptions or other acquisitions of shares of capital
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stock of the Corporation 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 Corporation's capital stock (or any capital stock of a
subsidiary of the Corporation) for any other class or series of the
Corporation's capital stock or of any class or series of the
Corporation's indebtedness for any class or series of the
Corporation's capital stock, (c) the purchase of fractional interests
in shares of the Corporation'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 has occurred any
event of which the Corporation 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 the Junior Subordinated
Debentures of that series and (2) in respect of which the Corporation
has not taken reasonable steps to cure, (y) the Corporation is in
default with respect to its payment of any obligations under the
related Guarantee or (z) the Corporation has given notice of its
election of an Extension Period as provided in the Indenture and has
not rescinded the notice, or the Extension Period, or any extension
thereof, is continuing.
SUBORDINATION
Each series of Junior Subordinated Debentures 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 Corporation 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 Corporation, the holders of Indebtedness will first
be entitled to receive payment in full of principal of, premium, if
any, and interest, if any, on the Indebtedness before the holders of
any series of Corresponding Junior Subordinated Debentures or the
Property Trustee on behalf of the holders of the related Capital
Securities will be entitled to receive or retain any payment in
respect of the principal of, premium, if any, or interest, if any, on
the Corresponding Junior Subordinated Debentures; PROVIDED, HOWEVER,
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that holders of Indebtedness will not be entitled to receive payment
of any such amounts to the extent the holders would be required by the
subordination provisions of the Indebtedness to pay the amounts over
to the obligees on trade accounts payable or other liabilities arising
in the ordinary course of the Corporation's business.
In the event of the acceleration of the maturity of any series of
Junior Subordinated Debentures, the holders of all Indebtedness
outstanding at the time of the 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 of that series 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 will not be entitled to receive
payment of any such amounts to the extent that the holders would be
required by the subordination provisions of the Indebtedness to pay
the amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Corporation's
business.
No payments on account of principal, premium, if any, or
interest, if any, in respect of any series of Junior Subordinated
Debentures may be made if there has occurred and is 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 is pending with
respect to any such default.
"Indebtedness" means, whether recourse is to all or a portion of
the assets of the Corporation and whether or not contingent: (i) every
obligation of the Corporation for money borrowed; (ii) every
obligation of the Corporation 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 Corporation's 6-5/8% Subordinated Notes due November 15,
2005; (iii) every reimbursement obligation of the Corporation with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of the Corporation; (iv) every
obligation of the Corporation 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 Corporation; (vi)
every obligation of the Corporation 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
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of which, in either case, the Corporation has guaranteed or is
responsible or liable, directly or indirectly, as obligor or
otherwise; PROVIDED that "Indebtedness" does 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 Junior Subordinated Debentures, (b) any indebtedness
of the Corporation 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 Corporation, (c) any
indebtedness of the Corporation to any of its subsidiaries, or (d) any
indebtedness of the Corporation to any employee of the Corporation.
The Indenture places no limitation on the amount of additional
Indebtedness that may be incurred by the Corporation or any
indebtedness or other liabilities that may be incurred by the
Corporation's subsidiaries.
INDENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following
described events with respect to any series of Junior Subordinated
Debentures that has occurred and is continuing constitutes an
"Indenture Event of Default" with respect to that series of Junior
Subordinated Debentures:
(i) failure for 30 days to pay any interest on the series of
Junior Subordinated Debentures 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 series of 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 Corporation from the Indenture Trustee or the
holders of at least 25% in aggregate outstanding principal amount of
the series of outstanding Junior Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization
of the Corporation.
The holders of a majority in aggregate outstanding principal
amount of the series 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 the series of Junior Subordinated Debentures may declare the
principal due and payable immediately upon an Indenture Event of
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Default, and, should the Indenture Trustee or the holders of the
series of Junior Subordinated Debentures fail to make the declaration,
the holders of at least 25% in aggregate liquidation amount of the
related Capital Securities will have the right. The holders of a
majority in aggregate outstanding principal amount of the series of
Junior Subordinated Debentures may annul the declaration and waive the
default if the default (other than the non-payment of the principal of
the series 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 the series of Junior Subordinated Debentures
fail to annul the declaration and waive the default, the holders of a
majority in aggregate liquidation amount of the related Capital
Securities will have the 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 Debenture; PROVIDED,
HOWEVER, that the waiver or modification to the waiver will not be
effective until the holders of a majority in liquidation preference of
the related Capital Securities have consented to the waiver or
modification to the waiver; PROVIDED, FURTHER, that if the consent of
the holder of each of the outstanding Junior Subordinated Debentures
is required, the waiver will not be effective until each holder of the
related Capital Securities has consented to the waiver. The
Corporation is required to file annually with the Indenture Trustee a
certificate as to whether or not the Corporation is in compliance with
all the conditions and covenants applicable to it under the Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If an Indenture Event of Default has occurred and is continuing
and the event is attributable to the failure of the Corporation to pay
interest or principal on a series of Corresponding Junior Subordinated
Debentures on the date the interest or principal is otherwise payable,
a holder of related Capital Securities may institute legal proceedings
directly against the Corporation (a "Direct Action") for payment. The
Corporation 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 related Capital Securities. Notwithstanding any
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payment made to the holder of Capital Securities by the Corporation in
connection with a Direct Action, the Corporation will remain obligated
to pay the principal of or interest on the Corresponding Junior
Subordinated Debentures held by the Trust or the Property Trustee and
the Corporation will be subrogated to the rights of the holder of the
Capital Securities with respect to payments on the Capital Securities
to the extent of any payments made by the Corporation to the 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
Corresponding Junior Subordinated Debentures except to the extent
described under "Description of Capital Securities Trust Enforcement
Events.".
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
Under the Indenture, the Corporation agrees not to consolidate
with or merge into any other Person (as defined in the Indenture) or
convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless (i) in case the Corporation
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 the
successor Person (if other than the Corporation) expressly assumes the
Corporation's obligations under the Junior Subordinated Debentures,
(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, has happened and is
continuing, (iii) if at the time any Capital Securities are
outstanding, the transaction is permitted under the related
Declaration and related Guarantee and does not give rise to any breach
or violation of the related Declaration or related Guarantee, (iv) any
such lease provides 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 Corporation and the Indenture Trustee may,
without the consent of the holders of any series of Junior
Subordinated Debentures, amend, 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 any series
of Junior Subordinated Debentures) and qualifying, or maintaining the
qualification of, the Indenture under the Trust Indenture Act. The
Indenture contains provisions permitting the Corporation and the
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Indenture Trustee, with the consent of the holders of not less than a
majority in principal amount of each outstanding series of Junior
Subordinated Debentures affected, to modify the Indenture in a manner
affecting the rights of the holders of such series of Junior
Subordinated Debentures; PROVIDED that no such modification may,
without the consent of the holder of each outstanding Junior
Subordinated Debenture so affected, (i) change the Stated Maturity of
any series of Junior Subordinated Debentures (except as otherwise
specified in the applicable Prospectus Supplement), or reduce the
principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon (except as otherwise specified in the
applicable Prospectus Supplement) or (ii) reduce the percentage of
principal amount of Junior Subordinated Debentures of any series, the
holders of which are required to consent to any such modification of
the Indenture; PROVIDED FURTHER that, in the case of Corresponding
Junior Subordinated Debentures, so long as any related Capital
Securities remain outstanding, no such modification may be made that
adversely affects the holders of the related 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 will be effective, without the prior
consent of the holders of at least a majority of the aggregate
liquidation amount of the outstanding related Capital Securities
unless and until the principal of the Corresponding Junior
Subordinated Debentures and all accrued and unpaid interest thereon
have been paid in full and certain other conditions are met.
In addition, the Corporation and the Indenture Trustee may
execute, without the consent of any holder of Junior Subordinated
Debentures, any supplemental indenture for the purpose of creating any
new series of Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Indenture provides that the Corporation, at the Corporation's
option, (i) will be discharged from any and all obligations in respect
of any series of 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 third
paragraph under " Certain Covenants of the Corporation" above), in
each case if the Corporation deposits, in trust with the Indenture
Trustee, money or U.S. Government Obligations (as defined in the
Indenture) 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, premium, if any, and
interest on such series of Junior Subordinated Debentures on the dates
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the payments are due in accordance with the terms of such series of
Junior Subordinated Debentures. To exercise this option, the
Corporation 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 affected series of Junior Subordinated
Debentures to recognize income, gain or loss for United States federal
income tax purposes.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable Prospectus
Supplement, the Junior Subordinated Debentures of any series may be
convertible or exchangeable into Junior Subordinated Debentures of
another series, into Capital Securities or into other securities. The
specific terms on which Junior Subordinated Debentures of any series
may be so converted or exchanged will be set forth in the applicable
Prospectus Supplement. These terms may include provisions for
conversion or exchange, either mandatory, at the option of the holder,
or at the option of the Corporation, in which case the amount or
number of Junior Subordinated Debentures, Capital Securities or other
securities, as the case may be, to be received by the holders of
Junior Subordinated Debentures of that series would be calculated as
of a time and in the manner stated in the applicable Prospectus
Supplement.
DISTRIBUTIONS OF JUNIOR SUBORDINATED DEBENTURES; BOOK-ENTRY ISSUANCE
Under certain circumstances involving the termination of a Trust,
the Corresponding Junior Subordinated Debentures may be distributed to
the holders of the Trust's 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 Corresponding Junior Subordinated
Debentures initially will be issued in the form of global securities
and certificated securities. It is anticipated that the depositary
arrangements for the 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
Unless otherwise indicated in the applicable Prospectus
Supplement, the principal of and interest on each series of Junior
Subordinated Debentures will be payable at the office or agency of the
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paying agent in the United States maintained for that purpose and at
any other office or agency maintained by the Corporation for that
purpose in the coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the
Corporation payment of interest may be made (i) by check mailed to the
address of the Person entitled thereto as the address appears in the
security register for the Junior Subordinated Debentures or (ii) by
wire transfer in immediately available funds at the place and to the
account designated by the Person entitled thereto as specified in the
security register, PROVIDED that proper transfer instructions have
been received by the applicable record date.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporation's principal subsidiary bank, Old Kent
Bank, initially will act as paying agent with respect to each series
of Junior Subordinated Debentures. The Corporation 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 Corporation will be required to
maintain a paying agent at the Place of Payment, and except that if
Corresponding Junior Subordinated Debentures are distributed to the
holders of the related Capital Securities in liquidation of those
holders' interests in the related Trust, the Indenture Trustee will
act as the paying agent.
Any moneys deposited with the Indenture Trustee or any paying
agent, or then held by the Corporation in trust, for the payment of
the principal of, premium, if any, or interest on any series of Junior
Subordinated Debentures and remaining unclaimed for one year after
such principal, premium, if any, or interest has become due and
payable will, at the request of the Corporation, be repaid to the
Corporation and the holder of those Junior Subordinated Debentures
will thereafter look, as a general unsecured creditor, only to the
Corporation for payment thereof.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be
governed by and construed in accordance with the laws of the State of
New York without regard to the conflicts of laws principles thereof.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The Indenture Trustee will have all the duties and
responsibilities specified with respect to an indenture trustee under
the Trust Indenture Act. Subject to those provisions, the Indenture
Trustee is under no obligation to exercise any of the powers vested in
it by the Indenture at the request of any holder of Junior
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Subordinated Debentures, unless offered reasonable indemnity by the
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.
Bankers Trust Company, the Indenture Trustee, also serves as
trustee under other indentures pursuant to which certain junior
subordinated debentures of the Corporation are outstanding. In
addition, the Corporation and its affiliates maintain accounts with
and/or conduct other banking transactions with Bankers Trust Company.
DESCRIPTION OF CAPITAL SECURITIES
The Capital Securities will represent undivided beneficial
ownership interests in the assets of a particular 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 that Trust. This summary
of certain provisions of the Capital Securities and each Declaration
does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, each Declaration, including the
definitions therein of certain terms, and the Trust Indenture Act.
Wherever defined terms of a Declaration are referred to in this
Prospectus or in a Prospectus Supplement, the defined terms are
incorporated herein or therein by reference. The form of Declaration
of each Trust has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Each of the Trusts
is a legally separate entity and the assets of one Trust are not
available to satisfy the obligations of any of the other Trusts.
GENERAL
The Capital Securities of a Trust will rank PARI PASSU, and
payments will be made thereon PRO RATA, with the Common Securities of
that Trust except as described under " Subordination of Common
Securities." Legal title to the Corresponding Junior Subordinated
Debentures will be held by the Property Trustee in trust for the
benefit of the holders of the related Trust Securities. Each
Guarantee Agreement executed by the Corporation for the benefit of the
holders of a Trust's Capital Securities (the "Guarantee" for those
Capital Securities) will be a guarantee on a subordinated basis with
respect to the related Capital Securities but will not guarantee
payment of Distributions or amounts payable on redemption or
liquidation of the Capital Securities when the related Trust does not
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have sufficient funds available to make the payments. See "Description
of Guarantees." The Corporation's obligations under each Guarantee,
taken together with its obligations under the Corresponding Junior
Subordinated Debentures, the related Declaration and the Indenture,
including its obligation to pay all costs, expenses and liabilities of
each Trust (other than with respect to the Trust's Capital
Securities), constitute a full and unconditional guarantee of all of
each Trust's obligations under its Capital Securities.
Holders of the Capital Securities will have no preemptive or
similar rights.
DISTRIBUTIONS
Distributions on the Capital Securities will be cumulative, will
accumulate from the date of original issuance and will be payable on
the dates specified in the applicable Prospectus Supplement. Each
Trust's Capital Securities represent preferred beneficial interests in
that Trust, and Distributions on each Capital Security will be payable
at the rate specified in the Prospectus Supplement relating to those
Capital Securities. Unless otherwise specified in the applicable
Prospectus Supplement, the amount of Distributions payable for any
period less than a full Distribution period will be computed on the
basis of a 360-day year of twelve 30-day months and the actual days
elapsed in a partial month in a period. The amount of any
Distribution payable for any full Distribution period will be computed
by dividing the per annum rate by the number of Distribution periods
that together constitute a full twelve months. Distributions to which
holders of Capital Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the
applicable Prospectus Supplement.
Distributions on a Trust's Capital Securities will be paid on the
dates payable to the extent that the Trust has funds available for the
payment of the Distributions. The revenue of a Trust available for
distribution to holders of its Capital Securities will be limited to
payments under the Corresponding Junior Subordinated Debentures. See
"Description of Junior Subordinated Debentures." If the Corporation
does not make interest payments on the Corresponding Junior
Subordinated Debentures, the Property Trustee will not have funds
available to pay Distributions on the related Capital Securities.
If provided in the applicable Prospectus Supplement, the
Corporation 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 any series of Corresponding Junior Subordinated
Debentures at any time or from time to time for the Extension Period
described in the applicable Prospectus Supplement, PROVIDED that no
Extension Period may extend beyond the Stated Maturity of the
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Corresponding Junior Subordinated Debentures. See "Description of
Junior Subordinated Debentures Option to Extend Interest Payment
Period." The Indenture permits multiple Extension Periods of varying
lengths throughout the term of the Corresponding Junior Subordinated
Debentures. As a consequence of any extension, Distributions on the
related Capital Securities will be deferred by the Trust during the
Extension Period. During any Extension Period, the Corporation may
not, and may not permit any subsidiary of the Corporation 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
Corporation'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 Corporation that rank PARI PASSU with or junior
to the Corresponding Junior Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Corporation of
the debt securities of any subsidiary of the Corporation if such
guarantee ranks PARI PASSU with or junior in interest to the
Corresponding Junior Subordinated Debentures (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation 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 Corporation's capital stock (or any capital stock of a
subsidiary of the Corporation) for any other class or series of the
Corporation's capital stock or of any class or series of the
Corporation's indebtedness for any class or series of the
Corporation's capital stock, (c) the purchase of fractional interests
in shares of the Corporation'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 Extension
Period, the Corporation may further extend the Extension Period,
provided that no Extension Period may extend beyond the Stated
Maturity of the Corresponding Junior Subordinated Debentures. Upon the
termination of any Extension Period and the payment of all amounts
then due on any Interest Payment Date, the Corporation may elect to
begin a new Extension Period subject to the foregoing requirements.
See "Description of Junior Subordinated Debentures Option to Extend
Interest Payment Period."
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If the date on which Distributions are payable on the Capital
Securities of any Trust is not a Business Day, then payment of the
Distributions payable on that 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, the payment will be made
on the immediately preceding Business Day with the same force and
effect as if made on the date the payment was originally payable (each
date on which Distributions are payable in accordance with the
foregoing, a "Distribution Date"). A "Business Day" means 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 of a Trust (other than
distributions on a Redemption Date) will be payable to the holders
thereof as they appear on the register of that Trust on the relevant
record dates, which, unless otherwise specified on the applicable
Prospectus Supplement, will 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 the Capital Securities
are registered on the relevant record date, and the defaulted
Distribution instead will be payable to the person in whose name the
Capital Securities are registered on the special record date or other
specified date determined in accordance with the Declaration of the
Trust that issued the Capital Securities.
REDEMPTION OR EXCHANGE
MANDATORY REDEMPTION. Upon the repayment or redemption, in whole
or in part, of any series of Corresponding Junior Subordinated
Debentures, whether at Stated Maturity or upon earlier redemption as
provided in the Indenture, the proceeds from the repayment or
redemption will be applied by the Property Trustee to redeem the
related Trust Securities, upon not less than 30 nor more than 60 days'
prior notice, having an aggregate liquidation amount equal to the
aggregate principal amount of the series of Corresponding Junior
Subordinated Debentures so redeemed. See "Description of Junior
Subordinated Debentures Redemption." If less than all of the
Corresponding Junior Subordinated Debentures are to be repaid or
redeemed on a Redemption Date, then the proceeds from the repayment or
redemption will be allocated PRO RATA to the redemption of the related
Trust Securities. Upon an Indenture Event of Default, the Capital
Securities will have priority over the Common Securities with respect
to the repayment or redemption. See "Subordination of Common
Securities."
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Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporation will have the right, subject to receipt of
any necessary prior approval of the Federal Reserve, to redeem any
series of Junior Subordinated Debentures (i) on or after any date that
may be specified in the applicable Prospectus Supplement, in whole at
any time or in part from time to time, (ii) in whole (but not in part)
following the occurrence of a Special Event or (iii) as may be
otherwise specified in the applicable Prospectus Supplement.
DISTRIBUTION OF CORRESPONDING JUNIOR SUBORDINATED DEBENTURES.
Subject to the receipt of any necessary prior approval of the Federal
Reserve, the Corporation has the right at any time to terminate a
Trust and, after satisfaction of the claims of creditors of the Trust
as provided by applicable law, cause the Corresponding Junior
Subordinated Debentures relating to the Trust to be issued to the
holders of the related Trust Securities in liquidation of the Trust.
SPECIAL EVENT REDEMPTION. If a Special Event in respect of a
Trust has occurred and is continuing, the Corporation will have the
option, subject to the receipt of any necessary prior approval of the
Federal Reserve, to dissolve the Trust and, after satisfaction of the
claims of creditors of the Trust as provided by applicable law, cause
the Corresponding Junior Subordinated Debentures to be distributed to
the holders of the related Trust Securities in liquidation of the
Trust. In addition, if provided in the applicable Prospectus
Supplement, the Corporation will have the option, subject to receipt
of any necessary prior approval of the Federal Reserve, to redeem
within 120 days following the occurrence of the Special Event the
Corresponding Junior Subordinated Debentures held by the Trust on the
date of redemption in whole (but not in part) and thereby cause a
mandatory redemption of the related Trust Securities in whole (but not
in part) at a redemption price with respect to the related Trust
Securities equal to the Redemption Price of the Corresponding Junior
Subordinated Debentures. Under current United States federal income
tax law and interpretations thereof and assuming, as expected, each
Trust is treated as a grantor trust, a distribution of any series of
Corresponding Junior Subordinated Debentures should not be a taxable
event to holders of the related 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 related Capital Securities. Certain United
States federal income tax consequences regarding distribution of
Junior Subordinated Debentures will be described in the applicable
Prospectus Supplement.
If the Corporation does not elect either option described above,
the related Capital Securities will remain outstanding until the
repayment of the Corresponding Junior Subordinated Debentures, whether
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at maturity or redemption, and if a Tax Event in respect of a Trust
has occurred and is continuing, the Corporation 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 the Tax Event.
A "Special Event" means, with respect to a Trust, a Tax Event, a
Regulatory Capital Event or an Investment Company Event. A "Tax Event"
in respect of a Trust means the receipt by the Corporation of an
opinion of counsel, rendered by tax counsel experienced in such
matters, 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 Trust's 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 United States federal
income tax with respect to income received or accrued on the
Corresponding Junior Subordinated Debentures held by the Trust,
(ii) interest payable by the Corporation on such Corresponding Junior
Subordinated Debentures is not, or within 90 days of the date of such
opinion, will not be, deductible by the Corporation, in whole or in
part, for United States 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" in respect of a Trust means the
receipt by the Corporation of an opinion of counsel, rendered by 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 action or decision is announced on or after the date
of original issuance of the Trust's 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 Corresponding Junior
Subordinated Debentures in connection with the liquidation of the
Trust by the Corporation will not in and of itself constitute a
Regulatory Capital Event unless the liquidation occurs in connection
with a Tax Event or an Investment Company Event in respect of the
Trust.
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"Investment Company Event" in respect of a Trust means the
receipt by the Corporation of an opinion of counsel, rendered by
securities counsel experienced in such matters, 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 Trust's Capital
Securities.
There can be no assurance as to the market prices for the Capital
Securities or the Corresponding Junior Subordinated Debentures that
may be distributed in exchange for Capital Securities if a dissolution
and liquidation of a Trust were to occur. Accordingly, the Capital
Securities that an investor may purchase, or the Corresponding Junior
Subordinated Debentures that the investor may receive on dissolution
and liquidation of a Trust, may trade at a discount to the price that
the investor paid to purchase the Capital Securities offered hereby.
REDEMPTION PROCEDURES
A Trust's Capital Securities redeemed on each Redemption Date
will be redeemed at the Redemption Price received by the Trust in
respect of the Corresponding Junior Subordinated Debentures with the
applicable proceeds from the contemporaneous redemption or payment at
Stated Maturity of the Corresponding Junior Subordinated Debentures.
Redemptions of the Capital Securities will be made and the Redemption
Price will be payable on each Redemption Date only to the extent that
the Trust that issued the Capital Securities has sufficient funds
available for the payment of the Redemption Price. See
" 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 the holder's registered address. If a
Trust gives a notice of redemption in respect of its 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 the Capital Securities are held in certificated
form, the Trust, to the extent funds are available, will irrevocably
deposit with the paying agent for those Capital Securities funds
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sufficient to pay the 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
the Capital Securities. If notice of redemption has been given and
funds deposited as required, then upon the date of such deposit, all
rights of the holders of the Capital Securities so called for
redemption will cease, except the right of the holders of the Capital
Securities to receive the Redemption Price, but without interest on
the Redemption Price, and the Capital Securities will cease to be
outstanding. If any date fixed for redemption of Capital Securities
is not a Business Day, then payment of the Redemption Price payable on
that 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 the Business Day falls in the next calendar
year, the 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. If 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 that
issued the Capital Securities or by the Corporation pursuant to the
Guarantee relating to the Capital Securities as described under
"Description of Guarantee," Distributions on the 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 the 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 Securities called for redemption will be payable to
the holders of the Capital Securities on the relevant record dates for
the related Distribution Dates.
Subject to applicable law (including United States federal
securities law) and to the provisions of the Declaration of the
applicable Trust, the Corporation 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.
No Trust may redeem fewer than all of its outstanding Capital
Securities unless all accrued and unpaid Distributions have been paid
on all such Capital Securities for all Distribution periods
terminating on or prior to the Redemption Date. If less than all of
the Capital Securities issued by a Trust are to be redeemed on a
Redemption Date, then the aggregate amount of such Capital Securities
to be redeemed will be allocated PRO RATA among the Capital
Securities. If the Capital Securities are in book-entry form, they
will be redeemed as described below under "Book-Entry Issuance." If
not, the Capital Securities to be redeemed will be selected on a PRO
RATA basis not more than 60 days prior to the Redemption Date by the
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Property Trustee from the outstanding Capital Securities not
previously called for redemption, by such method as the Property
Trustee will deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $1,000.00 or an
integral multiple of $1,000.00 in excess thereof) of the liquidation
amount of such Capital Securities of a denomination larger than
$1,000.00. The Property Trustee will promptly notify the registrar of
the applicable Trust 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 each Declaration, unless the context otherwise
requires, all provisions relating to the redemption of Capital
Securities will 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, each
Trust's Capital Securities and Common Securities, as applicable, will
be made PRO RATA based on the liquidation amount of the Capital
Securities and Common Securities; PROVIDED, HOWEVER, that if on any
Distribution Date or Redemption Date an Indenture Event of Default has
occurred and is 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, will be made unless payment in full in cash
of all accumulated and unpaid Distributions on all of the Trust's
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 the Redemption Price on all of
the Trust's outstanding Capital Securities then called for
redemption, has been made or provided for, and all funds available to
the Property Trustee will first be applied to the payment in full in
cash of all Distributions on, or Redemption Price of, the Trust's
Capital Securities then due and payable.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to each Declaration, each Trust will automatically
dissolve upon expiration of its term and will dissolve on the first to
occur of: (i) certain events of bankruptcy, dissolution or liquidation
of the Corporation or the holder of the Trust's Common Securities;
(ii) the distribution of the Corresponding Junior Subordinated
Debentures to the holders of the related Trust Securities (if the
Corporation, as sponsor of the Trust, has given written direction to
the Property Trustee to terminate the Trust); (iii) the repayment of
all of the related Capital Securities in connection with the maturity
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or redemption of all of the Corresponding Junior Subordinated
Debentures; and (iv) the entry by a court of competent jurisdiction of
an order for the dissolution of the Corporation or the Trust.
If an early dissolution occurs as described in clause (i), (ii)
or (iv) above, the Trust will 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 Trust
Securities issued by the Trust their PRO RATA interest in the
Corresponding Junior Subordinated Debentures, unless the distribution
is determined by the Property Trustee not to be practicable, in which
event the 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 the Trust's 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 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 its Capital Securities
and Common Securities will be paid on a PRO RATA basis. The holder(s)
of the Trust's Common Securities will be entitled to receive
distributions upon any such liquidation PRO RATA with the holders of
its Capital Securities, except that if an Indenture Event of Default
has occurred and is continuing, the Capital Securities will have a
priority over the Common Securities. See " Subordination of Common
Securities," above.
After the liquidation date is fixed for any distribution of
Corresponding Junior Subordinated Debentures to holders of related
Capital Securities, (i) the related Capital Securities will no longer
be deemed to be outstanding, (ii) DTC or its nominee, as a record
holder of the related Capital Securities, will receive a registered
global certificate or certificates representing the Corresponding
Junior Subordinated Debentures to be delivered upon the distribution
and (iii) any certificates representing the related Capital Securities
held in certificated form will be deemed to represent Corresponding
Junior Subordinated Debentures having an aggregate principal amount
equal to the liquidation amount of the related Capital Securities, and
bearing accrued and unpaid interest in an amount equal to the accrued
and unpaid Distributions on the related Capital Securities until the
certificates are presented for cancellation, upon which the
Corporation will issue to each holder, and the Indenture Trustee will
authenticate, certificates representing the Corresponding Junior
Subordinated Debentures.
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CERTAIN COVENANTS OF THE CORPORATION
Under each Declaration, the Corporation will covenant, as to the
applicable series of Capital Securities, (i) to maintain directly or
indirectly 100% ownership of the related Common Securities, except
that any permitted successor of the Corporation under the related
Declaration may succeed to the Corporation's ownership of the related
Common Securities, (ii) to use its reasonable efforts to ensure that
the related Trust (a) remains a statutory business trust and does not
voluntarily dissolve, wind-up, liquidate or terminate, except in
connection with the distribution of the Corresponding Junior
Subordinated Debentures to the holders of related Trust Securities in
liquidation of the Trust, the redemption of all of the related Trust
Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the related Declaration, and
(b) will not be an investment company for purposes of the Investment
Company Act, and (iii) 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 United States
federal income tax purposes.
TRUST ENFORCEMENT EVENTS
An Indenture Event of Default constitutes a Trust Enforcement
Event under each Declaration with respect to the Trust Securities
issued thereunder; PROVIDED, HOWEVER, that pursuant to the
Declaration, the holder of the Trust's 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 Trust's Capital Securities have been cured, waived or otherwise
eliminated. Until the Trust Enforcement Event with respect to the
Trust's 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 Trust's Capital Securities and only the
holders of those Capital Securities will have the right to direct the
Property Trustee with respect to certain matters under the
Declaration, and therefore the Indenture.
Upon the occurrence of a Trust Enforcement Event in respect of a
Trust, the Indenture Trustee or the Property Trustee as the holder of
the Corresponding Junior Subordinated Debentures on behalf of the
Trust will have the right under the Indenture to declare the principal
of and interest on the Corresponding Junior Subordinated Debentures to
be immediately due and payable. The Corporation and each Trust are
required to file annually with the Property Trustee an officer's
certificate as to its compliance with all conditions and covenants
under the Declarations relating to each Trust.
If the Property Trustee fails to enforce its rights with respect
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to a series of Corresponding Junior Subordinated Debentures held on
behalf of a Trust after a holder of record of related Capital
Securities has made a written request, the record holder of the
related Capital Securities may institute a Direct Action against the
Corporation to enforce the Property Trustee's rights under the
Corresponding Junior Subordinated Debentures without first instituting
any legal proceedings against the Property Trustee or any other person
or entity. In addition, if a Trust Enforcement Event has occurred and
is continuing and is attributable to the failure of the Corporation to
pay interest, principal or other required payments on the
Corresponding Junior Subordinated Debentures issued to the Trust on
the date that the interest, principal or other payment is otherwise
payable, then a record holder of related Capital Securities may, on or
after the respective due dates specified in the Corresponding Junior
Subordinated Debentures, institute a Direct Action against the
Corporation under the Indenture for enforcement of payment on
Corresponding Junior Subordinated Debentures having a principal amount
equal to the aggregate liquidation amount of the related Capital
Securities held by the holder. In connection with the Direct Action,
the Corporation will be subrogated to the rights of the record holder
of related Capital Securities to the extent of any payment made by the
Corporation to that record holder.
VOTING RIGHTS; AMENDMENT OF EACH DECLARATION
Except as provided below and under "Description of
Guarantees Amendments and Assignment" and as otherwise required by
law and the applicable Declaration, the holders of Capital Securities
will have no voting rights.
So long as any series Corresponding Junior Subordinated
Debentures are held by the Property Trustee, the other Trustees will
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 that
series of Corresponding 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 of
such Corresponding Junior Subordinated Debentures will be due and
payable or (iv) consent to any amendment, modification or termination
of the Indenture or that series Corresponding Junior Subordinated
Debentures, if consent is required, without, in each case, obtaining
the prior approval of the holders of a majority in aggregate
liquidation amount of all outstanding related Capital Securities;
PROVIDED, HOWEVER, that where a consent under the Indenture would
require the consent or act of more than a majority of such holders, no
such consent will be given by the Property Trustee without the prior
consent of the holders of the required percentage of the aggregate
liquidation amount of all outstanding related Capital Securities. The
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Trustees will not revoke any action previously authorized or approved
by a vote of the holders of those Capital Securities except pursuant
to a subsequent vote of the holders of the related Capital Securities.
The Property Trustee will notify each holder of record of the related
Capital Securities of any notice of default which it receives with
respect to the Corresponding Junior Subordinated Debentures. In
addition to obtaining the foregoing approvals of the holders of
related Capital Securities, prior to taking any of the foregoing
actions, the Trustees will receive an opinion of counsel experienced
in such matters to the effect that the modification will not cause
more than an insubstantial risk that the related Trust will be deemed
to be an investment company under the Investment Company Act, or that
the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes on account of the action.
Each Declaration 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 the Capital
Securities issued under that Declaration, (i) to cure any ambiguity,
correct or supplement any provisions in the Declaration that may be
inconsistent with any other provision, or to make any other provisions
with respect to matters or questions arising under the Declaration
that is not inconsistent with the other provisions of the Declaration
or (ii) to modify, eliminate or add to any provisions of the
Declaration to the extent necessary to ensure that the Trust will be
classified as a grantor trust and will not be taxable as corporations
for United States federal income tax purposes at all times that any of
the Trust's Trust 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 under the Investment Company Act or written change in
interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which if the change
does not have a material adverse effect on the rights, preferences or
privileges of the holders of those Capital Securities, PROVIDED that
in each such case the action does not adversely affect in any material
respect the interests of any holder of the Trust's Trust Securities.
Any amendments of the Declaration will become effective when notice
thereof is given to the holders of the related Trust Securities.
Any required approval of holders of Capital Securities may be
given at a meeting of holders of Capital Securities convened for that
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 the holders is to be taken, to be given to each holder of
record of Capital Securities in the manner set forth in the applicable
Declaration.
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No vote or consent of the holders of Capital Securities will be
required for a Trust to redeem and cancel its Capital Securities in
accordance with the applicable Declaration.
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 Corporation, the
Trustees or any affiliate of the Corporation or any Trustees, will,
for purposes of the vote or consent, be treated as if they were not
outstanding.
EXPENSES AND TAXES
In the Indenture, the Corporation, as borrower, agrees to pay all
debts and other obligations (other than with respect to the Trust
Securities) and all costs and expenses of each Trust (including costs
and expenses relating to the organization of each Trust, the fees and
expenses of the Trustees and the costs and expenses relating to the
operation of each Trust) and to pay any and all taxes and all costs
and expenses with respect thereto (other than United States
withholding taxes) to which a Trust might become subject. The
foregoing obligations of the Corporation under the Indenture will be
for the benefit of, and will be enforceable by, any person to whom any
such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not the Creditor has received notice thereof.
Any Creditor may enforce such obligations of the Corporation directly
against the Corporation, and the Corporation has irrevocably waived
any right or remedy to require that any Creditor take any action
against a Trust or any other person before proceeding against the
Corporation. The Corporation also agrees in the Indenture to execute
any additional agreements that may be necessary or desirable to give
full effect to the foregoing.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus
Supplement, the Property Trustee will act as the initial registrar and
transfer agent for the Capital Securities.
Registration of transfers of Capital Securities will be effected
without charge by or on behalf of each Trust, but a Trust may require
payment of any tax or other governmental charges that may be imposed
in connection with any transfer or exchange. No Trust will be
required (i) to register or cause to be registered the transfer or
exchange of its Capital Securities during a period beginning at the
opening of business 15 days before the day of the mailing of any
notice of redemption and ending at the close of business on the day of
mailing of the notice of redemption or (ii) to register or cause to be
registered the transfer or exchange of any of its Capital Securities
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so selected for redemption, except in the case of any of its Capital
Securities being redeemed in part, any portion thereof not to be
redeemed.
PAYMENT AND PAYING AGENCY
Payments in respect of Capital Securities held in global form
will be made to DTC as Depository, which will credit the relevant
accounts at DTC on the applicable Distribution Dates or, if the
Capital Securities are held in certificated form, the payments will be
made by check mailed to the address of the holder entitled thereto
that appears on the register maintained by the registrar. The paying
agent will initially be the Property Trustee and any co-paying agent
chosen by the Property Trustee and acceptable to the Regular Trustees
and the Corporation. The paying agent will be permitted to resign as
paying agent upon 30 days' written notice to the Property Trustee and
the Corporation. If the Property Trustee discontinues to act as
paying agent, the Regular Trustees will appoint a successor (which
will be a bank or trust company acceptable to the Regular Trustees and
the Corporation) to act as paying agent.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and
continuance of a Trust Enforcement Event, undertakes to perform only
those duties that are specifically set forth in each Declaration 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 its
own affairs. Subject to this provision, the Property Trustee is under
no obligation to exercise any of the powers vested in it by the
applicable Declaration 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, required to construe ambiguous provisions in the Declaration
or is unsure of the application of any provision of the applicable
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 will be under no duty to, take any action
that is directed by the Corporation and, if not so directed, will take
any action that it deems advisable and in the best interests of the
holders of the Trust Securities and will have no liability except for
its own bad faith, negligence or willful misconduct.
For information concerning the relationships between Bankers
Trust Company, the Property Trustee, and the Corporation, see
"Description of Junior Subordinated Debentures Information concerning
the Indenture Trustee."
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GLOBAL CAPITAL SECURITIES
The Capital Securities of a series may be issued in whole or in
part in the form of one or more Global Capital Securities (as defined
herein) that will be deposited with, or on behalf of, the Depositary
identified in the Prospectus Supplement relating to that series.
Unless otherwise indicated in the applicable Prospectus Supplement for
the series, the Depositary will be DTC. Global Capital Securities may
be issued only in fully registered form in either temporary or
permanent form. Unless and until it is exchanged in whole or in part
for the individual Capital Securities represented thereby, a Global
Capital Security may not be transferred except as a whole by the
Depositary for the Global Capital Security 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 nominee
of a successor Depositary or any nominee of the successor.
The specific terms of the depositary arrangement with respect to
a series of Capital Securities will be described in the Prospectus
Supplement relating to that series. The Corporation anticipates that
the following provisions will apply generally to depositary
arrangements.
Upon the issuance of Global Capital Security, and the deposit of
the Global Capital Security with or on behalf of the Depositary, the
Depositary for the Global Capital Security or its nominee will credit
on its book-entry registration and transfer system, the respective
aggregate liquidation amounts of the individual Capital Securities
represented by the Global Capital Security to the accounts of
Participants. See "Book-Entry Issuance Depository Procedures."
These accounts will be designated by the dealers, underwriters or
agents with respect to the Capital Securities or by the Corporation if
the Capital Securities are offered and sold directly by the
Corporation. Ownership of beneficial interests in a Global Capital
Security will be limited to Participants or persons that hold
interests through Participants. Ownership of beneficial interests in
the Global Capital Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the
applicable Depositary or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to
interests of persons who hold through Participants). The laws of some
states require that certain purchasers of securities take physical
delivery of the securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a Global Capital
Security.
So long as the Depositary for a Global Capital Security, or its
nominee, is the registered owner of the Global Capital Security, the
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Depositary or its nominee, as the case may be, will be considered the
sole owner or holder of the Capital Securities represented by the
Global Capital Security for all purposes under the Declaration
governing the Capital Securities. Except as provided below, owners of
beneficial interests in a Global Capital Security will not be entitled
to have any of the individual Capital Securities of the series
represented by the Global Capital Security registered in their names,
will not receive or be entitled to receive physical delivery of the
Capital Securities of that series in definitive form and will not be
considered the owners or holders thereof under the related
Declaration.
Payments of principal of, premium, if any, and interest on
individual Capital Securities represented by a Global Capital Security
registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered
owner of the Global Capital Security representing the Capital
Securities. Neither the Corporation, the Property Trustee, any paying
agent, nor the securities registrar for the Capital Securities will
have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of the Global Capital Security representing the Capital
Securities or for maintaining, supervising or reviewing any records
relating to the beneficial ownership interests.
The Corporation expects that the Depository for a series of
Capital Securities or its nominee, upon receipt of any payment of
liquidation amount, Redemption Price, premium or Distributions in
respect of a permanent Global Capital Security representing any of
those Capital Securities, immediately will credit Participants'
accounts with payments in amounts proportionate to their respective
beneficial interest in the aggregate liquidation amount of the Global
Capital Security for the Capital Securities as shown on the records of
the Depositary or its nominee. The Corporation also expects that
payments by Participants to owners of beneficial interests in the
Global Capital Security held through the Participants will be governed
by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or
registered in "street name." These payments will be the
responsibility of the Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depository for a series of Capital Securities is at
any time unwilling, unable or ineligible to continue as depositary and
a successor depositary is not appointed by the Trust within 90 days,
the Trust will issue individual Capital Securities of that series in
exchange for the Global Capital Security representing the series of
Capital Securities. In addition, the Trust may at any time and in its
sole discretion, subject to any limitations described in the
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applicable Prospectus Supplement, determine not to have any Capital
Securities of any series represented by a Global Capital Security and,
in that event, will issue individual Capital Securities of that series
in exchange for the Global Capital Security representing that series
of Capital Securities. Further, if the Trust so specifies with
respect to the Capital Securities of a series, an owner of a
beneficial interest in a Global Capital Security representing Capital
Securities of that series may, on terms acceptable to the Trust, the
Property Trustee and the Depositary for the Global Capital Security,
receive individual Capital Securities of that series in exchange for
that beneficial interest, subject to any limitations described in the
applicable Prospectus Supplement. In any such instance, an owner of a
beneficial interest in a Global Capital Security will be entitled to
physical delivery of individual Capital Securities of the series
represented by the Global Capital Security equal in principal amount
to the beneficial interest and to have the Capital Securities
registered in the owner's name. Individual Capital Securities of the
series so issued will be issued in denominations, unless otherwise
specified by the Trust, of $1,000.00 and integral multiples thereof.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
A 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 (as
defined in the related Declaration), except as described below. A
Trust may, at the request of the Corporation, with the consent of the
majority of the Regular Trustees and without the consent of the
holders of the Trust's Capital Securities, 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) the
successor entity (if not the Trust) either (a) expressly assumes all
of the obligations of the Trust with respect to the Trust's Capital
Securities or (b) substitutes for the Trust's 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 Trust's 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 Corporation expressly appoints a trustee of the successor
entity possessing the same powers and duties as the Property Trustee
as the holder of the Corresponding Junior Subordinated Debentures,
(iii) the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Trust's Capital
Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (iv) the
merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and
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privileges of the holders of the Trust's Capital Securities (including
any Successor Securities) in any material respect, (v) the successor
entity has a purpose identical to that of the Trust, (vi) prior to the
merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Corporation has received an opinion from independent
counsel to the Trust that is experienced in such matters to the effect
that (a) the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Trust's Capital
Securities (including any Successor Securities) in any material
respect and (b) following the merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, (1) neither the Trust nor
the 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
United States federal income tax purposes, (vii) the Corporation or
any permitted successor or assignee owns all of the Common Securities
of the successor entity and guarantees the obligations of the
successor entity under the Successor Securities at least to the extent
provided by the Guarantee relating to the Trust and (viii) the
successor entity (if not the Trust) expressly assumes all of the
obligations of the Trust with respect to the Trustees. Notwithstanding
the foregoing, the Trust will not, except with the consent of holders
of 100% in aggregate liquidation amount of the Trust's 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 the 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 United States federal
income tax purposes and each holder of the Trust's Capital Securities
not to be treated as owning an undivided interest in the Corresponding
Junior Subordinated Debentures.
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 either Trustee will be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of either Trustee, will be the successor of the Trustee under
the applicable Declaration, PROVIDED that the corporation is otherwise
qualified and eligible.
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MISCELLANEOUS
The Regular Trustees of each Trust are authorized to conduct the
affairs of and to operate that Trust so that the Trust will not be
deemed to be an "investment company" under the Investment Company Act
or classified other than as a grantor trust for United States federal
income tax purposes. In addition, the Regular Trustees of each Trust
are authorized to cooperate with the Corporation to ensure that the
Junior Subordinated Debentures relating to that Trust will be treated
as indebtedness of the Corporation for United States federal income
tax purposes.
BOOK-ENTRY ISSUANCE
The 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
DTC, as Depository, 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."
DEPOSITARY PROCEDURES
DTC is a limited-purpose trust company created to hold securities
for its 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 a Participant or an Indirect Participant.
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 also has advised the Trusts and the Corporation that,
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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 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.
Payments in respect of a 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 these 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
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any of its Participants or Indirect Participants. DTC has advised the
Trusts and the Corporation 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 the 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, the Trusts or the Corporation. Neither the
Corporation, the Trusts 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 Corporation, the
Trusts 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 these 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 Trusts and the Corporation that it will vote
and take any other 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 related Global Capital Securities
are credited.
The information in this section concerning DTC and its book-entry
system has been obtained from sources that the Trusts and the
Corporation believe to be reliable, but neither the Trusts nor the
Corporation 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 these procedures, and these
procedures may be discontinued at any time. Neither the Trusts, the
Corporation 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
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A Global Capital Security is exchangeable for Capital Securities
in registered certificated form only if (i) DTC notifies the related
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 Corporation 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. 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 DTC in accordance
with its customary procedures.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Corporation
concurrently with the issuance by each Trust of its Capital
Securities. Bankers Trust Company, acting as the Guarantee Trustee
under each Guarantee, will hold the Guarantee on behalf of the Trust
for the benefit of the holders of that Trust's Capital Securities.
Each Guarantee will be qualified as an indenture under the Trust
Indenture Act. This summary of certain provisions of the Guarantees
does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the provisions of each Guarantee,
including the definitions therein of certain terms, and the Trust
Indenture Act. The form of the Guarantee of each Trust has been filed
as an exhibit to the Registration Statement of which this Prospectus
forms a part. Reference in this summary to Capital Securities means a
Trust's Capital Securities to which a Guarantee relates.
GENERAL
The Corporation will irrevocably and unconditionally agree to pay
in full on a subordinated basis, to the extent set forth in each
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 that issued the Capital Securities 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
related 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
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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 Corresponding
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
its Capital Securities in liquidation of the Trust. The Corporation's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Corporation to the holders of
the Capital Securities or by causing the Trust to pay the amounts to
those holders.
The Guarantee will be an irrevocable, subordinated guarantee of
the related Trust's payment and other obligations under its Capital
Securities, but will apply only to the extent that the Trust has
sufficient funds available to make those payments.
If the Corporation does not make interest payments on the
Corresponding Junior Subordinated Debentures held by a Trust, the
Trust will not be able to pay Distributions on the related Capital
Securities and will not have funds legally available therefor. Each
Guarantee will rank subordinate and junior in right of payment to all
general liabilities of the Corporation, except those made PARI PASSU
or subordinate by their express terms. See " Status of the
Guarantees."
The Corporation has, through the related Guarantee, the related
Declaration, the Corresponding Junior Subordinated Debentures and the
Indenture, taken together, fully and unconditionally guaranteed all of
each Trust's obligations under its Capital Securities. No single
document standing alone or operating in conjunction with fewer than
all of the other documents constitutes this guarantee. It is only the
combined operation of these documents that has the effect of providing
a full and unconditional guarantee of each Trust's obligations under
its Capital Securities. See "Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the Guarantees."
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the
Corporation and will rank subordinate and junior in right of payment
to all Indebtedness of the Corporation in the same manner as Junior
Subordinated Debentures.
Each Guarantee will rank PARI PASSU with all other Guarantees
issued by the Corporation. Each Guarantee will constitute a guarantee
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of payment and not of collection (I.E., if the Guarantee Trustee fails
to enforce a Guarantee, the guaranteed party may institute a legal
proceeding directly against the Corporation to enforce its rights
under that Guarantee without first instituting a legal proceeding
against any other person or entity). Each Guarantee will be held for
the benefit of the holders of the related Capital Securities. Each
Guarantee will not be discharged except by payment of the Guarantee
Payments in full to the extent not paid by the related Trust or upon
distribution of the Corresponding Junior Subordinated Debentures to
the holders of the related Capital Securities in exchange for all of
those Capital Securities.
Because the Corporation is a holding company, the right of the
Corporation to participate in any distribution of assets of any
subsidiary upon the subsidiary's liquidation or reorganization or
otherwise, is subject to the prior claims of creditors of that
subsidiary, except to the extent that the Corporation may be
recognized as a creditor of that subsidiary. Accordingly, the
Corporation's obligations under each Guarantee will be effectively
subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and claimants with respect to each
Guarantee should look only to the assets of the Corporation for
payments under the Guarantee. See "Old Kent Financial Corporation."
Except as otherwise provided in the applicable Prospectus Supplement,
the Guarantees will not limit the incurrence or issuance of other
secured or unsecured debt of the Corporation, whether under the
Indenture or any existing or other indenture that the Corporation has
entered into or may enter into in the future or otherwise. See the
Prospectus Supplement relating to any offering of Capital Securities.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially
adversely affect the rights of holders of the related Capital
Securities (in which case no vote will be required), a Guarantee may
not be amended without the prior approval of the holders of not less
than a majority of the aggregate liquidation amount of such
outstanding Capital Securities. The manner of obtaining the approval
is set forth under "Description of Capital Securities Voting Rights;
Amendment of the Declaration." All guarantees and agreements contained
in each Guarantee will bind the successors, assigns, receivers,
trustees and representatives of the Corporation and will inure to the
benefit of the registered holders of the related Capital Securities
then outstanding.
EVENTS OF DEFAULT
An event of default under a Guarantee will occur upon the failure
of the Corporation to perform any of its payment or other obligations
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thereunder. The holders of a majority in aggregate liquidation amount
of the related 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 a Guarantee, any holder
of the related Capital Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under the
Guarantee without first instituting a legal proceeding against the
related Trust, the Guarantee Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with
the Guarantee Trustee a certificate as to whether or not the
Corporation is in compliance with all the conditions and covenants
applicable to it under each Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Corporation in performance of any
Guarantee, undertakes to perform only those duties that are
specifically set forth in each 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
any Guarantee at the request of any holder of any Capital Securities
unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
For information concerning the relationships between Bankers
Trust Company, the Guarantee Trustee, and the Corporation, see
"Description of Junior Subordinated Debentures Information concerning
the Indenture Trustee."
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and
effect (i) upon full payment of the redemption price of all of the
related Capital Securities, (ii) upon full payment of the amounts
payable upon liquidation of the related Trust or (iii) upon
distribution of the Corresponding Junior Subordinated Debentures to
the holders of the related Capital Securities in exchange for all of
those Capital Securities. Each Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time
any holder of the related Capital Securities must restore payment of
any sums paid under those Capital Securities or the Guarantee.
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GOVERNING LAW
The Guarantees will be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of
laws principles thereof.
RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital
Securities (to the extent the Trusts have funds available for the
payment of the Distributions) are irrevocably guaranteed by the
Corporation as and to the extent set forth under "Description of
Guarantees." If and to the extent that the Corporation does not make
payments on any series of Corresponding Junior Subordinated
Debentures, the related Trust will not pay Distributions or other
amounts due on the related Capital Securities. No Guarantee will cover
payment of Distributions when the related Trust does not have
sufficient funds to pay Distributions with respect to that Trust's
Capital Securities. In that event, a holder of Capital Securities may
institute a legal proceeding directly against the Corporation under
the Indenture to enforce payment of Distributions to that holder after
the respective due dates. Taken together, the Corporation's
obligations under each series of Corresponding Junior Subordinated
Debentures, the Indenture, the related Declaration and the related
Guarantee provide, in the aggregate, a full and unconditional
guarantee of payments of distributions and other amounts due on the
related Capital Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents
constitutes this guarantee. It is only the combined operation of these
documents that has the effect of providing a full and unconditional
guarantee of each Trust's obligations under its Capital Securities.
The obligations of the Corporation under the Guarantees and the Junior
Subordinated Debentures are subordinate and junior in right of payment
to all Indebtedness of the Corporation.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when
due on each series of Corresponding Junior Subordinated Debentures,
these payments will be sufficient to cover Distributions and other
payments due on the related Capital Securities, primarily because
(i) the aggregate principal amount of the Corresponding Junior
Subordinated Debentures will be equal to the sum of the aggregate
stated liquidation amount of the related Capital Securities and the
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related Common Securities; (ii) the interest rate and interest and
other payment dates on the Corresponding Junior Subordinated
Debentures will match the Distribution rate and Distribution Date and
other payment dates for the related Capital Securities; (iii) the
Corporation will pay for all and any costs, expenses and liabilities
of each Trust except each Trust's obligations under its Capital
Securities; and (iv) each Declaration will provide that the related
Trust will not engage in any activity that is not consistent with the
limited purposes of the Trust.
Notwithstanding anything to the contrary in the Indenture, the
Corporation has the right to set-off any payment it is otherwise
required to make thereunder with and to the extent the Corporation has
theretofore made, or is concurrently on the date of such payment
making, a payment under the related Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of Capital Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under the
related Guarantee without first instituting a legal proceeding against
the Guarantee Trustee, the related Trust or any other person or
entity.
A default or event of default under any Indebtedness of the
Corporation will not constitute a default or Indenture Event of
Default. However, in the event of payment defaults under, or
acceleration of, Indebtedness of the Corporation, the subordination
provisions of the Indenture provide that no payments may be made in
respect of the Corresponding Junior Subordinated Debentures until the
Indebtedness has been paid in full or any payment default thereunder
has been cured or waived. Failure to make required payments on any
series of Corresponding Junior Subordinated Debentures would
constitute an Indenture Event of Default.
LIMITED PURPOSE OF TRUSTS
Each Trust's Capital Securities evidence a beneficial ownership
interest in the assets of that Trust, and each Trust exists for the
sole purpose of issuing Trust Securities and investing the proceeds
thereof in the Corresponding Junior Subordinated Debentures. A
principal difference between the rights of a holder of Capital
Securities and the rights of a holder of Corresponding Junior
Subordinated Debentures is that a holder of Corresponding Junior
Subordinated Debentures is entitled to receive from the Corporation
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 related Trust (or from the Corporation
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under the related Guarantee) if and to the extent the Trust has funds
available for the payment of the Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or
liquidation of a Trust involving the liquidation of Corresponding
Junior Subordinated Debentures, the holders of the related Capital
Securities will be entitled to receive, out of assets held by the
Trust, the liquidation distribution in cash. See "Description of
Capital Securities Liquidation Distribution Upon Dissolution." Upon
any voluntary or involuntary liquidation or bankruptcy of the
Corporation, the Property Trustee, as holder of the Corresponding
Junior Subordinated Debentures, would be a subordinated creditor of
the Corporation, subordinated in right of payment to all Indebtedness,
but entitled to receive payment in full of principal and interest
before any shareholders of the Corporation receive payments or
distributions. Since the Corporation will be the guarantor under each
Guarantee and will agree to pay for all costs, expenses and
liabilities of each Trust (other than each Trust's obligations to the
holders of its Capital Securities), the positions of a holder of
Capital Securities and a holder of Corresponding Junior Subordinated
Debentures relative to other creditors and to shareholders of the
Corporation in the event of liquidation or bankruptcy of the
Corporation would be substantially the same.
PLAN OF DISTRIBUTION
The Capital Securities may be sold in a public offering to or
through underwriters or dealers designated from time to time. The
Corporation may sell Junior Subordinated Debentures to one or more
Trusts, and such Trust may sell its Capital Securities, as soon as
practicable after effectiveness of the Registration Statement of which
this Prospectus forms a part. The names of any underwriters or
dealers involved in the sale of the Capital Securities in respect of
which this Prospectus is delivered, the amount or number of Capital
Securities to be purchased by any underwriters and any applicable
commissions or discounts will be set forth in the applicable
Prospectus Supplement.
Underwriters may offer Capital Securities at a fixed price or
prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. In connection with the sale of
Capital Securities, underwriters may be deemed to have received
compensation from the Corporation and/or the applicable Trust in the
form of underwriting discounts or commissions and may also receive
commissions. Underwriters may sell Capital Securities to or through
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dealers, and these dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters.
Any underwriting compensation paid by the Corporation and/or the
applicable Trust to underwriters in connection with the offering of
Capital Securities, and any discounts, concessions or commissions
allowed by the underwriters to participating dealers, will be
described in the applicable Prospectus Supplement. Underwriters and
dealers participating in the distribution of Junior Subordinated
Debentures and Capital Securities may be deemed to be underwriters,
and any discounts and commissions received by them and any profit
realized by them on resale of such Junior Subordinated Debentures and
Capital Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act of 1933, as amended (the
"Securities Act"). Underwriters and dealers may be entitled, under
agreement with the Corporation and the applicable Trust, to
indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act, and to
reimbursement by the Corporation for certain expenses.
In connection with the offering of the Capital Securities of any
Trust, the Trust may grant to the underwriters an option to purchase
additional Capital Securities to cover over-allotments, if any, at the
initial public offering price (with an additional underwriting
commission), as may be set forth in the applicable Prospectus
Supplement. If the Trust grants any over-allotment option, the terms
of the over-allotment option will be set forth in the applicable
Prospectus Supplement.
Underwriters and dealers may engage in transactions with, or
perform services for, the Corporation, the applicable Trust and/or any
of their affiliates in the ordinary course of business.
The Capital Securities will be, when first sold to the public,
new issues of securities and will have no established trading market.
Any underwriters to whom Capital Securities are sold for public
offering and sale may make a market in the Capital Securities, but the
underwriters will not be obligated to do so and may discontinue any
market making at any time without notice. The Capital Securities may
or may not be listed on a national securities exchange or The NASDAQ
Stock Market. No assurance can be given as to the liquidity of or the
existence of trading markets for any Capital Securities.
In connection with this offering, the underwriters may over-allot
or effect transactions which stabilize or maintain the market price of
the Capital Securities at a level above that which might otherwise
prevail in the open market. Such transactions may be effected in the
over the counter market or otherwise. Such stabilizing, if commenced,
may be discontinued at any time.
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BENEFIT PLAN CONSIDERATIONS
Before authorizing an investment in any series of 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") (each, a "Plan"), should consider, among
other matters, (i) ERISA's fiduciary standards (including its prudence
and diversification requirements), (ii) whether the fiduciaries have
authority to make an 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 the 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 these 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 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 the 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 Capital Securities of the Trust that are held by Benefit Plan
Investors will be less than 25% of the total value of the securities
of the Trust, and no monitoring or other measures will be taken with
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respect to the satisfaction of the conditions to this exception. All
of the Common Securities will be purchased and held directly by the
Corporation.
It is possible that Capital Securities received as the result of
the 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 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 Offer the "widely held" requirement will be satisfied, no
assurances can be given that will be true. If the Capital Securities
are "publicly offered securities" at the time of the Offer, the assets
of the Trust would not be assets of the Plans holding 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 Corporation and/or other
persons, in providing services with respect to the Junior Subordinated
Debentures, may be considered fiduciaries to the Plan and subject to
the fiduciary responsibility provisions of Title I of ERISA. In
addition, certain transactions involving 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 Corporation is a Party in Interest with
respect to an investing Plan (either directly or by reason of its
ownership of its subsidiaries), extensions of credit between the
Corporation 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
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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 the purchase or holding is
covered by the exemptive relief provided by PTCE 96-23, 91-38, 95-60,
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, 91-38, 95-60,
90-1 or 84-14, the Corporation and the Trust may require a
satisfactory opinion of counsel or other evidence with respect to the
availability of the exemption for the 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 the securities
on behalf of or with "plan assets" is deemed to have represented by
its purchase and holding thereof that (i) the purchase and holding of
the Capital Securities is covered by the exemptive relief provided by
PTCE 96-23, 91-38, 95-60, 90-1, or 84-14 or another applicable
exemption, (ii) the Corporation is not a "Fiduciary," within the
meaning of Section 3(21) of ERISA and the regulations thereunder with
respect to the person's interest in the Capital Securities or the
Junior Subordinated Debentures and (iii) in purchasing the Capital
Securities, the 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.
Governmental plans and certain church plans are not subject to
ERISA, and also are 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.
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LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus
Supplement, certain legal matters with respect to the Junior
Subordinated Debentures and the Guarantees will be passed upon for the
Corporation by Warner Norcross & Judd llp, counsel to the Corporation,
and certain legal matters with respect to the Capital Securities will
be passed upon for the Trusts and the Corporation by Richards, Layton
& Finger, special Delaware counsel to the Trusts and the Corporation.
Certain United States federal income tax considerations will be passed
upon for the Corporation and the Trusts by Warner Norcross & Judd llp,
as tax counsel to the Corporation and the Trusts.
EXPERTS
The consolidated financial statements of Old Kent incorporated by
reference in this Prospectus and elsewhere in the Registration Statement of
which this Prospectus forms a part to the extent and for the periods
indicated in their reports have been audited by Arthur Andersen LLP,
independent public accountants, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of
the Exchange Act and, in accordance with the Exchange Act, files
reports, proxy statements and other information with the Commission.
You can inspect and copy these reports, proxy statements and other
information at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549. You can obtain information on
the operation of the Public Reference Room by calling the Commission
at 1-800-SEC-0330. To obtain reports, proxy statements and other
information filed with the Commission by issuers, such as the
Corporation, who file electronically, you can access the Commission's
Internet site at http://www.sec.gov.
The Corporation and the Trusts have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and
exhibits thereto, the "Registration Statement") under the Securities
Act with respect to the securities offered hereby. This Prospectus
does not contain all the information set forth in the Registration
Statement, certain portions of which have been omitted as permitted by
the rules and regulations of the Commission. For further information
with respect to the Corporation and the securities offered hereby,
reference is made to the Registration Statement and the exhibits and
the financial statements, notes and schedules filed as a part thereof
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or incorporated by reference therein, which may be inspected at the
public reference facilities of the Commission at the addresses set
forth above or through the Commission's home page on the Internet.
Statements made in this Prospectus concerning the contents of any
documents referred to herein are not necessarily complete, and in each
instance are qualified in all respects by reference to the copy of
such document filed as an exhibit to the Registration Statement.
No separate financial statement of any Trust has been included
herein. The Corporation and the Trusts do not consider that such
financial statements would be material to holders of the Capital
Securities because each 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 as trust assets the Corresponding Junior Subordinated
Debentures of the Corporation and issuing the Related Trust
Securities. See "The Trusts," "Description of Capital Securities,"
"Description of Junior Subordinated Debentures" and "Description of
Guarantees." In addition, the Corporation does not expect that any of
the Trusts will be filing reports under the Exchange Act with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the
Commission are incorporated into this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended
December 31, 1997.
2. Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
3. Current Reports on Form 8-K dated January 27, 1998, March 4,
1998, April 22, 1998, and June 15, 1998.
All documents filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior
to the termination of any offering of securities made by this
Prospectus shall be deemed to be incorporated by reference into this
Prospectus and to be a part of this Prospectus from the date of filing
of the 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, will be deemed to be modified or superseded for
purposes of the Registration Statement and this Prospectus to the
extent that a statement contained herein or in any other subsequently
filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
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statement so modified or superseded will not be deemed, except as so
modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
The Corporation will provide, without charge, to each person,
including any beneficial owner, to whom this Prospectus is delivered,
on the written or oral request of that person, a copy of any or all of
the information incorporated by reference in the Prospectus but not
delivered with the Prospectus (other than exhibits not specifically
incorporated by reference into the texts of the documents). Requests
for these documents should be directed to Old Kent Financial
Corporation, One Vandenberg Center, 111 Lyon Street, N.W., Grand
Rapids, Michigan 49503, Attention: Secretary, telephone number (616)
771-5272.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection
with the issuance and distribution of the securities being registered,
other than underwriting discounts and commissions. All amounts shown
(other than the Securities and Exchange Commission registration fee)
are estimates subject to future contingencies:
<TABLE>
<CAPTION>
<S><C> <C>
Securities and Exchange Commission registration fee. . . . $ 59,000
Blue sky fees and expenses . . . . . . . . . . . . . . . . 5,000
Printing and engraving expenses. . . . . . . . . . . . . . 25,000
Legal fees and expenses. . . . . . . . . . . . . . . . . . 100,000
Accounting fees and expenses . . . . . . . . . . . . . . . 10,000
Trustee fees and expenses. . . . . . . . . . . . . . . . . 10,000
Rating Agency fees and expenses . . . . . . . . . . . . . 70,000
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . 11,000
________
Total . . . . . . . . . . . . . . . . . . . . . . . . $290,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 561 through 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.
Old Kent Financial Corporation ("Old Kent") is obligated under
its Restated Articles of Incorporation to indemnify its directors and
executive officers to the full extent permitted under the MBCA. Old
Kent may similarly indemnify persons who are not directors or
executive officers to the extent authorized by Old Kent's Board of
Directors.
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 Old Kent or its
shareholders (and, if a criminal proceeding, if they had no reasonable
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cause to believe their conduct was unlawful) against: (a) 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 Old Kent) arising out of a
position with Old Kent (or with some other entity at Old Kent's
request); and (b) 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 Old Kent, unless the director or officer is found
liable to Old Kent, 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.
The MBCA generally requires that the indemnification
provided for in (a) and (b) 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. If the
articles of incorporation include a provision eliminating or limiting
the liability of a director, however, a corporation may indemnify a
director for certain expenses and liabilities without a determination
that the director met the applicable standards of conducts, unless the
director received a financial benefit to which he or she was not
entitled, intentionally inflicted harm on the corporation or its
shareholders, violated Section 551 of the MBCA, or intentionally
committed a criminal act. In connection with an action by or in the
right of the corporation, such indemnification may be for expenses
(including attorneys' fees) actually and reasonably incurred. In
connection with an action, suit, or proceeding other than an action,
suit, or proceeding by or in the right of the corporation, such
indemnification may be for expenses (including attorneys' fees)
actually and reasonably incurred, and for judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred.
In certain circumstances, the MBCA further permits advances to
cover such expenses before a final determination that indemnification
is 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 and which may be accepted without reference to the
financial ability of the person to make repayment, by or on behalf of
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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. If a provision in the articles of incorporation or bylaws, a
resolution of the board or shareholders, or an agreement makes
indemnification mandatory, then the advancement of expenses is also
mandatory, unless the provision, resolution or agreement specifically
provides otherwise.
Indemnification under the MBCA is not exclusive of other rights
to indemnification to which a person may be entitled under Old Kent'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 Old Kent to purchase insurance on behalf of its
directors and officers against liabilities arising out of their
positions with Old Kent, whether or not such liabilities would be
within the above indemnification provisions. Pursuant to this
authority, Old Kent maintains such insurance on behalf of its
directors and officers.
Old Kent has entered into indemnity agreements with each of its
directors. The agreements provide that Old Kent 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 Old Kent (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 Old Kent or by reason of any action taken by the
indemnitee while serving as a director, officer, employee, agent, or
fiduciary of Old Kent, or by reason of the fact that the indemnitee
was serving at the request of Old Kent in a similar capacity with
another entity, if such expenses and costs may be indemnified under
the MBCA. In accordance with Old Kent's Restated Articles of
Incorporation 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 applicable
standards of conduct set forth in the indemnity agreements.
ITEM 16. EXHIBITS.
1(a) --Form of Underwriting Agreement -- Capital Securities.
1(b) --Form of Purchase Agreement -- Common Securities.
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<PAGE>
1(c) --Form of Purchase Agreement -- Junior Subordinated Deferrable
Interest Debentures.
3(a) --Restated Articles of Incorporation of Old Kent Financial
Corporation. Previously filed as Exhibit 3.1 to Old Kent
Financial Corporation's Form S-4 (No. 333-56209) filed
June 4, 1998.
3(b) --Bylaws of Old Kent Financial Corporation. Previously
filed as Exhibit 3(b) to Old Kent Financial Corporation's
Form 10-Q Quarterly Report filed for the fiscal quarter
ended June 30, 1997. Here incorporated by reference.
4(a)(i) --Certificate of Trust of Old Kent Capital Trust II.
4(a)(ii) --Certificate of Trust of Old Kent Capital Trust III.
4(a)(iii) --Certificate of Trust of Old Kent Capital Trust IV.
4(b)(i) --Declaration of Trust of Old Kent Capital Trust II.
4(b)(ii) --Declaration of Trust of Old Kent Capital Trust III.
4(b)(iii) --Declaration of Trust of Old Kent Capital Trust IV.
4(b)(iv) --Form of Amended and Restated Declaration of Trust of
Old Kent Capital Trust II, Old Kent Capital Trust III
and Old Kent Capital Trust IV.
4(c) --Form of Indenture.
4(d) --Form of First Supplemental Indenture
4(e) --Form of Capital Security (included in Exhibit 4(b)(iv)).
4(f) --Form of Junior Subordinated Deferrable Interest Debenture
(included in Exhibit 4(c) and Exhibit 4(d)).
4(g) --Form of Guarantee.
5(a) --Opinion of Richards, Layton & Finger, special Delaware counsel, as
to the legality of the Capital Securities.
5(b) --Opinion of Warner Norcross & Judd llp as to the legality
of the Junior Subordinated Deferrable Interest Debentures
and the Guarantees.
8 --Opinion of Warner Norcross & Judd llp as to certain U.S.
federal income tax matters.
12 --Statement of the ratio of earnings to fixed charges.
23(a) --Consent of Arthur Andersen llp
23(b) --Consent of Richards, Layton & Finger, special Delaware counsel
(included in Exhibit 5(a)).
23(c) --Consent of Warner Norcross & Judd llp (included in
Exhibit 5(b) and Exhibit 8).
24(a) --Powers of Attorney for Old Kent Financial Corporation.
24(b) --Powers of Attorney for Old Kent Financial Corporation,
as sponsor, to sign the Registration Statement on
behalf of Old Kent Capital Trust II, Old Kent Capital
Trust III and Old Kent Capital Trust IV (included in
Exhibits 4(b)(i), 4(b)(ii) and 4(b)(iii)).
25 --Form T-1 Statement of Eligibility and Qualification of
Bankers Trust Company, as Trustee under the Indenture,
the Guarantees and the Amended and Restated Declarations
of Trust of Old Kent Capital Trust II, Old Kent Capital
Trust III and Old Kent Capital Trust IV.
99 --Form of Prospectus Supplement.
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<PAGE>
ITEM 17. UNDERTAKINGS.
a. The undersigned registrants hereby undertake:
(1) 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 or Registration Fee" table in the
effective registration statement); and (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.
Provided, however, that (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by
those items is contained in periodic reports filed with the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) 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.
(3) 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.
b. The undersigned registrants hereby undertake 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 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
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<PAGE>
that time shall be deemed to be the initial bona fide offering
thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing
provisions, or otherwise, the registrants have been advised that in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in said Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a
registrant of expenses incurred or paid by a director, officer or
controlling person of such 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,
such 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 policy as expressed in the Act and will be governed by
the final adjudication of such issue.
d. The undersigned registrants hereby undertake that;
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and 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 July 17, 1998.
OLD KENT FINANCIAL CORPORATION
By: /S/MARY E. TUUK
Mary E. Tuuk
Senior Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons
on behalf of the registrant on July 17, 1998 in the capacities
indicated.
SIGNATURE CAPACITY
/S/ DAVID J. WAGNER* Chairman of the Board,
David J. Wagner President, Chief
Executive Officer and
Director (Principal
Executive Officer)
/S/ KEVIN T. KABAT* Vice Chairman of the
Kevin T. Kabat Board and Director
/S/ ROBERT H. WARRINGTON* Vice Chairman of the
Robert H. Warrington Board, Chief Financial Officer
and Director (Principal Accounting
and Financial Officer)
/S/ RICHARD L. ANTONINI* Director
Richard L. Antonini
/S/ JOHN D. BOYLES* Director
John D. Boyles
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<PAGE>
/S/ WILLIAM P. CRAWFORD* Director
William P. Crawford
/S/ RICHARD M. DEVOS, JR.* Director
Richard M. DeVos, Jr.
/S/ WILLIAM G. GONZALEZ* Director
William G. Gonzalez
/S/ JAMES P. HACKETT* Director
James P. Hackett
/S/ ERINA HANKA* Director
Erina Hanka
/S/ EARL D. HOLTON* Director
Earl D. Holton
/S/ MICHAEL J. JANDERNOA* Director
Michael J. Jandernoa
/S/ FRED P. KELLER* Director
Fred P. Keller
/S/ JOHN P. KELLER* Director
John P. Keller
/S/ HENDRIK G. MEIJER* Director
Hendrik G. Meijer
/S/ PERCY A. PIERRE* Director
Percy A. Pierre
/S/ MARILYN J. SCHLACK* Director
Marilyn J. Schlack
/S/ PETER F. SECCHIA* Director
Peter F. Secchia
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<PAGE>
/S/ MARGARET SELLERS WALKER* Director
Margaret Sellers Walker
*By /S/MARY E. TUUK
Mary E. Tuuk
ATTORNEY-IN-FACT
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
of Old Kent Capital Trust II, Old Kent Capital Trust III and Old Kent
Capital Trust IV certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and 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 July 17, 1998.
OLD KENT CAPITAL TRUST II
By: Old Kent Financial Corporation,
Sponsor
By: /S/MARY E. TUUK
Mary E. Tuuk
Senior Vice President and Secretary
OLD KENT CAPITAL TRUST III
By: Old Kent Financial Corporation,
Sponsor
By: /S/MARY E. TUUK
Mary E. Tuuk
Senior Vice President and Secretary
OLD KENT CAPITAL TRUST IV
By: Old Kent Financial Corporation,
Sponsor
By: /S/MARY E. TUUK
Mary E. Tuuk
Senior Vice President and Secretary
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<PAGE>
EXHIBITS.
1(a) --Form of Underwriting Agreement -- Capital Securities.
1(b) --Form of Purchase Agreement -- Common Securities.
1(c) --Form of Purchase Agreement -- Junior Subordinated Deferrable
Interest Debentures.
3(a) --Restated Articles of Incorporation of Old Kent Financial
Corporation. Previously filed as Exhibit 3.1 to Old Kent
Financial Corporation's Form S-4 (No. 333-56209) filed
June 4, 1998.
3(b) --Bylaws of Old Kent Financial Corporation. Previously
filed as Exhibit 3(b) to Old Kent Financial Corporation's
Form 10-Q Quarterly Report filed for the fiscal quarter
ended June 30, 1997. Here incorporated by reference.
4(a)(i) --Certificate of Trust of Old Kent Capital Trust II.
4(a)(ii) --Certificate of Trust of Old Kent Capital Trust III.
4(a)(iii) --Certificate of Trust of Old Kent Capital Trust IV.
4(b)(i) --Declaration of Trust of Old Kent Capital Trust II.
4(b)(ii) --Declaration of Trust of Old Kent Capital Trust III.
4(b)(iii) --Declaration of Trust of Old Kent Capital Trust IV.
4(b)(iv) --Form of Amended and Restated Declaration of Trust of
Old Kent Capital Trust II, Old Kent Capital Trust III
and Old Kent Capital Trust IV.
4(c) --Form of Indenture.
4(d) --Form of First Supplemental Indenture.
4(e) --Form of Capital Security (included in Exhibit 4(b)(iv)).
4(f) --Form of Junior Subordinated Deferrable Interest Debenture
(included in Exhibit 4(c) and Exhibit 4(d)).
4(g) --Form of Guarantee.
5(a) --Opinion of Richards, Layton & Finger, special Delaware counsel,
as to the legality of the Capital Securities.
5(b) --Opinion of Warner Norcross & Judd llp as to the legality
of the Junior Subordinated Deferrable Interest Debentures
and the Guarantees.
8 --Opinion of Warner Norcross & Judd llp as to certain U.S.
federal income tax matters.
12 --Statement of the ratio of earnings to fixed charges.
23(a) --Consent of Arthur Andersen llp
23(b) --Consent of Richards, Layton & Finger, special Delaware counsel
(included in Exhibit 5(a)).
23(c) --Consent of Warner Norcross & Judd llp (included in
Exhibit 5(b) and Exhibit 8).
24(a) --Powers of Attorney for Old Kent Financial Corporation.
24(b) --Powers of Attorney for Old Kent Financial Corporation,
as sponsor, to sign the Registration Statement on
behalf of Old Kent Capital Trust II, Old Kent Capital
Trust III and Old Kent Capital Trust IV (included in
Exhibits 4(b)(i), 4(b)(ii) and 4(b)(iii)).
<PAGE>
25 --Form T-1 Statement of Eligibility and Qualification of
Bankers Trust Company, as Trustee under the Indenture,
the Guarantees and the Amended and Restated Declarations
of Trust of Old Kent Capital Trust II, Old Kent Capital
Trust III and Old Kent Capital Trust VI.
99 --Form of Prospectus Supplement.
<PAGE>
EXHIBIT 1(a)
$___________________________
OLD KENT CAPITAL TRUST [II, III, OR IV]
[________%] [VARIABLE RATE] SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $_________ PER SECURITY)
UNDERWRITING AGREEMENT
__________ ___, 199___
[Name[s] of Representative[s]]
as representative[s] of the several underwriters
named in Schedule I hereto
c/o_______________________
[Address]
Ladies and Gentlemen:
Old Kent Capital Trust [II, III, or IV], a Delaware statutory
business trust (the "Trust"), proposes, subject to the terms and conditions set
forth herein, to sell to the Underwriters named in Schedule I hereto (the
"Underwriters," which term shall include any underwriters substituted as pro-
vided in Section 9) the respective number set forth in Schedule I of the [____%]
[Variable Rate] Subordinated Capital Income Securities Series [II, III or IV]
(liquidation amount $______ per security) (the "Capital Securities") represent-
ing preferred beneficial interests in the Trust, guaranteed (the "Guarantee"
and, together with the Capital Securities, the "Securities") by Old Kent
Financial Corporation, a Michigan corporation (the "Company") to the extent set
forth in a Guarantee Agreement (the "Guarantee Agreement") to be entered into
between the Company and Bankers Trust Company, as Guarantee Trustee (the
"Guarantee Trustee"). The Company will be the owner of all of the common
beneficial interests in the Trust represented by Common Securities (the "Common
Securities"). Concurrently with the issuance of the Capital Securities and the
Company's purchase of all of the Common Securities of the Trust, the Trust will
invest the proceeds of each in a corresponding series of the Company's
[________%] [Variable Rate] Junior Subordinated Debentures Series [II, III or
IV] (the "Junior Subordinated Debentures"). The Junior Subordinated Debentures
are to be issued pursuant to an Indenture (as amended or supplemented to the
date hereof, the "Indenture") between the Company and Bankers Trust Company, as
Indenture Trustee (the "Indenture Trustee").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND
THE TRUST. The Company and the Trust, jointly and severally, represent and
warrant to, and agree with each of the Underwriters that as of the date hereof:
<PAGE>
(a) The Company and the Trust have filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), a registration statement (File
No.__________________________) including a prospectus relating to the
Securities and the Junior Subordinated Debentures (collectively, the
"Registered Securities") and the registration statement has become
effective. The term "Registration Statement" means the registration
statement as amended to the date of this Agreement and any related
registration statement filed pursuant to Section 462(b) of the Securities
Act; the term "Basic Prospectus" means the prospectus included in the
Registration Statement but does not include any forms of prospectus
supplement included in the Registration Statement; and the term
"Preliminary Prospectus" means the Basic Prospectus together with a
preliminary prospectus supplement specifically relating to the Registered
Securities. The Company and the Trust will file with the Commission a
prospectus supplement specifically relating to the Registered Securities
pursuant to Rule 424 under the Securities Act (the "Prospectus
Supplement"), together, if required, with the Basic Prospectus
(collectively, the "Prospectus"). As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "Preliminary Prospectus"
shall include in each case the material, if any, incorporated by reference
therein and the terms "amend", "amendment" and "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the effective date of the Registration Statement,
or the date of any Preliminary Prospectus or the Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange
Act and the rules and regulations thereunder, (ii) each part of the
Registration Statement (including the documents incorporated by reference
therein), when such part became effective or was filed, as the case may
be, complied in all material respects with the Securities Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
respective rules and regulations thereunder and did not contain any untrue
statements of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement at the date of the Prospectus
Supplement and at the Closing Time (as defined herein) will meet the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
will comply in all other material respects with that rule, (iv) each
Preliminary Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act will comply when so filed in all material respects with the
Securities Act and the rules and regulations thereunder, (v) the
Registration Statement, the Prospectus, the Amended and Restated
Declaration of Trust relating to the Trust (the "Declaration") between the
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<PAGE>
Company, as sponsor, certain employees of the Company or its subsidiaries,
as Regular Trustees, Bankers Trust Company, as Property Trustee, and
Bankers Trust (Delaware), as Delaware Trustee (collectively, the
"Trustees"), the Guarantee and the Indenture comply and, as amended or
supplemented, will comply in all material respects with the Securities Act
and the Trust Indenture Act and the respective rules and regulations
thereunder, and (vi) at the date of the Prospectus Supplement, at the date
of any further amendment to the Registration Statement or supplement to
the Prospectus and at the Closing Time, the Registration Statement and the
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the case of the Registration Statement,
not misleading, and in the case of the Prospectus, in light of the
circumstances under which they were made, not misleading, except that this
representation and warranty does not apply to (a) that part of the
Registration Statement which constitutes the Statements of Eligibility and
Qualification (Forms T-1) under the Trust Indenture Act of the Trustees,
the Indenture Trustee and the Guarantee Trustee or (b) statements in or
omissions from any such documents based upon information furnished to the
Company or the Trust in writing by or in any document prepared by any
Underwriter or by the Trustees, the Indenture Trustee or the Guarantee
Trustee expressly for use therein.
(c) Except as set forth in or contemplated by the Registration
Statement or the Prospectus, there has been no material adverse change in
the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, since the
respective dates as of which information is given in the Registration
Statement or in the Prospectus, each as amended or supplemented as of the
Closing Time.
(d) Each of the Company and its principal subsidiary, Old Kent
Bank, a Michigan banking corporation (the "Bank"), has been duly
incorporated and is validly existing in good standing under the laws of
the State of Michigan, is duly qualified to do business and is in good
standing as foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
reasonably be expected to have a material adverse effect on the business
or property of the Company and its subsidiaries taken as a whole, and has
all power and authority necessary to own or hold its properties and to
conduct the business described in the Prospectus.
(e) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and all of the issued shares of capital stock of the Bank
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (subject to the provisions of the
Michigan Banking Code).
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<PAGE>
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware with the trust power and authority to own property
and conduct its business as described in the Prospectus, and has conducted
and will conduct no business other than the transactions contemplated by
this Agreement as described in the Prospectus. The Trust is not a party
to or bound by any agreement or instrument other than this Agreement, the
Declaration and the agreements and instruments contemplated by the
Declaration or described in the Registration Statement and the Prospectus.
The Trust has no liabilities or obligations other than those arising out
of the transactions contemplated by this Agreement or the Declaration or
described in the Registration Statement and the Prospectus; and the Trust
is not a party to or subject to any action, suit or proceeding of any
nature.
(g) The Declaration has been duly authorized and, when duly
executed and delivered by the Company, as sponsor, and the Trustees, and
assuming due authorization, execution and delivery of the Declaration by
the Property Trustee and the Delaware Trustee, the Declaration will be a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing, and will conform in all material respects to all statements
relating thereto in the Prospectus.
(h) The Capital Securities and the Common Securities, upon
issuance and delivery and payment therefor in the manner described herein,
will be duly authorized, validly issued, fully paid and non-assessable and
will conform in all material respects to the descriptions of the Capital
Securities and the Common Securities contained in the Prospectus.
(i) Each of the Indenture and the Guarantee Agreement has been
duly authorized and, when duly executed and delivered by the proper
officers of the Company (assuming, in the case of the Indenture, due
execution and delivery by the Indenture Trustee and, in the case of the
Guarantee Agreement, due execution and delivery by the Guarantee Trustee)
and delivered by the Company, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and the Junior
Subordinated Debentures and the Guarantee have been duly authorized, and,
when duly executed, authenticated, issued and delivered as provided in the
Indenture and the Guarantee Agreement, respectively, and delivered against
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<PAGE>
payment of the purchase price therefor, will be duly and validly issued
and outstanding, and will constitute valid and legally binding obligations
of the Company, entitled to the benefits of the Indenture and the
Guarantee Agreement, respectively, and enforceable against the Company in
accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and the Junior Subordinated Debentures and the Guarantee,
when issued and delivered, will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(j) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Company.
(k) The execution, delivery and performance of this Agreement, the
Declaration, the Capital Securities and the Common Securities by the
Trust, the purchase of the Junior Subordinated Debentures by the Trust
from the Company, the distribution of the Junior Subordinated Debentures
upon the liquidation of the Trust in the circumstances contemplated by the
Declaration and described in the Prospectus, and the consummation of the
transactions contemplated herein and in the Declaration (the "Trust
Transactions"), will not conflict with or result in a violation of any
statute or order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Trust or any of its assets. Except
for any consents, approvals, authorizations, registrations or
qualifications required under the Securities Act and the Exchange Act that
have been obtained or made or that may be required under applicable
foreign and state securities laws in connection with the purchase and
distribution of the Capital Securities by the Underwriters and the
clearance of such purchase and distribution with the National Association
of Securities Dealers, Inc. ("NASD"), no consent, approval, authorization
or order of or filing or registration with, any such court or governmental
agency or body is required for the Trust Transactions.
(l) The execution, delivery and performance of this Agreement, the
Declaration, the Guarantee Agreement, the Indenture and the Junior
Subordinated Debentures by the Company, the purchase of the Common
Securities by the Company from the Trust, and the consummation by the
Company of the transactions herein (the "Company Transactions") will not
result in any of the following occurring which would reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole: a conflict with or a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the properties or assets of the Company or any of its subsidiaries is
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<PAGE>
subject, or any violation of the provisions of the charter or bylaws of
the Company or any of its subsidiaries or any statute or order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or any of their properties or
assets. Except for any consents, approvals, authorizations, registrations
or qualifications required under the Securities Act and the Exchange Act
that have been obtained or made or that may be required under applicable
foreign and state securities laws in connection with the purchase and
distribution of the Capital Securities by the Underwriters and the
clearance of such purchase and distribution by the NASD, no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the Company
Transactions.
(m) Neither the Company nor the Bank has sustained, since the
respective dates as of which information is given in the Registration
Statement or in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Registration Statement or the Prospectus; and, since such dates, there
has not been any material adverse change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement or the Prospectus.
(n) The financial statements (including the related notes and
supporting schedules) included in the Prospectus present fairly in all
material respects the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(o) Arthur Andersen LLP, who have certified certain financial
statements of the Company, whose report is incorporated by reference in
the Prospectus and who will deliver the letter referred to in Section 7(f)
hereof, are independent public accountants as required by the Securities
Act and the rules and regulations thereunder during the periods covered by
the financial statements on which they reported contained in the
Prospectus.
(p) Except as may be described in the Registration Statement or
the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or asset of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
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<PAGE>
would reasonably be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations or business of the Company and its subsidiaries taken as a
whole; and to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(q) Since the respective dates as of which information is given in
the Registration Statement or the Prospectus through the date hereof, and
except as may otherwise be disclosed in the Registration Statement or the
Prospectus, neither the Company nor the Trust has (i) issued or granted
any securities, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred in
the ordinary course of business, (iii) entered into any transaction not in
the ordinary course of business or (iv) in the case of the Company,
declared or paid any dividend on its capital stock (except cash dividends
with respect to the Company's common stock in amounts per share that are
consistent with past practice and any increases in such amounts that are
publicly announced before the date of the Registration Statement or
Prospectus).
(r) Neither the Company nor the Bank (i) is in violation of its
charter or by-laws, (ii) is in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation in any material respect of any
material law, ordinance, governmental rule, regulation or court decree to
which it or its properties or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
properties or assets or to the conduct of its business.
(s) Neither the Company nor any subsidiary nor the Trust is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission thereunder.
(t) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended. The deposit accounts of
the Bank are insured by the Federal Deposit Insurance Corporation ("FDIC")
to the fullest extent permitted by law and the rules and regulations of
the FDIC, and no proceedings for the termination of such insurance are
pending or, to the best of the Company's knowledge, threatened.
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2. PURCHASE OF THE CAPITAL SECURITIES BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at a purchase price of $____ per
Security, the number of Securities set forth opposite the name of each
Underwriter set forth in Schedule I hereto, plus any additional Securities the
Underwriters may become obligated to purchase pursuant to the provisions of
Section 9 hereof.
(b) As compensation to the Underwriters for their commitments
hereunder, and in view of the fact that the proceeds of the sale of the
Securities will be used by the Trust to purchase the Junior Subordinated
Debentures from the Company, the Company agrees to pay you, as representative[s]
of and for the accounts of the several Underwriters, an amount equal to $______
per Security for the Securities to be delivered at the Closing Time.
(c) The Company shall not be obligated to deliver any of the
Securities except upon receipt of the opinion described in Section 7(k) and
payment for all of the Securities to be purchased as provided in this Agreement.
3. OFFERING. Upon your authorization of the release of the
Securities, the Underwriters propose to offer the Securities for sale to the
public upon the terms set forth in the Prospectus. [In connection with such
offering, each Underwriter severally agrees that it will comply with Rule 2720
of the Rules of Conduct of the NASD and will not execute any transaction in the
Securities in a discretionary account without the prior written specific
approval of that Underwriter's customer.]
4. DELIVERY OF AND PAYMENT FOR THE SECURITIES.
(a) Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of ______________________ located at
____________________ or at such other place as shall be agreed upon by the
Company and you, at 10:00 a.m. Eastern time on the third (or fourth, if pricing
occurs after 4:30 p.m Eastern time) on any given day) business day after the
date of this Agreement (unless postponed in accordance with Section 9), or any
other time or date not later than ten business days after such date that you and
the Company may determine (such date and time of payment and delivery, the
"Closing Time").
(b) At the Closing Time, payment for the Securities shall be made
to the Trust in same-day funds by wire transfer to the account or accounts
specified by the Trust before the Closing Time or by any other means on which
the parties agree before the Closing Time against delivery to you, as
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representative[s] of and for the respective accounts of the several Under-
writers, of certificates evidencing the Capital Securities to be purchased by
them. It is understood that each Underwriter has designated [each of] you, for
its account, to accept delivery of, receipt for, and make payment of the
purchaser price for, the Securities that it has agreed to purchase. _________,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time but such payment shall not relieve the Underwriter from its obligations
under this Agreement.
(c) Upon delivery, the Capital Securities shall be registered in
the names and in the denominations requested by you in writing not less than two
full business days prior to the Closing Time. For the purpose of expediting the
checking and packaging of certificates evidencing the Capital Securities, the
Trust agrees to make such certificates available for inspection at least 24
hours prior to the Closing Time.
5. FURTHER AGREEMENTS OF THE COMPANY AND THE TRUST. The Company
and the Trust, jointly and severally, agree with the Underwriters:
(a) The Company and the Trust will cause the Prospectus Supplement
and, if required, the Basic Prospectus to be filed pursuant to Rule 424
under the Securities Act and, prior to the termination of the offering of
the Securities, will promptly advise you (i) when any amendment to the
Registration Statement shall have become effective or any further
supplement to the Prospectus shall have been filed, (ii) of any request by
the Commission for any amendment of the Registration Statement or further
supplement to the Prospectus or for any additional information, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by
the Company or the Trust of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. Prior to the termination of the offering of the Securities,
neither the Company nor the Trust will file any amendment to the
Registration Statement or any further supplement to the Prospectus unless
the Company or the Trust has furnished you a copy for review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object in writing within a reasonable time (which in
any event shall be within four business days) after being furnished a
copy. The Company and the Trust will each use its reasonable efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) Promptly from time to time to take any action that you may
reasonably request to qualify the Securities, or the Junior Subordinated
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Debentures issuable upon exchange of the Capital Securities, for offering
and sale under the securities laws of any jurisdictions that you may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, PROVIDED that in
connection therewith neither the Company nor the Trust shall be required
to qualify as a foreign corporation, to file a general consent to service
of process or take any other action that would subject the Company or the
Trust to service of process in any jurisdiction.
(c) To furnish you with _______ signed copies of the Registration
Statement, including exhibits (other than exhibits that are incorporated
by reference), and all amendments thereto, and to deliver to the
Underwriters the Prospectus in quantities that you may reasonably request.
(d) If at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to
comply with the Securities Act or the Exchange Act, to prepare and file
such document and furnish without charge to each Underwriter as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(e) To make generally available to its security holders and to you
as soon as practicable, but in any event not later than 45 days after the
end of the 12-month period beginning at the end of the fiscal quarter of
the Company during which the filing of the Prospectus pursuant to Rule 424
under the Securities Act first occurs (except not later than 90 days after
the end of such 12-month period if such filing date is in the Company's
last fiscal quarter), an earnings statement of the Company and its
consolidated subsidiaries that will satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) To apply the net proceeds from the sale of the Capital
Securities being sold by the Trust as set forth in the Prospectus.
(g) During the time that a prospectus relating to the Securities
is required to be delivered under the Securities Act, to file all
documents required to be filed by the Company with the Commission under
the Exchange Act and the rules and regulations thereunder.
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<PAGE>
(h) To take any steps that are necessary to ensure that neither
the Company, any subsidiary of the Company nor the Trust shall become an
"investment company" within the meaning of such term under the 1940 Act
and the rules and regulations of the Commission thereunder.
[(i) During a period of _____ days from the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of any
additional securities of the Trust substantially similar to the Capital
Securities or any securities convertible into or exchangeable for or that
represent the right to receive any Capital Securities, without the consent
(which consent shall not be unreasonably withheld) of __________________.]
[(j) To use their reasonable efforts to effect the listing of the
Capital Securities on The NASDAQ Stock Market.]
6. EXPENSES. The Company agrees to pay all costs incident to the
performance of the obligations of the Company and the Trust under this Agree-
ment, including (i) the fees and expenses of the Company's and the Trust's
counsel and accountants; (ii) the costs incident to the preparation, printing
and filing of the Registration Statement, the Prospectus and any amendments or
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters; (iii) the costs of preparing, issuing and delivering the
certificates evidencing the Capital Securities; (iv) the fees and expenses of
qualifying the Capital Securities under the securities laws of the several
jurisdictions as provided in Section 5(b) and of preparing, printing and
distributing a Blue Sky Survey (including related reasonable fees and expenses
of counsel to the Underwriters); (v) any fees charged by securities rating
services for rating the Capital Securities; (vi) the reasonable fees and
expenses of the Property Trustee, the Guarantee Trustee and the Indenture
Trustee; and [(viii) the costs incident to the listing of the Capital Securities
on The NASDAQ Stock Market]; PROVIDED, HOWEVER, that except as expressly
provided in this Section, the Underwriters will pay their owns costs, fees and
expenses, including the fees and expenses of their counsel, transfer taxes on
resale of the Securities and any advertising expenses connected with any offers
they make.
7. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
when made and at the Closing Time, of the representations and warranties of the
Company and the Trust contained herein, to the performance by the Company and
the Trust of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Registration Statement shall have become effective and at
the Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act or
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<PAGE>
proceedings therefor initiated by the Commission. A prospectus containing
the information required by Rule 430A under the Securities Act shall have
been filed with the Commission in accordance with Rule 424(b) under the
Securities Act (or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company and the Trust have elected
to comply with Rule 434 under the Securities Act, a term sheet as
contemplated by that Rule shall have been filed with the Commission in
accordance with Rule 424(b). No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been initiated or threatened by the Commission.
(b) You shall not have discovered and disclosed to the Company and
the Trust on or prior to the Closing Time that the Prospectus or any
amendment or supplement thereto contains any untrue statement of a fact
which, in the reasonable opinion of counsel for the Underwriters, is
material or omits to state any fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein, in light of the circumstances in which they were
made, not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indenture, the
Declaration, the Junior Subordinated Debentures, the Guarantee Agreement,
the Capital Securities, the Common Securities, the Registration Statement,
and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
respects to counsel for the Underwriters, and the Company and the Trust
shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) Warner Norcross & Judd LLP, counsel for the Company and the
Trust, shall have furnished to you their written opinion, addressed to you
as Representative[s] of the Underwriters and dated the Closing Time, in
form and substance reasonably satisfactory to you, to the effect set forth
in Exhibit A hereto. In rendering such opinion, counsel may state that
they are passing only on matters of Michigan and United States Federal law
and that their opinion assumes that this Agreement and the matters
addressed in their opinion are subject to and governed by Michigan law
(without regard to conflict of law principles). In rendering such
opinion, counsel may rely upon opinions, each dated the Closing Time, of
(i) other counsel retained by them or by the Company or the Trust or (ii)
counsel to the Underwriters (whose opinion shall state that it may be so
relied upon), as to laws of any jurisdiction other than the United States
or the State of Michigan, PROVIDED that (i) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion
is delivered to you, and (ii) counsel shall state in their opinion that
they believe that they and the Underwriters are justified in relying
thereon. Insofar as such opinions involve factual matters, such counsel
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<PAGE>
may rely, to the extent such counsel deems proper, upon certificates of
officers of the Company and its subsidiaries, officers of the Trust and
public officials.
(e) Richards, Layton & Finger, special Delaware counsel to the
Company and the Trust, shall have furnished to you their written opinion,
addressed to you as Representative[s] of the Underwriters and dated the
Closing Time, in form and substance reasonably satisfactory to you, to the
effect set forth in Exhibit B hereto.
(f) You shall have received at the Closing Time a letter,
addressed to you as Representative[s] of the Underwriters and dated the
Closing Time, in form and substance reasonably satisfactory to you, from
Arthur Andersen LLP, independent public accountants, containing statements
and information of the type ordinarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain other financial information contained or incorporated by reference
in the Prospectus as identified by you.
(g) The Company and the Trust shall have furnished to you a
certificate, dated the Closing Time, of the Chairman of the Board,
President or a Vice President of the Company and its chief financial
officer stating that:
(i) The representations, warranties and agreements of the
Company and the Trust in Section 1 are true and correct as of the
Closing Time and the Company has complied with all its agreements
contained herein;
(ii) Since the respective dates as of which information is
given in the Registration Statement or in the Prospectus, there has
not been any adverse material change in the business, operations or
financial condition of the Company and its subsidiaries taken as a
whole, other than as set forth in or contemplated by the
Registration Statement or Prospectus; and
(iii) They have carefully examined the Prospectus and, in
their opinion (A) the Prospectus, as of its date, did not include
any untrue statement of a material fact and did not omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and (B) since the date of the Prospectus no event has
occurred to the Company or its subsidiaries that under the
Securities Act and the rules and regulations thereunder is required
to be but has not been set forth in a supplement or amendment to the
Prospectus.
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the respective dates as of which information is given
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<PAGE>
in the Registration Statement or in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, other than as set forth
in or contemplated by the Registration Statement or Prospectus or (ii)
since such dates there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change
in or affecting the general affairs, management financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, other than as set forth in or contemplated
by the Registration Statement or Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in your reasonable judgment
so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the Capital Securities on the
terms and in the manner contemplated by the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Capital
Securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Capital Securities.
(j) After the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or Michigan state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in your
reasonable judgment, impracticable or inadvisable to proceed with the
offering or delivery of the Capital Securities on the terms and in the
manner contemplated in the Prospectus.
(k) You, the Company and the Trust shall have received at the
Closing Time a written opinion of Warner Norcross & Judd LLP, as special
tax counsel to the Company and the Trust, in form and substance reasonably
satisfactory to you and the Company, on certain matters relating to United
States Federal tax law. The Company acknowledges that it may be requested
to make certain representations in connection with the opinion.
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[(l) The Capital Securities shall have been approved for listing on
The NASDAQ Stock Market, subject to official notice of issuance.]
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter,
its officers and employees and each person, if any, who controls each Under-
writer 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 any loss, claim, damage, liability or action relating to
purchases and sales of Capital Securities), to which the Underwriter, officer,
employee 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 the Registration Statement or the Prospectus, as
amended or supplemented, or (ii) the omission or alleged omission to state
therein any material fact required to be stated therein or necessary to make the
statements therein (A) in the case of the Registration Statement, not misleading
and (B) in the case of the Prospectus, in light of the circumstances under which
they were made, not misleading, and shall reimburse each Underwriter and each
such officer, employee and controlling person promptly upon demand for any legal
or other expenses reasonably incurred by the them 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 the Company 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 (x) made therein in reliance upon and in conformity with the written
information furnished to the Company or the Trust by or on behalf of any
Underwriter through you, or by or on behalf of any Trustee, the Indenture
Trustee or the Guarantee Trustee, specifically for inclusion therein or the
Statements of Eligibility and Qualification (Forms T-1) under the Trust
Indenture Act of any of the trustees named therein or (y) made in any
Preliminary Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting the loss, claim, damage, liability
or action purchased Securities but did not receive a copy of the Prospectus (as
amended or supplemented), if required by law, at or before the written
confirmation of the sale of such Securities to such person. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to the each Underwriter or to any officer, employee or
controlling person of each Underwriter.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, officers and employees, the Trust, each
Trustee, and each person, if any, who controls the Company or 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, any loss, claim, damage, liability or action relating to purchases
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and sales of Capital Securities), to which the Company, any such director,
employee, or officer, the Trust, or any such Trustee or any 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 the
Registration Statement or the Prospectus, as amended or supplemented, or (ii)
the omission or alleged omission to state therein any material fact required to
be stated therein or necessary to make the statements therein (A) in the case of
the Registration Statement, not misleading and (B) in the case of the
Prospectus, in light of the circumstances under which they were made, 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 the written information furnished to the Company or
the Trust by or on behalf of any Underwriter through you specifically for
inclusion therein and shall reimburse the Company and any such director,
employee, or officer, or the Trust or any such Trustee, or any such controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Company or any such director, employee, or officer, or the Trust or any
such Trustee, or any such 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 the Underwriters may otherwise
have to the Company or any such director, officer or employee, or the Trust or
any such Trustee, or any such 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 writ-
ing 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
notify 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. The assumption of the
defense of any claim or action by an indemnifying party shall not constitute an
admission of responsibility to indemnify or in any manner impair or restrict
that party's rights to later seek to be reimbursed its costs and expenses if
indemnification with respect to the claim or action was not required. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of any claim or action, the indemnifying party shall not be
liable to the indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof;
PROVIDED, HOWEVER, that the indemnified party shall have the right to employ its
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own counsel, but the fees and expenses of such counsel will be at the expense of
the indemnified party unless employment of such counsel has been authorized in
writing by the Company or the indemnifying party shall have not have employed
counsel reasonably satisfactory to the indemnified party within a reasonable
time after notice of the claim or action, in any of which events the fees and
expenses of the indemnified party shall be borne by the indemnifying party. It
is understood that in no event shall the Company and the Trust be liable for the
fees and expenses of more than one firm of attorneys (in addition to local
counsel) for all Underwriters and their officers, employees and controlling
persons, which firm may be designated by you, in connection with any one action
or separate but similar actions arising out of the same general allegations or
circumstances. Each indemnified party, as a condition of the indemnity and
contribution agreements contained in this 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 or action in respect of which indemnification or
contribution may be sought hereunder unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim or action, 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 claim or
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 in accordance with this Section 8. In addition, no such
settlement, compromise or consent by any indemnified party shall be binding on
any indemnifying party without the indemnifying party's consent (which consent
shall not be unreasonably withheld) for purposes of the indemnifying party's
obligations under this Agreement or otherwise. Any consent of any indemnified
party under this paragraph may be given by you in the case of parties
indemnified pursuant to Section 8(a) above.
(d) If the indemnification provided for in this Section 8 is
applicable by its terms but for any reason (other than failure to provide notice
to the indemnifying parties as provided in Section 8(c)) is 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, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Trust on the one
hand and the Underwriters on the other from the offering of the Capital
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Trust on the one hand and the Underwriters on the
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other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Trust on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Capital Securities purchased under
this Agreement (net of commissions and discounts but before deducting expenses)
received by the Trust on the one hand, and the total compensation received by
the Underwriters with respect to the Capital Securities purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the shares of the Capital Securities under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. 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 Company and the Trust on the one
hand or the Underwriters on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Trust and the Underwriters 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 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 Underwriter
(except as may be provided in any Agreement Among Underwriters) shall be
required to contribute any amount in excess of the amount by which the total
price at which the Capital Securities sold and distributed by it was offered to
the purchasers exceeds the amount of any damages which that Underwriter 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.
(e) The Underwriters confirm that the statements set forth in
paragraphs ____ under the caption "Plan of Distribution" in the Base Prospectus
and paragraphs _____ under the caption "Plan of Distribution" in the Prospectus
Supplement are correct and constitute the only information furnished in writing
to the Company or the Trust by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement or the Prospectus.
9. DEFAULT BY AN UNDERWRITER.
(a) If one or more Underwriters shall fail at the Closing Time to
purchase the Capital Securities that it or they are obligated to purchase under
this Agreement, and if the number of Capital Securities to which the default
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<PAGE>
relates (the "Defaulted Securities") does not (after giving effect to any
arrangements made by you or the Company pursuant to Section 9(b) below) exceed
10% of the total number of Capital Securities to be purchased by all Under-
writers under this Agreement, then the Defaulted Securities shall be purchased
by the non-defaulting Underwriters in the proportion that their respective
purchase obligations as set forth in Schedule I bear to the aggregate number of
Capital Securities to be purchased by all non-defaulting Underwriters.
(b) If the number of Defaulted Securities exceeds 10% of the total
number of Capital Securities to be purchased by all Underwriters under this
Agreement, you may in your discretion arrange for yourself or for another party
or parties (including any non-defaulting Underwriters that so agree) to purchase
the number of Defaulted Securities that exceed such 10% (the "Excess Securi-
ties") on the terms set forth in this Agreement. If within five days after the
default you do not arrange for the purchase of all of the Excess Securities, and
within an additional five days the Company has not arranged for the purchase of
any remaining Excess Securities, this Agreement will terminate without liability
on the party of any party hereto (except to the extent provided in Section 6),
except that nothing in this Agreement shall relieve the defaulting Underwriter
or Underwriters of its or their liability, if any, to the other Underwriters,
the Company or the Trust for damages relating to the default.
(c) If the Defaulted Securities are to be purchased as provided
above, either you or the Company shall have the right to postpone the Closing
Time for a period not exceeding five business days to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. The term "Underwriter" as used in this Agreement means any party
substituted for an Underwriter under this Section 9.
10. TERMINATION. You shall have the right to terminate this
Agreement at any time by written notice given to and received by the Company and
the Trust prior to delivery of and payment for the Capital Securities if, prior
to that time, any of the events described in Sections 7(h), 7(i) or 7(j) shall
have occurred and, in your reasonably judgment, the effect of any such event is
to make it impracticable or inadvisable to proceed with the offering or delivery
of the Capital Securities on the terms set forth in and in the manner
contemplated by the Prospectus.
11. REIMBURSEMENT OF CERTAIN EXPENSES. If (a) the Trust shall fail
to tender the Capital Securities for delivery to the Underwriters for any reason
(other than a breach of this Agreement by any Underwriter), or (b) the
Underwriters shall decline to purchase the Capital Securities for any reason
permitted under this Agreement (other than pursuant to or for the reasons
specified in Sections 7(j) or 9(b) hereof), the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them in
connection with this Agreement and the proposed purchase of the Capital
Securities, and upon demand the Company shall pay the full amount thereof to the
Underwriters.
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<PAGE>
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to any Underwriter, shall be delivered or sent by mail,
telex or facsimile transmission to you at _____________________________
(facsimile: ____________________);
(b) if to the Company or the Trust, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Prospectus, Attention: Corporate Secretary (facsimile: (616)
771-4378), with a copy to Gordon R. Lewis at Warner Norcross & Judd LLP,
900 Old Kent Building, 111 Lyon Street, N.W., Grand Rapids, Michigan 49503
(facsimile: (616) 752-2500).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the officers and employees of the Underwriters and the person or
persons, if any, who control each Underwriter within the meaning of Section 15
of the Securities Act and (b) the representations, warranties, indemnities and
agreements of the Underwriters contained in this Agreement shall be deemed to be
for the benefit of directors, officers and employees of the Company and the
Trustees and any person controlling the Company or the Trust within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of
Securities from any Underwriter shall be deemed to be a successor solely by
reason of the purchase.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Trust and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 under the Securities Act.
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<PAGE>
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF [NEW YORK].
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
* * * * * *
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<PAGE>
If the foregoing correctly sets forth our agreement, please indicate
your acceptance in the space provided for that purpose below, upon which this
instrument, along with all counterparts, will become a binding agreement among
the Company, the Trust and the Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By: ____________________________________
Its: _______________________________
OLD KENT CAPITAL TRUST [II, III or IV]
By: ____________________________________
Its: Regular Trustee
Confirmed and accepted as of the date
first written above:
By: ________________________________
By: ________________________________
Authorized Signatory
For [itself] [themselves] and as Representative[s] of the other Underwriters
named in Schedule I hereto.
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<PAGE>
SCHEDULE I
NUMBER OF
NAME OF UNDERWRITER CAPITAL SECURITIES
Total .......................................... -------------------
===================
<PAGE>
EXHIBIT A
FORM OF OPINION OF WARNER NORCROSS & JUDD LLP,
COMPANY COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 7(d)
(i) The Company and the Bank have been duly incorporated and are
validly existing in good standing under the laws of their respective
jurisdictions of incorporation, and have all corporate power and authority
necessary to own or hold their respective properties and conduct the businesses
described in the Prospectus.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company and has been duly executed and delivered by the
Trust.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and, when duly authorized, executed and delivered by
the Indenture Trustee, will constitute a valid and legally binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditor's rights generally, the unenforceability of any indemnity provisions,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(iv) The Junior Subordinated Debentures have been duly authorized,
executed and delivered by the Company, and, when duly authenticated by the
Indenture Trustee and upon payment and delivery will constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, the unenforceability of
any indemnity provisions, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(v) The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and when duly authorized, executed and delivered by the
Guarantee Trustee, will constitute a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, the unenforceability of any indemnity provisions, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
<PAGE>
(vi) The Declaration has been duly authorized, executed and
delivered by the Company.
(vii) The execution, delivery and performance of the Underwriting
Agreement, the Declaration, the Indenture, the Junior Subordinated Debentures
and the Guarantee Agreement (collectively, the "Transaction Documents") by the
Company and the Trust, as applicable, will not result in any violation of the
provisions of the articles of incorporation or bylaws of the Company or any of
its subsidiaries or any statute or rule or regulation or, to the best of our
knowledge, any order of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets, the effects of which violation would reasonably
be expected to have a material adverse effect upon the Company and its
subsidiaries taken as a whole, and, to the best of our knowledge, will not
constitute a breach of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, which breach or default would
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(viii) To our knowledge no consent, approval, authorization,
order, registration or qualification of any Federal or Michigan governmental
agency or body or any Federal or Michigan court is required for the issuance and
sale by the Trust of the Capital Securities, the issuance by the Company of the
Junior Subordinated Debentures, the issuance of the Guarantee Agreement by the
Company and the compliance by the Company and the Trust with all of the
provisions of the Underwriting Agreement, except for such consents approvals,
authorizations, registrations or qualifications that may be required under
applicable foreign and state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters, the clearance
of the offering of the Securities with the NASD and such as have been made or
obtained under the Securities Act and the Exchange Act.
(ix) To the best of our knowledge, the Trust is not a party to or
otherwise bound by any agreement that is not described in the Prospectus.
(x) Neither the Company nor the Trust is required to be registered
as an "investment company" within the meaning of such term under the 1940 Act.
(xi) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended.
(xii) The Registration Statement has become effective under the
Securities Act; to our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened; and the Registration Statement, the
Prospectus and each amendment thereof or supplement thereto and each document
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<PAGE>
incorporated by reference therein (other than the Statements of Eligibility and
Qualification (Forms T-1) under the Trust Indenture Act of the trustees named
therein and the financial statements, schedules and other financial and
statistical information contained or incorporated therein, or that should have
been so contained or incorporated or were otherwise omitted therefrom, as to
which we express no opinion), as of their respective effective or issue dates,
complied as to form in all material respects with the applicable requirements of
the Securities Act and the Exchange Act and the respective rules thereunder
(assuming in each case the correctness and completeness of the statements made
therein).
(xiii) The statements made in the Prospectus under the captions
"Description of Junior Subordinated Debentures", "The Trust", "Description of
Capital Securities", "Description of Guarantee" and "Relationship Among the
Capital Securities, the Junior Subordinated Debentures and the Guarantee",
insofar as such statements purport to constitute summaries of the terms of the
Capital Securities, the Junior Subordinated Debentures and the Guarantee, fairly
summarize in all material respects the terms of the Capital Securities, the
Junior Subordinated Debentures and the Guarantee.
[(xiv) The Capital Securities have been approved for listing on
The NASDAQ Stock Market subject to official notice of issuance.]
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Prospectus or in the docu-
ments incorporated by reference therein (the "Exchange Act Documents") and take
no responsibility therefor, except as and to the extent set forth in paragraphs
(xii) and (xiii) above. In the course of the preparation of the Prospectus, we
participated in conferences with certain officers and employees of the Company,
with representatives of Arthur Andersen LLP and with counsel to the Under-
writers. Based on our examination of the Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Prospectus and our participation in the conferences referred to above, nothing
has come to our attention that would cause us to believe that the Prospectus
(excluding the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that we express no opinion as to the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act of the
trustees named therein and the financial statements, schedules and other
financial and statistical information contained or incorporated therein, or that
should have been so contained or incorporated or were otherwise omitted
therefrom).
-3-
<PAGE>
EXHIBIT B
FORM OF OPINION OF RICHARDS, LAYTON & FINGER,
SPECIAL DELAWARE COUNSEL TO THE COMPANY AND
THE TRUST TO BE DELIVERED PURSUANT TO SECTION 7(e)
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
<Section> 3801 et seq. (the "Delaware Act"), with the business trust power and
authority to own property and to conduct its business as described in the
Prospectus.
(ii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company in
accordance with the terms of the Declaration against payment therefor in
accordance with the terms of the Declaration and as described in the Prospectus,
will be validly issued and (subject to the terms of the Declaration) fully paid
and non-assessable undivided beneficial interests in the assets of the Trust.
Under the Delaware Act and the Declaration, the issuance of the Common
Securities is not subject to preemptive or other similar rights. We note that
the Holders of Common Securities will be subject to the withholding provisions
of Section 10.4 of the Declaration, will be required to make payment or provide
indemnity or security as set forth in the Declaration and will be liable for the
debts and obligations of the Trust to the extent provided in Section 9.1(b) of
the Declaration.
(iii) The Capital Securities have been duly authorized by the
Declaration and, when issued and delivered in accordance with the terms of the
Declaration against payment of the consideration as set forth in the Underwrit-
ing Agreement, the Capital Securities will be validly issued and (subject to the
terms of the Declaration) fully paid and non-assessable undivided beneficial
interest in the assets of the Trust. The Holders of the Capital Securities will
be entitled to the benefits of the Declaration (subject to the limitations set
forth in paragraph (vi) below) and will be entitled to the same limitation of
personal liability as extended to stockholders of private corporations for
profit organized under the Delaware General Corporation Law; PROVIDED that we
express no opinion as to any Holder of a Capital Security that is, was, or
becomes a named Trustee of the Trust. Under the Delaware Act and the
Declaration, the issuance of the Capital Securities is not subject to preemptive
or similar rights. We note that the Holders of Capital Securities will be
subject to withholding provisions of Section 10.4 of the Declaration and will be
required to make payment or provide indemnity or security as set forth in the
Declaration.
(iv) The Trust has the trust power and authority under the
Declaration and the Delaware Act to execute, deliver and perform its obligations
<PAGE>
under the Underwriting Agreement and to issue and perform its obligations under
the Capital Securities and the Common Securities.
(v) All necessary trust action has been taken to duly authorize the
execution and delivery by the Trust of the Underwriting Agreement.
(vi) The Declaration constitutes a valid and binding obligation of
the Company and the Trustees enforceable against the Company and the Trustees in
accordance with its terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, receivership, liquidation, fraudulent
conveyance, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and remedies, (ii) general principles
of equity (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) considerations of public policy and the effect of
applicable law relating to fiduciary duties.
(vii) The issuance and sale by the Trust of the Capital Securities
and the Common Securities, the purchase by the Trust of the Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust of the Trust or the Declaration or (ii) any applicable Delaware law or
administrative regulation.
(viii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Delaware court or
Delaware governmental authority or agency (other than as may be required under
the securities or blue sky laws of the State of Delaware as to which we express
no opinion) is necessary or required to be made or obtained by the Trust in
connection with the due authorization, execution and delivery of the
Underwriting Agreement by the Trust or the Trustees or the offering, issuance,
sale or delivery of the Trust Securities.
(ix) The Holders of the Capital Securities (other than those Holders
who reside or are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware.
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<PAGE>
EXHIBIT 1(b)
COMMON SECURITIES PURCHASE AGREEMENT
THIS COMMON SECURITIES PURCHASE AGREEMENT ("Agreement"), dated as
of __________, _____, is by and between OLD KENT CAPITAL TRUST [II, III, or
IV], a Delaware statutory business trust (the "Trust"), and OLD KENT
FINANCIAL CORPORATION, a Michigan corporation with its principal office in
Grand Rapids, Michigan (the "Company").
WHEREAS, the Company, the Trust, and ________________, as
representative[s] of the several underwriters named therein, have entered
into an Underwriting Agreement dated as of __________, _____ (the
"Underwriting Agreement"), relating to the purchase and sale of the Trust's
[____%] [Floating Rate] Subordinated Capital Income Securities, Series [II,
III or IV], liquidation amount $_____ per security (the "Capital
Securities" and together with the Guarantee (as defined in the Underwriting
Agreement), the "Securities"); and
WHEREAS, in connection with the purchase and sale of the
Securities, the Company, as sponsor of the Trust, desires to purchase from
the Trust, and the Trust desires to sell to the Company, [____%] [Floating
Rate] Common Securities, liquidation amount $1,000.00 per security (the
"Common Securities"), of the Trust.
NOW, THEREFORE, the parties hereto agree, intending to be legally
bound, as follows:
1. PURCHASE AND SALE. In reliance upon the representations and
warranties herein set forth, the Company and the Trust agree that the Trust
will sell to the Company, and the Company will purchase from the Trust,
_________ Common Securities at an aggregate purchase price of $_________.
2. DELIVERY AND PAYMENT. Delivery of and payment for the Common
Securities shall be made at 9:30 a.m. New York City time on the Closing
Date (as defined in the Underwriting Agreement), or at such other date and
time as may be agreed upon by the parties hereto. Delivery of the Common
Securities shall be made to the Company against payment by the Company of
the purchase price thereof to or upon the order of the Trust by wire
transfer of immediately available funds or such other manner of payment as
may be agreed upon by the parties hereto.
3. REPRESENTATIONS AND WARRANTIES.
(a) The Trust represents and warrants that the Common
Securities have been duly and validly authorized and, when
executed and authenticated against payment therefor in accordance
with the provisions of the Amended and Restated Declaration of
Trust of the Trust dated as of __________, ____ (the "Declaration
of Trust"), will be validly issued, fully paid, and
nonassessable.
<PAGE>
(b) The Company represents and warrants that the Common
Securities are being acquired for investment and not with a view
to distribution or resale and, by its acceptance of the Common
Securities, agrees to be bound by the provisions of the
Declaration of Trust.
4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
The parties hereto have caused this Agreement to be duly executed
by their respective officers as of the date first written above.
OLD KENT CAPITAL TRUST [II, III or IV]
By _____________________________________
Name:
Title: Regular Trustee
OLD KENT FINANCIAL CORPORATION
By _____________________________________
Name:
Title:
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<PAGE>
EXHIBIT 1(c)
[______%] [FLOATING RATE] JUNIOR SUBORDINATED
DEFERRABLE INTEREST
DEBENTURES SERIES [II, III, OR IV]
PURCHASE AGREEMENT
THIS [_____%] [FLOATING RATE] JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES SERIES [II, III OR IV] PURCHASE AGREEMENT
("Agreement"), dated as of __________, ____, is by and between OLD KENT
CAPITAL TRUST [II, III, or IV], a Delaware statutory business trust (the
"Trust"), and OLD KENT FINANCIAL CORPORATION, a Michigan corporation with
its principal office in Grand Rapids, Michigan (the "Company").
WHEREAS, the Company, the Trust, and _________________, as
representative[s] of the several underwriters named therein, have entered
into an Underwriting Agreement dated as of __________, ______ (the
"Underwriting Agreement"), relating to the purchase and sale of the Trust's
[_____%] [Floating Rate] Subordinated Capital Income Securities, Series
[II, III or IV], liquidation amount $1,000.00 per security (the "Capital
Securities" and together with the Guarantee (as defined in the Underwriting
Agreement), the "Securities");
WHEREAS, in connection with the purchase and sale of the
Securities, the Company, as sponsor of the Trust, has agreed to purchase
from the Trust, and the Trust has agreed to sell to the Company, [_____%]
[Floating Rate] Common Securities, liquidation amount $_____ per security
(the "Common Securities"), of the Trust; and
WHEREAS, the Trust has agreed to invest the proceeds of the sale
of the Securities and the Common Securities in the [_____%] [Floating Rate]
Junior Subordinated Deferrable Interest Debentures Series [II, III or IV]
(the "Debentures") of the Company issued pursuant to the Indenture dated as
of __________, 199_, by and between the Company and _____________________,
a ________ banking corporation, as Trustee (as supplemented or amended, the
"Indenture").
NOW, THEREFORE, the parties hereto agree, intending to be legally
bound, as follows:
1. PURCHASE AND SALE. In reliance upon the representations and
warranties herein set forth, the Company and the Trust agree that the
Company will sell to the Trust, and the Trust will purchase from the
Company, $__________ aggregate principal amount of the Debentures at an
aggregate purchase price of $___________.
2. DELIVERY AND PAYMENT. Delivery of and payment for the Debentures
shall be made at 9:30 a.m. New York City time on the Closing Date (as
defined in the Underwriting Agreement), or at such other date and time as
may be agreed upon by the parties hereto. Delivery of the Debentures shall
<PAGE>
be made to the Trust against payment by the Trust of the purchase price
therefor to or upon the order of the Company by wire transfer of
immediately available funds or such other manner of payment as may be
agreed upon by the parties hereto.
3. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants that the Debentures
have been duly authorized and, when executed and authenticated
against payment therefor in accordance with the provisions of the
Indenture, will constitute legal, valid, and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms.
(b) The Trust represents and warrants that, except as
required or contemplated by the Amended and Restated Declaration
of Trust of the Trust dated as of __________, ____, the
Debentures are being acquired for investment and not with a view
to distribution or resale.
4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
The parties hereto have caused this Agreement to be duly executed
by their respective officers as of the date first written above.
OLD KENT CAPITAL TRUST [II, III or IV]
By _____________________________________
Name:
Title: Regular Trustee
OLD KENT FINANCIAL CORPORATION
By _____________________________________
Name:
Title:
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<PAGE>
EXHIBIT 4(a)(i)
CERTIFICATE OF TRUST
OF
OLD KENT CAPITAL TRUST II
THIS Certificate of Trust of Old Kent Capital Trust II (the
"Trust"), dated as of July 14, 1998, 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.) (the "Act").
1. NAME. The name of the business trust formed hereby is Old
Kent Capital Trust II.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware are Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre
Street, Suite 200, Wilmington, Delaware 19805-1266.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the
Trust, has duly executed this Certificate of Trust as of the date first
written above in accordance with the Act.
BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as trustee of the Trust
By /s/ M. Lisa Wilkins
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
EXHIBIT 4(a)(ii)
CERTIFICATE OF TRUST
OF
OLD KENT CAPITAL TRUST III
THIS Certificate of Trust of Old Kent Capital Trust III (the
"Trust"), dated as of July 14, 1998, 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.) (the "Act").
1. NAME. The name of the business trust formed hereby is Old
Kent Capital Trust III.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware are Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre
Street, Suite 200, Wilmington, Delaware 19805-1266.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the
Trust, has duly executed this Certificate of Trust as of the date first
written above in accordance with the Act.
BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as trustee of the Trust
By /s/ M. Lisa Wilkins
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
EXHIBIT 4(a)(iii)
CERTIFICATE OF TRUST
OF
OLD KENT CAPITAL TRUST IV
THIS Certificate of Trust of Old Kent Capital Trust IV (the
"Trust"), dated as of July 14, 1998, 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.) (the "Act").
1. NAME. The name of the business trust formed hereby is Old
Kent Capital Trust IV.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware are Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre
Street, Suite 200, Wilmington, Delaware 19805-1266.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the
Trust, has duly executed this Certificate of Trust as of the date first
written above in accordance with the Act.
BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as trustee of the Trust
By /s/ M. Lisa Wilkins
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
EXHIBIT 4(b)(i)
DECLARATION OF TRUST
OF
OLD KENT CAPITAL TRUST II
THIS DECLARATION OF TRUST is made as of July 14, 1998 (this
"Declaration"), by and between Old Kent Financial Corporation, as sponsor
(the "Sponsor"), and Bankers Trust (Delaware), a Delaware banking corporation,
as trustee (the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created by this Declaration shall be known as "Old Kent
Capital Trust II" (the "Trust"), in which name the Trustee or the Sponsor,
to the extent provided in this Declaration, may conduct the business of the
Trust, make and execute contracts, and sue and be sued.
2. By this Declaration, the Sponsor assigns, transfers, conveys and
sets over to the Trust the sum of $10. This amount shall constitute the
initial trust estate. The parties intend that the Trust created by this
Declaration constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. <Section> 3801, et seq. (the "Business Trust
Act"), and that this Declaration constitutes the governing instrument of
the Trust. By this Declaration, the Trustee is authorized and directed, to
execute and file a certificate of trust with the Delaware Secretary of
State in such form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each party to
provide for the contemplated operation of the Trust created by this
Declaration and the issuance of the Capital Securities and Common
Securities (collectively, the "Securities") referred to in the Declaration.
Prior to the execution and delivery of the amended and restated Trust
Agreement or Declaration, the Trustee shall not have any duty or obligation
under this Declaration or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to the execution and delivery of the amended and restated Trust Agreement
or Declaration any licenses, consents or approvals required by applicable
law or otherwise. The Trustee may, however, take all proper actions that
are necessary to effect the transactions contemplated in this Declaration.
4. By this Declaration, the Sponsor and the Trustee authorize and
direct the Sponsor (i) to file with the Securities and Exchange Commission
(the "Commission") and, as applicable, to execute on behalf of the Trust,
(a) one or more Registration Statements on Form S-3 or other appropriate
forms (including pre-effective or post-effective amendments to the
Registration Statements) relating to the registration under the Securities
Act of 1933, as amended (the "1933 Act"), of the Capital Securities of the
<PAGE>
Trust (the "1993 Act Registration Statements"), (b) any preliminary
prospectus or supplement to that prospectus relating to the Capital
Securities required to be filed pursuant to Rule 424 under the 1933 Act,
and (c) one or more Registration Statements on Form 8-A or other
appropriate forms (including all pre-effective and post-effective
amendments to the Registration Statements) relating to the registration of
the Capital Securities of the Trust under the Securities Exchange Act of
1934, as amended (the "1934 Act Registration Statements"); (ii) to file and
execute on behalf of the Trust, applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and
other papers and documents that shall be necessary or desirable to register
or establish the exemption from registration of the Capital Securities of
the Trust under the securities or "Blue Sky" laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iii) to execute and file an application, and all other applications,
statements, certificates, agreements and other instruments that are
necessary or desirable, to the New York Stock Exchange or any other
national stock exchange or The Nasdaq Stock Market for listing or quotation
of the Capital Securities of the Trust; (iv) to execute and deliver letters
or documents to, or instruments for filing with, a depository relating to
the Capital Securities of the Trust; and (v) to execute, deliver and
perform on behalf of the Trust one or more underwriting agreements, dealer
manager agreements, escrow agreements and other related agreements
providing for or relating to the sale of the Capital Securities of the
Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be
executed on behalf of the Trust by the Trustee, the Trustee, in its
capacity as trustee of the Trust, is authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the
documents listed above, it being understood that the Trustee, in its
capacity as trustee of the Trust, is not required to join in any such
filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws.
In connection with all of the foregoing, by this Declaration, the
Trustee, solely in its capacity as trustee of the Trust, and the Sponsor
each constitutes and appoints Albert T. Potas and Mary Tuuk, or either of
them, as its true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for the Sponsor or in the Sponsor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and post-effective amendments) to each 1933
Act Registration Statement and each 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every
-2-
<PAGE>
act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Sponsor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his or her respective substitute or substitutes, shall do or cause
to be done by virtue hereof.
5. The number of trustees of the Trust initially shall be one and
after that the number of trustees of the Trust will be fixed from time to
time by written instrument signed by the Sponsor which may increase or
decrease the number of trustees of the Trust; PROVIDED, HOWEVER, that to
the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of
business in the State of Delaware. Subject to these requirements, the
Sponsor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Sponsor.
6. The recitals contained in this Declaration shall be taken as
statements of the Sponsor, and the Trustee does not assume any
responsibility for their correctness. The Trustee makes no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustee makes no representations as to the validity or
sufficiency of this Declaration.
7. (a) The Trustee shall not be liable, responsible or accountable
for damages or otherwise to the Trust, the Sponsor, the other trustees or
any holder of the Securities for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by the Trustee in good
faith on behalf of the Trust and in a manner the Trustee reasonably
believed to be within the scope of authority conferred on the Trustee by
this Declaration or by law, except that the Trustee shall be liable for any
such loss, damage or claim incurred by reason of the Trustee's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) The Trustee 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 Trustee 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 the Securities might properly be
paid.
8. The Sponsor agrees, to the fullest extent permitted by applicable
law:
-3-
<PAGE>
(a) to indemnify and hold harmless the Trustee, or any of its
officers, directors, shareholders, employees, representatives or agents,
from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by the Trustee in good faith on behalf of the Trust in a manner
reasonably believed to be within the scope of authority conferred on the
Trustee by this Declaration, except that the Trustee shall not be entitled
to be indemnified in respect of any loss, damage or claim incurred by
reason of its gross negligence or willful misconduct with respect to such
acts or omissions; and
(b) to advance expenses (including the reasonable fees and
expenses of counsel) incurred by the Trustee in defending any claim,
demand, action, suit or proceeding from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding.
9. The provisions in Section 8 shall survive the termination of this
Declaration or the earlier resignation or removal of the Trustee.
10. The Trust may terminate without issuing any Securities at the
election of the Sponsor.
11. This Declaration may be executed in one or more counterparts.
12. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to
conflict of laws principles.
The parties to this Declaration have caused this Declaration to
be executed as of the day and year first written above.
OLD KENT FINANCIAL CORPORATION,
as Sponsor
By: /s/ Albert T. Potas
Name: Albert T. Potas
Title: Senior Vice President and
Controller
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By: /s/ M. Lisa Wilkins
Name: M. Lisa Wilkins
Title: Assistant Secretary
-4-
<PAGE>
EXHIBIT 4(b)(ii)
DECLARATION OF TRUST
OF
OLD KENT CAPITAL TRUST III
THIS DECLARATION OF TRUST is made as of July 14, 1998 (this
"Declaration"), by and between Old Kent Financial Corporation, as sponsor
(the "Sponsor"), and Bankers Trust (Delaware), a Delaware banking corporation,
as trustee (the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created by this Declaration shall be known as "Old Kent
Capital Trust III" (the "Trust"), in which name the Trustee or the Sponsor,
to the extent provided in this Declaration, may conduct the business of the
Trust, make and execute contracts, and sue and be sued.
2. By this Declaration, the Sponsor assigns, transfers, conveys and
sets over to the Trust the sum of $10. This amount shall constitute the
initial trust estate. The parties intend that the Trust created by this
Declaration constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. <Section> 3801, et seq. (the "Business Trust
Act"), and that this Declaration constitutes the governing instrument of
the Trust. By this Declaration, the Trustee is authorized and directed, to
execute and file a certificate of trust with the Delaware Secretary of
State in such form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each party to
provide for the contemplated operation of the Trust created by this
Declaration and the issuance of the Capital Securities and Common
Securities (collectively, the "Securities") referred to in the Declaration.
Prior to the execution and delivery of the amended and restated Trust
Agreement or Declaration, the Trustee shall not have any duty or obligation
under this Declaration or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to the execution and delivery of the amended and restated Trust Agreement
or Declaration any licenses, consents or approvals required by applicable
law or otherwise. The Trustee may, however, take all proper actions that
are necessary to effect the transactions contemplated in this Declaration.
4. By this Declaration, the Sponsor and the Trustee authorize and
direct the Sponsor (i) to file with the Securities and Exchange Commission
(the "Commission") and, as applicable, to execute on behalf of the Trust,
(a) one or more Registration Statements on Form S-3 or other appropriate
forms (including pre-effective or post-effective amendments to the
Registration Statements) relating to the registration under the Securities
Act of 1933, as amended (the "1933 Act"), of the Capital Securities of the
<PAGE>
Trust (the "1993 Act Registration Statements"), (b) any preliminary
prospectus or supplement to that prospectus relating to the Capital
Securities required to be filed pursuant to Rule 424 under the 1933 Act,
and (c) one or more Registration Statements on Form 8-A or other
appropriate forms (including all pre-effective and post-effective
amendments to the Registration Statements) relating to the registration of
the Capital Securities of the Trust under the Securities Exchange Act of
1934, as amended (the "1934 Act Registration Statements"); (ii) to file and
execute on behalf of the Trust, applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and
other papers and documents that shall be necessary or desirable to register
or establish the exemption from registration of the Capital Securities of
the Trust under the securities or "Blue Sky" laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iii) to execute and file an application, and all other applications,
statements, certificates, agreements and other instruments that are
necessary or desirable, to the New York Stock Exchange or any other
national stock exchange or The Nasdaq Stock Market for listing or quotation
of the Capital Securities of the Trust; (iv) to execute and deliver letters
or documents to, or instruments for filing with, a depository relating to
the Capital Securities of the Trust; and (v) to execute, deliver and
perform on behalf of the Trust one or more underwriting agreements, dealer
manager agreements, escrow agreements and other related agreements
providing for or relating to the sale of the Capital Securities of the
Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be
executed on behalf of the Trust by the Trustee, the Trustee, in its
capacity as trustee of the Trust, is authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the
documents listed above, it being understood that the Trustee, in its
capacity as trustee of the Trust, is not required to join in any such
filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws.
In connection with all of the foregoing, by this Declaration, the
Trustee, solely in its capacity as trustee of the Trust, and the Sponsor
each constitutes and appoints Albert T. Potas and Mary Tuuk, or either of
them, as its true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for the Sponsor or in the Sponsor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and post-effective amendments) to each 1933
Act Registration Statement and each 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every
-2-
<PAGE>
act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Sponsor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his or her respective substitute or substitutes, shall do or cause
to be done by virtue hereof.
5. The number of trustees of the Trust initially shall be one and
after that the number of trustees of the Trust will be fixed from time to
time by written instrument signed by the Sponsor which may increase or
decrease the number of trustees of the Trust; PROVIDED, HOWEVER, that to
the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of
business in the State of Delaware. Subject to these requirements, the
Sponsor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Sponsor.
6. The recitals contained in this Declaration shall be taken as
statements of the Sponsor, and the Trustee does not assume any
responsibility for their correctness. The Trustee makes no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustee makes no representations as to the validity or
sufficiency of this Declaration.
7. (a) The Trustee shall not be liable, responsible or accountable
for damages or otherwise to the Trust, the Sponsor, the other trustees or
any holder of the Securities for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by the Trustee in good
faith on behalf of the Trust and in a manner the Trustee reasonably
believed to be within the scope of authority conferred on the Trustee by
this Declaration or by law, except that the Trustee shall be liable for any
such loss, damage or claim incurred by reason of the Trustee's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) The Trustee 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 Trustee 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 the Securities might properly be
paid.
8. The Sponsor agrees, to the fullest extent permitted by applicable
law:
-3-
<PAGE>
(a) to indemnify and hold harmless the Trustee, or any of its
officers, directors, shareholders, employees, representatives or agents,
from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by the Trustee in good faith on behalf of the Trust in a manner
reasonably believed to be within the scope of authority conferred on the
Trustee by this Declaration, except that the Trustee shall not be entitled
to be indemnified in respect of any loss, damage or claim incurred by
reason of its gross negligence or willful misconduct with respect to such
acts or omissions; and
(b) to advance expenses (including the reasonable fees and
expenses of counsel) incurred by the Trustee in defending any claim,
demand, action, suit or proceeding from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding.
9. The provisions in Section 8 shall survive the termination of this
Declaration or the earlier resignation or removal of the Trustee.
10. The Trust may terminate without issuing any Securities at the
election of the Sponsor.
11. This Declaration may be executed in one or more counterparts.
12. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to
conflict of laws principles.
The parties to this Declaration have caused this Declaration to
be executed as of the day and year first written above.
OLD KENT FINANCIAL CORPORATION,
as Sponsor
By: /s/ Albert T. Potas
Name: Albert T. Potas
Title: Senior Vice President and
Controller
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By: /s/ M. Lisa Wilkins
Name: M. Lisa Wilkins
Title: Assistant Secretary
-4-
<PAGE>
EXHIBIT 4(b)(iii)
DECLARATION OF TRUST
OF
OLD KENT CAPITAL TRUST IV
THIS DECLARATION OF TRUST is made as of July 14, 1998 (this
"Declaration"), by and between Old Kent Financial Corporation, as sponsor
(the "Sponsor"), and Bankers Trust (Delaware), a Delaware banking corporation,
as trustee (the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created by this Declaration shall be known as "Old Kent
Capital Trust IV" (the "Trust"), in which name the Trustee or the Sponsor,
to the extent provided in this Declaration, may conduct the business of the
Trust, make and execute contracts, and sue and be sued.
2. By this Declaration, the Sponsor assigns, transfers, conveys and
sets over to the Trust the sum of $10. This amount shall constitute the
initial trust estate. The parties intend that the Trust created by this
Declaration constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 DEL. C. <Section> 3801, ET SEQ. (the "Business Trust
Act"), and that this Declaration constitutes the governing instrument of
the Trust. By this Declaration, the Trustee is authorized and directed, to
execute and file a certificate of trust with the Delaware Secretary of
State in such form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each party to
provide for the contemplated operation of the Trust created by this
Declaration and the issuance of the Capital Securities and Common
Securities (collectively, the "Securities") referred to in the Declaration.
Prior to the execution and delivery of the amended and restated Trust
Agreement or Declaration, the Trustee shall not have any duty or obligation
under this Declaration or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to the execution and delivery of the amended and restated Trust Agreement
or Declaration any licenses, consents or approvals required by applicable
law or otherwise. The Trustee may, however, take all proper actions that
are necessary to effect the transactions contemplated in this Declaration.
4. By this Declaration, the Sponsor and the Trustee authorize and
direct the Sponsor (i) to file with the Securities and Exchange Commission
(the "Commission") and, as applicable, to execute on behalf of the Trust,
(a) one or more Registration Statements on Form S-3 or other appropriate
forms (including pre-effective or post-effective amendments to the
Registration Statements) relating to the registration under the Securities
Act of 1933, as amended (the "1933 Act"), of the Capital Securities of the
<PAGE>
Trust (the "1993 Act Registration Statements"), (b) any preliminary
prospectus or supplement to that prospectus relating to the Capital
Securities required to be filed pursuant to Rule 424 under the 1933 Act,
and (c) one or more Registration Statements on Form 8-A or other
appropriate forms (including all pre-effective and post-effective
amendments to the Registration Statements) relating to the registration of
the Capital Securities of the Trust under the Securities Exchange Act of
1934, as amended (the "1934 Act Registration Statements"); (ii) to file and
execute on behalf of the Trust, applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and
other papers and documents that shall be necessary or desirable to register
or establish the exemption from registration of the Capital Securities of
the Trust under the securities or "Blue Sky" laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iii) to execute and file an application, and all other applications,
statements, certificates, agreements and other instruments that are
necessary or desirable, to the New York Stock Exchange or any other
national stock exchange or The Nasdaq Stock Market for listing or quotation
of the Capital Securities of the Trust; (iv) to execute and deliver letters
or documents to, or instruments for filing with, a depository relating to
the Capital Securities of the Trust; and (v) to execute, deliver and
perform on behalf of the Trust one or more underwriting agreements, dealer
manager agreements, escrow agreements and other related agreements
providing for or relating to the sale of the Capital Securities of the
Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be
executed on behalf of the Trust by the Trustee, the Trustee, in its
capacity as trustee of the Trust, is authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the
documents listed above, it being understood that the Trustee, in its
capacity as trustee of the Trust, is not required to join in any such
filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws.
In connection with all of the foregoing, by this Declaration, the
Trustee, solely in its capacity as trustee of the Trust, and the Sponsor
each constitutes and appoints Albert T. Potas and Mary Tuuk, or either of
them, as its true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for the Sponsor or in the Sponsor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and post-effective amendments) to each 1933
Act Registration Statement and each 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every
-2-
<PAGE>
act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Sponsor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his or her respective substitute or substitutes, shall do or cause
to be done by virtue hereof.
5. The number of trustees of the Trust initially shall be one and
after that the number of trustees of the Trust will be fixed from time to
time by written instrument signed by the Sponsor which may increase or
decrease the number of trustees of the Trust; PROVIDED, HOWEVER, that to
the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of
business in the State of Delaware. Subject to these requirements, the
Sponsor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Sponsor.
6. The recitals contained in this Declaration shall be taken as
statements of the Sponsor, and the Trustee does not assume any
responsibility for their correctness. The Trustee makes no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustee makes no representations as to the validity or
sufficiency of this Declaration.
7. (a) The Trustee shall not be liable, responsible or accountable
for damages or otherwise to the Trust, the Sponsor, the other trustees or
any holder of the Securities for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by the Trustee in good
faith on behalf of the Trust and in a manner the Trustee reasonably
believed to be within the scope of authority conferred on the Trustee by
this Declaration or by law, except that the Trustee shall be liable for any
such loss, damage or claim incurred by reason of the Trustee's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) The Trustee 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 Trustee 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 the Securities might properly be
paid.
8. The Sponsor agrees, to the fullest extent permitted by applicable
law:
-3-
<PAGE>
(a) to indemnify and hold harmless the Trustee, or any of its
officers, directors, shareholders, employees, representatives or agents,
from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by the Trustee in good faith on behalf of the Trust in a manner
reasonably believed to be within the scope of authority conferred on the
Trustee by this Declaration, except that the Trustee shall not be entitled
to be indemnified in respect of any loss, damage or claim incurred by
reason of its gross negligence or willful misconduct with respect to such
acts or omissions; and
(b) to advance expenses (including the reasonable fees and
expenses of counsel) incurred by the Trustee in defending any claim,
demand, action, suit or proceeding from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding.
9. The provisions in Section 8 shall survive the termination of this
Declaration or the earlier resignation or removal of the Trustee.
10. The Trust may terminate without issuing any Securities at the
election of the Sponsor.
11. This Declaration may be executed in one or more counterparts.
12. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to
conflict of laws principles.
The parties to this Declaration have caused this Declaration to
be executed as of the day and year first written above.
OLD KENT FINANCIAL CORPORATION,
as Sponsor
By: /s/ Albert T. Potas
Name: Albert T. Potas
Title: Senior Vice President and
Controller
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By: /s/ M. Lisa Wilkins
Name: M. Lisa Wilkins
Title: Assistant Secretary
-4-
<PAGE>
EXHIBIT 4(b)(iv)
AMENDED AND RESTATED DECLARATION OF TRUST
OLD KENT CAPITAL TRUST [II, III or IV]
Dated as of ________
<PAGE>
CROSS REFERENCE TABLE
Section of Trust
Indenture Act of SECTION OF
1939, AS AMENDED AGREEMENT
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(c); 6.3(d)
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4; 3.6(j)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .3.9(b); 3.10(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.8
316(a) . . . . . . . . . . . . . . . . . . 2.6(a); 2.6(b); 2.6(c); 7.5; 7.6
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6(e)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.16; 7.5; 7.6
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(h)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(c)
<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. . . . . . . . . . . . . . . . . .2
Closing Date. . . . . . . . . . . . . . . . . . . . . .2
Code. . . . . . . . . . . . . . . . . . . . . . . . . .2
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. . . . . . . . . . . . . . . . . . . .3
Depositary. . . . . . . . . . . . . . . . . . . . . . .3
Distribution. . . . . . . . . . . . . . . . . . . . . .3
DTC . . . . . . . . . . . . . . . . . . . . . . . . . .3
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. . . . . . . . . . . . . . .4
Investment Company. . . . . . . . . . . . . . . . . . .4
Investment Company Act. . . . . . . . . . . . . . . . .4
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Investment Company Event. . . . . . . . . . . . . . . .4
Legal Action. . . . . . . . . . . . . . . . . . . . . .5
List of Holders . . . . . . . . . . . . . . . . . . . .5
Majority in Liquidation Amount. . . . . . . . . . . . .5
Officers' Certificate . . . . . . . . . . . . . . . . .5
Paying Agent. . . . . . . . . . . . . . . . . . . . . .5
Payment Amount. . . . . . . . . . . . . . . . . . . . .5
Person. . . . . . . . . . . . . . . . . . . . . . . . .5
Property Account. . . . . . . . . . . . . . . . . . . .6
Property Trustee. . . . . . . . . . . . . . . . . . . .6
Pro Rata. . . . . . . . . . . . . . . . . . . . . . . .6
Quorum. . . . . . . . . . . . . . . . . . . . . . . . .6
Redemption Price. . . . . . . . . . . . . . . . . . . .6
Regular Trustee . . . . . . . . . . . . . . . . . . . .6
Regulatory Capital Event. . . . . . . . . . . . . . . .6
Related Party . . . . . . . . . . . . . . . . . . . . .6
Responsible Officer . . . . . . . . . . . . . . . . . .6
Rule 3a-5 . . . . . . . . . . . . . . . . . . . . . . .6
Securities. . . . . . . . . . . . . . . . . . . . . . .6
Securities Act. . . . . . . . . . . . . . . . . . . . .7
Special Event . . . . . . . . . . . . . . . . . . . . .7
Sponsor . . . . . . . . . . . . . . . . . . . . . . . .7
Successor Delaware Trustee. . . . . . . . . . . . . . .7
Successor Entity. . . . . . . . . . . . . . . . . . . .7
Successor Property Trustee. . . . . . . . . . . . . . .7
Successor Security. . . . . . . . . . . . . . . . . . .7
Super Majority. . . . . . . . . . . . . . . . . . . . .7
Tax Event . . . . . . . . . . . . . . . . . . . . . . .7
10% in Liquidation Amount . . . . . . . . . . . . . . .7
Treasury Regulations. . . . . . . . . . . . . . . . . .7
Trust Enforcement Event . . . . . . . . . . . . . . . .8
Trust Indenture Act . . . . . . . . . . . . . . . . . .8
Trustee" or "Trustees . . . . . . . . . . . . . . . . .8
Trustees' Authorization Certificate . . . . . . . . . .8
ARTICLE 2 - TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application. . . . . . . .8
Section 2.2 Lists of Holders of Securities. . . . . . . . .8
Section 2.3 Reports by the Property Trustee . . . . . . . .9
Section 2.4 Periodic Reports to the Property Trustee. . . .9
Section 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . .9
Section 2.6 Trust Enforcement Events; Waiver. . . . . . . .9
Section 2.7 Trust Enforcement Event; Notice . . . . . . . 11
ARTICLE 3 - ORGANIZATION
Section 3.1 Name and Organization . . . . . . . . . . . . 12
Section 3.2 Office. . . . . . . . . . . . . . . . . . . . 12
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Section 3.3 Purpose . . . . . . . . . . . . . . . . . . . 12
Section 3.4 Authority . . . . . . . . . . . . . . . . . . 12
Section 3.5 Title to Property of the Trust. . . . . . . . 13
Section 3.6 Powers and Duties of the Regular Trustees . . 13
Section 3.7 Prohibition of Actions by the Trust and the
Trustees . . . . . . . . . . . . . . . . . . 16
Section 3.8 Powers and Duties of the Property Trustee . . 17
Section 3.9 Certain Duties and Responsibilities of the
Property Trustee. . . . . . . . . . . . . . . 19
Section 3.10 Certain Rights of Property Trustee . . . . . 21
Section 3.11 Delaware Trustee . . . . . . . . . . . . . . 24
Section 3.12 Execution of Documents . . . . . . . . . . . 24
Section 3.13 Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . 23
Section 3.14 Duration of Trust. . . . . . . . . . . . . . 24
Section 3.15 Mergers. . . . . . . . . . . . . . . . . . . 24
Section 3.16 Property Trustee May File Proofs of Claim. . 26
ARTICLE 4 - SPONSOR
Section 4.1 Responsibilities of the Sponsor . . . . . . . 27
Section 4.2 Compensation, Indemnification and Expenses of
the Trustee . . . . . . . . . . . . . . . . . 27
ARTICLE 5 - TRUST COMMON SECURITIES HOLDER
Section 5.1 Debenture Issuer's Purchase of Common
Securities. . . . . . . . . . . . . . . . . . 28
Section 5.2 Covenants of the Common Securities Holder . . 28
ARTICLE 6 - TRUSTEES
Section 6.1 Number of Trustees. . . . . . . . . . . . . . 28
Section 6.2 Delaware Trustee. . . . . . . . . . . . . . . 29
Section 6.3 Property Trustee; Eligibility . . . . . . . . 29
Section 6.4 Qualifications of Regular Trustees and
Delaware Trustee Generally . . . . . . . . . 30
Section 6.5 Initial Regular Trustees. . . . . . . . . . . 30
Section 6.6 Appointment, Removal and Resignation of
Trustees. . . . . . . . . . . . . . . . . . . 30
Section 6.7 Vacancies among Trustees. . . . . . . . . . . 32
Section 6.8 Effect of Vacancies . . . . . . . . . . . . . 32
Section 6.9 Delegation of Power . . . . . . . . . . . . . 32
Section 6.10 Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . 32
ARTICLE 7 - THE SECURITIES
Section 7.1 General Provisions Regarding Securities . . . 33
Section 7.2 Distributions . . . . . . . . . . . . . . . . 35
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Section 7.3 Redemption of Securities. . . . . . . . . . . 35
Section 7.4 Redemption Procedures . . . . . . . . . . . . 36
Section 7.5 Voting Rights of Capital Securities . . . . . 38
Section 7.6 Voting Rights of Common Securities. . . . . . 40
Section 7.7 Paying Agent. . . . . . . . . . . . . . . . . 41
Section 7.8 Transfer of Securities. . . . . . . . . . . . 41
Section 7.9 Mutilated, Destroyed, Lost or Stolen
Certificates. . . . . . . . . . . . . . . . . 42
Section 7.10 Deemed Security Holders . . . . . . . . . . . 42
Section 7.11 Global Securities . . . . . . . . . . . . . . 42
ARTICLE 8 - DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust. . . . . 45
Section 8.2 Liquidation Distribution Upon Termination and
Dissolution of the Trust . . . . . . . . . . .46
ARTICLE 9 - LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability . . . . . . . . . . . . . . . . . . 46
Section 9.2 Exculpation . . . . . . . . . . . . . . . . . 47
Section 9.3 Fiduciary Duty. . . . . . . . . . . . . . . . 47
Section 9.4 Indemnification . . . . . . . . . . . . . . . 48
Section 9.5 Outside Businesses. . . . . . . . . . . . . . 50
ARTICLE 10 - ACCOUNTING
Section 10.1 Fiscal Year. . . . . . . . . . . . . . . . . 51
Section 10.2 Certain Accounting Matters . . . . . . . . . 51
Section 10.3 Banking. . . . . . . . . . . . . . . . . . . 51
Section 10.4 Withholding. . . . . . . . . . . . . . . . . 51
ARTICLE 11 - AMENDMENTS AND MEETINGS
Section 11.1 Amendments . . . . . . . . . . . . . . . . . 52
Section 11.2 Meetings of the Holders of Securities; Action
by Written Consent . . . . . . . . . . . . . 54
ARTICLE 12 - REPRESENTATIONS OF PROPERTY
TRUSTEE AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property
Trustee . . . . . . . . . . . . . . . . . . .56
Section 12.2 Representations and Warranties of the Delaware
Trustee . . . . . . . . . . . . . . . . . . .56
ARTICLE 13 - MISCELLANEOUS
Section 13.1 Notices. . . . . . . . . . . . . . . . . . . 57
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Section 13.2 Governing Law. . . . . . . . . . . . . . . . 58
Section 13.3 Intention of the Parties . . . . . . . . . . 58
Section 13.4 Headings . . . . . . . . . . . . . . . . . . 58
Section 13.5 Successors and Assigns . . . . . . . . . . . 58
Section 13.6 Partial Enforceability . . . . . . . . . . . 58
Section 13.7 Counterparts . . . . . . . . . . . . . . . . 58
Section 13.8 Undertaking for Costs. . . . . . . . . . . . 59
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<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated as of __________ among Old Kent Financial Corporation, a Michigan
corporation, as Sponsor, and________________, 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 [II, III, or IV] (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 ___________ (the
"Original Declaration") and a Certificate of Trust (the "Certificate of
Trust") filed with the Secretary of State of the State of Delaware on
___________; 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 issued by the Debenture Issuer and to engage in only those
activities necessary or incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the
Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(i) capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
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(ii) a term defined anywhere in this Declaration has the same
meaning throughout;
(iii) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to
time;
(iv) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless otherwise
specified;
(v) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(vi) a reference to the singular includes the plural and vice
versa and a reference to any masculine form of a term shall include the
feminine form of a term, as applicable.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means the Chairman of the Board,
a Vice Chairman of the Board, the Chief Executive Officer, the President, a
Vice President, the principal financial officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of such
Person.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York and Grand Rapids,
Michigan are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Property Trustee
is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Beneficial Owner" means, with respect to any
beneficial interest in a Global Security, ownership and transfers of which
shall be maintained and made through book entries by a Depositary, a Person
who is the beneficial owner of such beneficial interest, as reflected on
the books of the Depositary, or on the books of a Person maintaining an
account with such Depositary as a direct or indirect participant, in each
case in accordance with the rules of such Depositary.
"Capital Security Certificate" means a certificate representing a
Capital Security.
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"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 Trustee at which
at any particular time its corporate trust and agency services shall be
administered, which office at the date of this Declaration is located at
Four Albany Street, 4th Floor, New York, New York 10006, Attention:
Corporate Market Services.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of (A) the Trust or (B)
the Trust's Affiliates; and (ii) any Holder of Securities.
"Debenture Issuer" means Old Kent Financial Corporation in its
capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (i) any Regular
Trustee; (ii) any Affiliate of any Regular Trustee; (iii) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Regular Trustee or any Affiliate thereof; or (iv) any
officer, employee or agent of the Trust or its Affiliates.
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"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.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fiscal Year" has the meaning set forth in Section 10.1.
"Global Security" has the meaning set forth in Section 7.11.
"Guarantee" means the guarantee agreement of the Sponsor in
respect of the Capital Securities and the Common Securities.
"Holder" means a Person in whose name a Certificate representing
a Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite liquidation amount of Capital
Securities have voted on any matter provided for in this Declaration, then
for the purpose of such determination only (and not for any other purpose
hereunder), if the Capital Securities remain in the form of one or more
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.
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"Indemnified Person" means a Debenture Issuer Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of ________, 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.
"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 that the Debenture Issuer shall
have received an opinion of counsel (which may be counsel to the Debenture
Issuer) 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(g).
"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.
"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;
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<PAGE>
(ii) a brief statement as to the nature and scope of the
examination and investigation upon which the statements and opinions
contained in such certificate or opinion are based;
(iii) 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
(iv) a statement as to whether, in the opinion of each such
officer and on behalf of such Person, such condition or covenant has been
complied with; PROVIDED, that the term "Officers' Certificate", when used
with reference to Regular Trustees who are natural persons shall mean a
certificate signed by two of the Regular Trustees which otherwise satisfies
the foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(a).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof or any other
entity of whatever nature.
"Property Account" has the meaning specified in Section
3.8(c)(i).
"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.
"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).
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Regulatory Capital Event" means that the Debenture Issuer shall
have received an opinion of counsel (which may be counsel to the Debenture
Issuer) 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 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 the President, any Principal Vice-President,
any Assistant Vice-President, any Managing Director, the Treasurer, any
Assistant Treasurer, 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.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event or
an Investment Company Event.
"Sponsor" means Old Kent Financial Corporation, a Michigan
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section
6.6(b).
"Successor Entity" has the meaning specified in Section
3.15(b)(i).
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"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 that the Debenture Issuer shall have received
an opinion of counsel (which may be counsel to the Debenture Issuer) 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 MINIMIS amount
of other taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the
context may require, Holders of outstanding Capital Securities or Holders
of outstanding Common Securities, voting separately as a class, who are the
record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the
relevant class.
"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.
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"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.
(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
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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; provided further that if and so long as the Property Trustee is
the Securities Registrar for the Securities, no Lists of Holders need be
furnished. 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),
312(b) and 312(c) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing in the year
of the first anniversary of the issuance of the Capital Securities), the
Property Trustee shall provide to the Holders of the Capital Securities
such reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act and an Officer's Certificate as to
its compliance with all conditions and covenants applicable to the Sponsor
and the Regular Trustees under this Declaration on an annual basis on or
before 120 days after the end of each fiscal year of the Sponsor.
Section 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) shall be given in the form of an
Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
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(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
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
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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, that each Holder of Common Securities will be deemed to
have waived any Trust Enforcement Event and all Trust Enforcement Events
with respect to the Common Securities and the consequences thereof until
all Trust Enforcement Events with respect to the Capital Securities have
been cured, waived or otherwise eliminated, and until such Trust
Enforcement Events with respect to the Capital Securities have been so
cured, waived or otherwise eliminated, the Property Trustee will be deemed
to be acting solely on behalf of the Holders of the Capital Securities and
only the Holders of the Capital Securities will have the right to direct
the Property Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.6(b) shall be in lieu of Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and
any Trust Enforcement Event with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
Trust Enforcement Event with respect to the Common Securities or impair any
right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Capital Securities
constitutes a waiver of the corresponding Trust Enforcement Event with
respect to the Capital Securities under this Declaration. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B)
of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of a Trust Enforcement Event, transmit by mail, first class
postage prepaid, to the Holders of the Securities, notices of all defaults
with respect to the Securities actually known to a Responsible Officer of
the Property Trustee, unless such defaults have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section
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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(a) and 501(b) of the Indenture;
or
(ii) any default as to which a Responsible Officer of the
Property Trustee charged with the administration of this
Declaration shall have actual knowledge or has received
written notice of such default in accordance with Section
13.1 hereof.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization.
The Trust hereby continued is named "Old Kent Capital Trust [II,
III or IV]" 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: Corporate Secretary, One Vandenberg
Center, 111 Lyon Street, N.W.,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
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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.
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(b), provided, that the
registration statements referred to in Section 3.6(b)(i), 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,
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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.
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:
(a) 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 one series of 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;
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) 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;
(ii) 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 Stock
Market for listing of any Capital Securities, the
Guarantee and the Debentures;
(iii) 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;
(iv) 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; and
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(v) execute and enter into an underwriting agreement and
other related agreements providing for the sale of the
Capital Securities.
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) 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;
(k) to incur expenses that are necessary or incidental to carry
out any of the
purposes of the Trust;
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(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) 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;
(n) 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;
(o) 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.
(p) 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
(q) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3 and subject to the limitations and
restrictions of applicable law, and the Regular Trustees shall have no
power to, and shall not, take any action that is inconsistent with the
purposes and functions of the Trust set forth in Section 3.3 or that is
inconsistent with or in contravention of any applicable law.
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Subject to this Section 3.6, the Regular Trustees shall have none
of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
Section 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular,
the Trust shall not and the Trustees (including the Property Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than the Debentures (and any
interest or proceeds received thereon) and the Guarantee
(and the proceeds received thereon or with respect thereto);
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets;
(vi) possess any power or otherwise act in such a way as to vary
the terms of the Securities in any way whatsoever (except to
the extent expressly authorized in this Declaration or by
the terms of the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other
than the Securities; or
(viii) other than as provided in this Declaration or by the terms
of the Securities, (A) direct the time, method and place of
conducting any proceeding for any remedy available to the
Debenture Trustee or exercising any trust or power conferred
upon the Property Trustee with respect to the Debentures,
(B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall
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be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the
Debentures where such consent shall be required unless, in
each case, the Trust shall have received (1) the prior
approval of the Majority in Liquidation Amount of the
Capital Securities; PROVIDED, HOWEVER, that where a consent
or action under the Indenture would require the consent or
act of the holders of more than a majority of the aggregate
liquidation amount of Debentures affected thereby, only the
Holders of the percentage of the aggregate stated
liquidation amount of the Capital Securities which is at
least equal to the percentage required under the Indenture
may direct the Property Trustee to give such consent to take
such action and (2) an opinion of counsel to the effect that
such modification will not cause more than an insubstantial
risk that (a) the Trust will be deemed an Investment Company
required to be registered under the Investment Company Act
or (b) the Trust will not be classified as other than a
grantor trust for U.S. federal income tax purposes; or
(ix) take any action inconsistent with the status of the Trust as
a grantor trust for U.S. federal income tax purposes; or
(x) revoke any action previously authorized or approved by a
vote of the Holders of the Capital Securities except
pursuant to a subsequent vote of the Holders of the Capital
Securities.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and interest
of the Property Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Property Trustee in accordance
with Section 6.6. Such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the Debentures have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(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
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receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such funds
into the Property Account and make payments to the Holders
of the Capital Securities and Holders of the Common
Securities from the Property Account in accordance with
Section 7.2. Funds in the Property Account shall be held
uninvested until disbursed in accordance with this
Declaration. The Property Account shall be an account that
is maintained with a banking institution the rating on whose
long-term unsecured indebtedness is at least equal to the
rating assigned to the Capital Securities by a "nationally
recognized statistical rating organization", as that term is
defined for purposes of Rule 436(g)(2) under the Securities
Act;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as so directed and as
shall be necessary or appropriate to effect the distribution
of the Debentures to Holders of Securities upon the
occurrence of a Special Event.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Declaration or the
Trust Indenture Act; provided, however, that if a Trust Enforcement Event
has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal (or premium,
if any) on the Debentures on the date such interest or principal (or
premium, if any) is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of (or premium, if any) or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
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
<PAGE>
in such Direct Action; provided, however, that no Holder of the Common
Securities may exercise any such right of subrogation so long as an Trust
Enforcement Event with respect to the Capital Securities has occurred and
is continuing. Except as provided in the preceding sentences, the Holders
of Capital Securities will not be able to exercise directly any other
remedy available to the Holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities;
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6; or
(iii) the Property Trustee has resigned in accordance with Section
6.6.
(g) Subject to such limitations as are necessary to insure
compliance with Section 3.3, the Property Trustee shall have the legal
power to exercise all of the rights, powers and privileges of a holder of
Debentures under the Indenture and, if a Trust Enforcement Event actually
known to a Responsible Officer of the Property Trustee occurs and is
continuing, the Property Trustee shall, for the benefit of Holders of the
Securities, enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities
and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. Any Paying Agent may be removed by the Property Trustee at
any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee. In the event the Capital
Securities do not remain in the form of one or more Global Securities, the
Property Trustee will act as Paying Agent and may designate an additional
or substitute Paying Agent at any time.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
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.
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Section 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after all Trust Enforcement Events that may have
occurred have been cured or waived, shall undertake to perform only such
duties as are specifically set forth in this Declaration and no implied
covenants shall be read into this Declaration against the Property Trustee.
In case a Trust Enforcement Event has occurred (that has not been cured or
waived pursuant to Section 2.6) of which a Responsible Officer of the
Property Trustee has actual knowledge, the Property Trustee shall exercise
such of the rights and powers vested in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except
that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement
Events that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of
this Declaration and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the
Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates
or opinions furnished to the Property Trustee and
conforming to the requirements of this Declaration; but
in the case of any such certificates or opinions that
by any provision hereof are specifically required to be
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
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judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it without
negligence, in good faith in accordance with the direction
of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that the repayment of such funds or liability is not assured
to it under the terms of this Declaration or indemnity
satisfactory to the Property Trustee against such risk or
liability is not assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the
Debentures and the Property Account shall be to deal with
such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to
the protections and limitations on liability afforded to the
Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree
with the Sponsor in writing. Money held by the Property
Trustee need not be segregated from other funds 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
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their respective duties under this Declaration, nor shall
the Property Trustee be liable for any default or misconduct
of the Regular Trustees or the Sponsor; and
(ix) the Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Debenture Issuer.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate (or, with respect to
the establishment of the terms and form of the Securities by
the Regular Trustees, by a Trustees' Authorization
Certificate);
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting
any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or
the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(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
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action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, such
counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to seek
instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holder,
unless such Holder shall have provided to the Property
Trustee security and indemnity, satisfactory to the Property
Trustee, against the costs, expenses (including attorneys'
fees and expenses and the expenses of the Property Trustee's
agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Property Trustee; PROVIDED that, nothing
contained in this Section 3.10(a) shall be taken to relieve
the Property Trustee, upon the occurrence of an Indenture
Event of Default, of its obligation to exercise the rights
and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees or attorneys and
the Property Trustee shall not be responsible for any
misconduct or negligence on the part 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
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conclusively evidenced by the Property Trustee's or its
agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Property Trustee
(A) may request instructions from the Holders of the
Securities, the Regular Trustees or the Sponsor which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would
be entitled to direct the Property Trustee under the terms
of the Securities in respect of such remedy, right or
action, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are
received and (C) shall be protected in conclusively relying
on or acting in accordance with such instructions;
(xi) if no Trust Enforcement Event has occurred and is continuing
and the Property Trustee is required to decide between
alternative causes of action, construe ambiguous provisions
in their Declaration or is unsure of the application of any
provision of their Declaration, and the matter is not one on
which Holders of Capital Securities are entitled under the
Declaration to vote, then the Property Trustee may, but
shall be under no duty to, take such action as is directed
by the Sponsor and will have no liability except for its own
bad faith, negligence or willful misconduct;
(xii) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions
of this Declaration;
(xiii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without
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
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it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a duty.
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 6.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described
in this Declaration. Except as set forth in Section 6.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Business Trust Act.
Section 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust
or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Declaration, the Securities, the Debentures
or the Indenture.
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
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Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or
lease its properties substantially as an entirety to a trust organized as
such under the laws of any State; PROVIDED that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Capital Securities other securities
having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital
Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of such Successor
Entity that possesses the same powers and duties as the
Property Trustee as the holder of the Debentures;
(iii) if the Capital Securities or any Successor Securities are
listed, any Successor Securities will be listed upon
notification of issuance, on any national securities
exchange or with any other organization on which the Capital
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
(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:
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(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders
of the Capital Securities (including any Successor
Securities) in any material respect;
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the
Trust nor the Successor Entity will be required to
register as an Investment Company; and
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Trust
(or the Successor Entity) will continue to be
classified as a grantor trust for U.S. federal income
tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all
of the Common Securities and guarantees the obligations of
such Successor Entity under the Successor Securities at
least to the extent provided by the Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation,
merger or replacement would cause the Trust or Successor Entity to be
classified as other than a grantor trust for U.S. federal income tax
purposes and each Holder of the Securities not to be treated as owning an
undivided interest in the Debentures.
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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(a) 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
(b) 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
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,
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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 Stock 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; and
(v) to negotiate the terms of and execute and deliver an
underwriting agreement and other related agreements providing for the sale
of the Capital Securities.
Section 4.2 Compensation, Indemnification and Expenses of the
Trustee.
Pursuant to Sections 607 and 1006 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
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.
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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 or
indirectly 100% ownership of the Common Securities, (ii) to use its
commercially reasonable efforts to ensure that the Trust remains a
statutory business trust and does not voluntarily dissolve, wind up,
liquidate or terminate, 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:
(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
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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 Trustee is a Regular
Trustee who 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
(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
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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 _______________________,
the business address of all of whom is c/o Old Kent Financial Corporation,
One Vandenberg Center, 111 Lyon Street, N.W., Grand Rapids, MI 49503.
Section 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be removed without
cause at any time, except if a Trust Enforcement Event has occurred and is
continuing, and may be appointed:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities
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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
6.3(a) (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
(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.
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(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
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
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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 "Capital Securities"), and a
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 $1,000.00 per Capital Security. The Capital
Security Certificates evidencing the Capital Securities
shall be substantially in the form of Exhibit A to the
Declaration (except that the Capital Security Certificate
shall not contain any of the provisions following the
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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 or trading organization on
which the Capital Securities may be listed.
(ii) Common Securities. The Common Securities of the Trust have
a liquidation amount with respect to the assets of the Trust
of $1,000.00 per Common Security. The Common Security
Certificates evidencing the Common Securities shall be
substantially in the form of Exhibit B to the Declaration,
with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or
practice.
(b) Payment of Distributions on, and payments of the Redemption
Price upon a redemption of, the Capital Securities and the Common
Securities, as applicable, shall be made Pro Rata based on the liquidation
amount of such Capital Securities and Common Securities; PROVIDED, HOWEVER,
that if on any date on which amounts payable on Distribution or redemption
an Indenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation
or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all
of the outstanding Capital Securities for all Distribution periods
terminating on or prior thereto, or in the case of amounts payable on
redemption the full amount of the Redemption Price for all of the
outstanding Capital Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or
payments of the Redemption Price upon a redemption of, the Capital
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
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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 7.1(a)(i).
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Certificates. An authenticating
agent may authenticate Certificates whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has
the same rights as the Property Trustee to deal with the Sponsor or an
Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(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) The Securities represent undivided beneficial interests in
the assets of the Trust, and Holders of Securities shall be entitled to
receive cumulative cash Distributions at the rate and on the dates that
payments of interest are made on the Debentures. The amount of
Distributions payable for any period less than a full distribution period
shall be computed on the basis of 360-day year consisting of twelve 30-day
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months and the actual number of days elapsed in a partial month in a
period. The amount of Distributions payable for any period less than a
full distribution period shall be computed by dividing the rate per annum
by [twelve] [four] [two]. 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 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 [monthly] [quarterly] [semi-annually] 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,
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, except to the extent (and in
the event) that the Debenture Issuer exercises its right to defer the
payment of interest on the Debentures pursuant to the Indenture, will be
payable [monthly] [quarterly] [semi-annually] in arrears on [_____________]
of each year, commencing _______ ___, 199__, when, as and if available
for payment, by the Property Trustee, except as otherwise described below.
If Distributions are not paid when scheduled, the accrued Distributions
shall be paid to the Holders of record of Securities as they appear on the
books and records of the Trust on the record date as determined under
Section 7.2(c).
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates, which relevant record date shall be [______________].
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
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Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed for an amount
equal to the redemption price paid by the Debenture Issuer in respect of
such Debentures plus an amount equal to accrued and unpaid Distributions
thereon through the date of the redemption or such lesser amount as shall
be received by the Trust in respect of the Debentures so repaid or redeemed
(the "Redemption Price"). Holders will be given not less than 30 or more
than 60 days notice of such redemption.
(b) If, at any time, a Special Event shall occur and be
continuing, the Sponsor may elect to, unless the Debentures are redeemed,
within 120 days following the occurrence of such Special Event, subject to
the receipt of any necessary approval by the Federal Reserve, cause the
dissolution of the Trust upon not less than 30 nor more than 60 days'
notice and, after satisfaction of creditors, if any, cause the Debentures
to be distributed to the holders of the Common Securities and the Capital
Securities in liquidation of the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Capital Securities and the Common
Securities will no longer be deemed to be outstanding and (ii) certificates
representing Securities will be deemed to represent the Debentures having
an aggregate principal amount equal to the stated liquidation amount of,
and bearing accrued and unpaid distributions equal to accrued and unpaid
distributions on, such Securities until such certificates are presented to
the Sponsor or its agent for transfer or reissuance.
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4, a
Redemption/Distribution Notice shall be deemed to be given on the day such
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,
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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
$1,000.00 or an integral multiple of $1,000.00 in excess thereof) of the
liquidation amount of Capital Securities of a denomination larger than
$1,000.00. The Property Trustee shall promptly notify the Trust registrar
in writing of the Capital Securities selected for redemption and, in the
case of any Capital Security selected for partial redemption, the
liquidation amount thereof to be redeemed. The Trust may not redeem the
Securities in part unless all accrued and unpaid Distributions have been
paid in full on all Securities then outstanding plus accrued but unpaid
interest to the date of redemption. For all purposes of this Declaration,
unless the context otherwise requires, all provisions relating to the
redemption of Capital Securities shall relate, in the case of any Capital
Security redeemed or to be redeemed only in part, to the portion of the
aggregate liquidation amount of Capital Securities which has been or is to
be redeemed.
(c) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 7.4 (which notice will
be irrevocable), then (i) by 12:00 noon, New York City time, one day prior
to the redemption date, the Property Trustee, upon receipt of such funds,
will deposit irrevocably with the DTC (in the case of book-entry form
Capital Securities) or its nominee (or successor Clearing Agency or its
nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Capital Securities and will give the DTC irrevocable
instructions and authority to pay the Redemption Price to the Holders of
the Capital Securities, and (ii) with respect to Capital Securities and
Common Securities issued in certificated form, the Trust, to the extent
funds are available, will irrevocably deposit with the paying agent for
such Securities funds sufficient to pay the applicable Redemption Price and
will give the paying agent irrevocable instructions and authority to pay
the Redemption Price to the holders thereof upon surrender of their
certificates evidencing such Securities. If a Redemption/Distribution
Notice shall have been given and funds deposited as required, then
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
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Business Day, in each case with the same force and effect as if made on
such date fixed for redemption. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to
the Guarantee, Distributions on such Securities will continue to accrue at
the then applicable rate from the original redemption date to the actual
date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption
Price. For these purposes, the applicable Redemption Price shall not
include Distributions which are being paid to Holders who were Holders on a
relevant record date. Upon satisfaction of the foregoing conditions, then
immediately prior to the close of business on the date of such deposit or
payment, all rights of Holders of such Debentures so called for redemption
will cease, except the right of the Holders to receive the Redemption
Price, but without interest on such Redemption Price, and from and after
the date fixed for redemption, such Debentures will not accrue
distributions or bear interest.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer or exchange of any
Securities that have been called for redemption, except in the case of any
Securities being redeemed in part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws), the Debenture Issuer or
its subsidiaries may at any time and from time to time purchase outstanding
Capital Securities by tender, in the open market or by private agreement.
Section 7.5 Voting Rights of Capital Securities.
(a) Except as provided under this Article 7 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
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stated liquidation amount of the Capital Securities which is at least equal
to the percentage required under the Indenture may direct the Property
Trustee to give such consent to take such action.
(c) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of record of Capital Securities has made a
written request, such Holder of record of Capital Securities may, to the
extent permitted by applicable law, institute a legal proceeding directly
against the Debenture Issuer to enforce the Property Trustee's rights under
the Indenture without first instituting any legal proceeding against the
Property Trustee or any other person or entity. Notwithstanding the
foregoing, if a Trust Enforcement Event has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to make
any required payment when due under the Indenture, then a Holder of Capital
Securities may directly institute a proceeding against the Debenture Issuer
for enforcement of such payment under the Indenture.
(d) The Property Trustee shall notify all Holders of the Capital
Securities of any notice of any Indenture Event of Default received from
the Debenture Issuer with respect to the Debentures. Such notice shall
state that such Indenture Event of Default also constitutes a Trust
Enforcement Event. Except with respect to directing the time, method, and
place of conducting a proceeding for a remedy, the Property Trustee shall
be under no obligation to take any of the actions described in clause
7.5(b)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that as a result of such
action, the Trust will not fail to be classified as a grantor trust for
U.S. federal income tax purposes and each Holder will be treated as owning
an undivided beneficial ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the
Holder of the Debentures, is required under the Indenture with respect to
any amendment or modification of the Indenture, the Property Trustee shall
request the direction of the Holders of the Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by a Majority in Liquidation Amount of the
Securities voting together as a single class; PROVIDED, HOWEVER, that where
a consent under the Indenture would require the consent of the Holders of
more than a majority in aggregate principal amount of the Debentures, the
Property Trustee may only give such consent at the direction of the Holders
of at least the same proportion in aggregate stated liquidation amount of
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.
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(f) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust
Enforcement Event.
(g) Any required approval or direction of Holders of Capital
Securities may be given at a separate meeting of Holders of Capital
Securities convened for such purpose, at a meeting of all of the Holders of
Securities or pursuant to written consent. The Regular Trustees will cause
a notice of any meeting at which Holders of Capital Securities are entitled
to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Capital
Securities. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which
such action is to be taken; (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or
of such matter upon which written consent is sought; and (iii) instructions
for the delivery of proxies or consents.
(h) No vote or consent of the Holders of Capital Securities will
be required for the Trust to redeem and cancel Capital Securities or
distribute Debentures in accordance with the Declaration.
(i) Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Securities that are owned at such time by the Debenture Issuer
or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Debenture Issuer, shall not be entitled
to vote or consent and shall, for purposes of such vote or consent, be
treated as if such Securities were not outstanding, PROVIDED, HOWEVER that
persons otherwise eligible to vote to whom the Debenture Issuer or any of
its subsidiaries have pledged Capital Securities may vote or consent with
respect to such pledged Capital Securities under any of the circumstances
described herein.
(j) Holders of the Capital Securities will have no rights to
appoint or remove the Trustees, who may be appointed, removed or replaced
solely by the Debenture Issuer, as the Holder of all of the Common
Securities.
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.
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(c) Subject to Section 2.6 of the Declaration and only after all
Trust Enforcement Events with respect to the Capital Securities have been
cured, waived, or otherwise eliminated and subject to the requirement of
the Property Trustee obtaining a tax opinion in certain circumstances set
forth in this paragraph (c), the Holders of a Majority in liquidation
amount of the Common Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee, or direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to
direct the Property Trustee, as Holder of the Debentures, to (i) exercise
the remedies available to it under the Indenture as a Holder of the
Debentures, or (ii) consent to any amendment or modification of the
Indenture or the Debentures where such consent shall be required; PROVIDED,
HOWEVER, that where a consent or action under the Indenture would require
the consent or act of the Holders of more than a majority in aggregate
principal amount of Debentures affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the Common
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under
no obligation to take any of the actions described in clause 7.6(c)(i) and
(ii) above unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action, for
U.S. federal income tax purposes the Trust will not fail to be classified
as a grantor trust and each Holder will be treated as owning an undivided
beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of record of Common Securities has made a
written request, such Holder of record of Common Securities may, to the
extent permitted by applicable law, directly institute a legal proceeding
directly against the Debenture Issuer, as sponsor of the Trust, to enforce
the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
person or entity.
(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
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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. The Property
Trustee 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.
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(c) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
the Trust shall execute, and the Property Trustee shall, upon a Company
Order for the authentication, authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Trust duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(e) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Trust may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities.
(f) The Trust shall not be required (i) to issue, register the
transfer of or exchange any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 7.4
and ending at the close of business on the day of such mailing or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate and
(ii) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them, the Sponsor and
the Trust harmless, then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, any Regular Trustee on
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.
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Section 7.10 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole
holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
Section 7.11 Global Securities.
If the Trust shall establish that the Capital Securities are to
be issued in the form of one or more Global Securities, then a Regular
Trustee on behalf of the Trust shall execute and the Property Trustee
shall, upon receipt of a Company Order for the authentication, authenticate
and deliver one or more Global Securities that (i) shall represent and
shall be denominated in an amount equal to the aggregate liquidation amount
of all of the Capital Securities to be issued in the form of Global
Securities and not yet canceled, (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."
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Definitive Capital Securities issued in exchange for all or a
part of a Global Security pursuant to this Section 7.11 shall be registered
in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such definitive Capital
Securities to the persons in whose names such definitive Capital Securities
are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or canceled, such Global Securities shall be, upon
receipt thereof, canceled by the Property Trustee in accordance with
standing procedures and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in
Global Securities is exchanged for definitive Capital Securities, redeemed,
canceled or transferred to a transferee who receives definitive Capital
Securities therefor or any definitive Capital Security is exchanged or
transferred for part of Global Securities, the principal amount of such
Global Securities shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be reduced
or increased, as the case may be, and an endorsement shall be made on such
Global Securities by the Property Trustee or the Custodian, at the
direction of the Property Trustee, to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes,
including the making of payments due on the Capital Securities, deal with
the Depositary as the authorized representative of the Holders for the
purposes of exercising the rights of Holders hereunder. The rights of the
owner of any beneficial interest in a Global Security shall be limited to
those established by law and agreements between such owners and depository
participants or Euroclear and Cedel; PROVIDED that no such agreement shall
give any rights to any person against the Trust or the Property Trustee
without the written consent of the parties so affected. Multiple requests
and directions from and votes of the Depositary as holder of Capital
Securities in global form with respect to any particular matter shall not
be deemed inconsistent to the extent they do not represent an amount of
Capital Securities in excess of those held in the name of the Depositary or
its nominee.
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
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and a Regular Trustee on behalf of the Trust shall execute and the Property
Trustee shall authenticate, upon a receipt of a Company Order for the
authentication, and deliver Capital Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount
equal to the principal amount of the Global Security or Capital Securities
representing such Capital Securities in exchange for such Global Security
or Capital Securities.
The Trust may at any time and in its sole discretion determine
that the Capital Securities issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Capital
Securities. In such event a Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, Capital
Securities in definitive registered form, in any authorized denominations,
in an aggregate liquidation amount equal to the principal amount of the
Global Security or Capital Securities representing such Capital Securities,
in exchange for such Global Security or Capital Securities.
Notwithstanding any other provisions of this Declaration, 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.
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 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.
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
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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;
(vi) the written direction to the Property Trustee from the
Sponsor to terminate the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by
applicable law, distribute Debentures to Holders in exchange
for the Securities; PROVIDED, HOWEVER that the Property
Trustee shall have first received (A) an opinion of counsel
to the Sponsor to the effect that such distribution will not
be a taxable event to the Holders, (B) any necessary
approvals by the Federal Reserve and (C) an Officers'
Certificate from the Sponsor that all conditions precedent
to such termination have been satisfied; or
(vii) 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.
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(a) In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a "Liquidation"),
the Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
holders of the Capital Securities and Common Securities their Pro Rata
interest in the Junior Subordinated Debentures, unless such distribution is
determined by the Property Trustee not to be practicable, in which event
such holders will be entitled to receive out of the assets of the Trust
available for distribution to holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to,
in the case of holders of Capital Securities, the aggregate of the
liquidation amount plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution").
(b) If, upon any such Liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis. The Holders of the Common Securities will be entitled to
receive distributions upon any such Liquidation Pro Rata with the Holders
of the Capital Securities except that if an Indenture Event of Default has
occurred and is continuing, the Capital Securities shall have a preference
over the Common Securities with regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(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.
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(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Capital Securities shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by
this Declaration or by law, except that an Indemnified Person shall be
liable or any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Securities
might properly be paid.
Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
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
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contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
Section 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
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
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Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Debenture
Issuer Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Debenture Issuer Indemnified
Person shall have been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall deem
proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Debenture Issuer Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Debenture Issuer Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
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
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disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion or (C) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Debenture
Issuer Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Debenture
Issuer Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in instances
where the Regular Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person deliberately breached his duty
to the Trust or its Common or Capital Security Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 9.4(a)
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
9.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Debenture Issuer Indemnified Person who serves in such
capacity at any time while this Section 9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall not affect any rights or
obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Debenture Issuer
Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
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
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benefit of the heirs, executors and administrators of such a person. The
obligation to indemnify as set forth in this Section 9.4(a) shall survive
the satisfaction and discharge of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) an Affiliate of the Property
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Property Trustee and the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in
this Section 9.4(a) shall survive the satisfaction and discharge of this
Declaration.
Section 9.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others,
similar or dissimilar to the activities of the Trust, and the Trust and the
Holders of Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with
the activities of the Trust, shall not be deemed wrongful or improper. No
Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee
shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or
other opportunity. Any Covered Person, the Delaware Trustee and the
Property Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
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.
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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.
(b) 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.
(c) 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.
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The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Trust to assist it in determining
the extent of, and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions and,
unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and
pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event
of any claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to be withheld
was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by
a written instrument approved and executed by (i) the Regular Trustees (or,
if there are more than two Regular Trustees, a majority of the Regular
Trustees) and (ii) by the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee;
and (iii) by the Delaware Trustee if the amendment affects the rights,
powers, duties, obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(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
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conforms to, the terms of this Declaration (including
the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than as a
grantor trust for U.S. federal income tax purposes;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment
Company Act.
(c) At such time after the Trust has issued any Securities that
remain outstanding, if amendment would (i) adversely affect the powers,
preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise or (ii) result in the
dissolution, winding-up or termination of the Trust other than pursuant to
the terms of this Declaration or, (iii) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of
any distribution required to be made in respect of the Securities as of a
specified date or (iv) restrict the right of a Holder of Securities to
institute suit for the enforcement of any such payment on or after such
date, then the Holders of the Securities voting together as a single class
will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of at least a
Majority in Liquidation Amount of the Securities affected thereby; PROVIDED
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.
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(f) The rights of the Holders of the Common Securities under
Article 6 to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a
Majority in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) to cure any ambiguity, correct or supplement any provisions
in this Declaration that may be inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under this Declaration that
shall not be inconsistent with the other provisions of this
Declaration;
(ii) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure
that the Trust will be classified as a grantor trust and
will not be taxable as a corporation for U.S. federal income
tax purposes at all times that any Securities are
outstanding or to ensure that the Trust will not be required
to register as an "investment company" under the Investment
Company Act; or
(iii) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the rights, preferences or privileges of the
Holders.
provided, however, that such action shall not adversely affect in any
material respect the interests of any Holder of Capital Securities or
Common Securities, and any amendments of this Declaration shall become
effective when notice thereof is given to the Holders of Capital Securities
and Common Securities.
(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 7.1 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
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the foregoing provision, each and every Holder of Capital Securities shall
be entitled to such relief as can be given either at law or equity.
Section 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of
the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange
on which the Capital Securities are listed or admitted for trading, if any.
The Regular Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of
such class of Securities. Such direction shall be given by delivering to
the Regular Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call
a meeting and only those Securities specified shall be counted for purposes
of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders
of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration
or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders
of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if
a consent in writing setting forth the action so taken is
signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Security Holders for the
purpose of taking any action without a meeting shall be
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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.
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
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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,
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).
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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
111 Lyon Street, N.W.
Grand Rapids, MI 49503
Attention: Corporate Secretary
Facsimile: (616) 771- 5272
(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):
Bankers Trust (Delaware)
1011 Centre Road, Suite 200
Wilmington, Delaware 19805-1266
Attention: Lisa Wilkins
Facsimile: (302) 636-3222
(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
111 Lyon Street, N.W.
Grand Rapids, MI 49503
Attn: Corporate Secretary
Facsimile: (616) 771-5272
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(e) if given to any Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed or mailed by first class mail,
postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
Section 13.2 Governing Law.
THIS DECLARATION AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS DECLARATION AND
THE SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE.
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
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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
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.
* * * * *
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IN WITNESS WHEREOF, the undersigned have caused these presents to
be executed as of the day and year first above written.
OLD KENT FINANCIAL CORPORATION,
as Sponsor and Common Securities Holder
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee
By:
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee
By:
Name:
Title:
_________________, as Regular Trustee
_________________, as Regular Trustee
_________________, as Regular Trustee
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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 [II,
III or IV] 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 [II, III OR IV]
[_____%] [FLOATING RATE] SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT [$_____] PER CAPITAL SECURITY)
OLD KENT CAPITAL TRUST [II, III or IV], 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 [$_____]
per Capital Security) (the "Capital Securities"). The Capital Securities
are transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in the Declaration (as defined
below). The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities represented hereby are
issued and shall in all respects be subject to the provisions of the
<PAGE>
Amended and Restated Declaration of Trust of the Trust, dated as of
_________ (as the same may be amended from time to time (the
"Declaration"), among Old Kent Financial Corporation, as Sponsor (the
"Company"),_____________, ____________ and _____________, 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. Capitalized terms
used but not defined herein have the meaning given to them in the
Declaration.
By acceptance, the Holder agrees to treat, for United States
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 _____________________.
OLD KENT CAPITAL TRUST [II, III or IV]
By:
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:
Authorized Officer
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EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. _ NUMBER OF COMMON SECURITIES: ______
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OLD KENT CAPITAL TRUST [II, III OR IV]
COMMON SECURITIES
(LIQUIDATION AMOUNT [$_____] PER COMMON SECURITY)
Old Kent Capital Trust [II, III or IV], 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 [$_____] 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
__________ (as the same may be amended from time to time, the
"Declaration"), among Old Kent Financial Corporation, as
Sponsor,_____________, ____________ and ____________, 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. 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. Capitalized terms
used but not defined herein shall have the meaning given them in the
Declaration.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership
interest in the Debentures.
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
___ day of ________.
OLD KENT CAPITAL TRUST [II, III or IV]
By:
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:
Authorized Officer
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EXHIBIT 4(c)
OLD KENT FINANCIAL CORPORATION
TO
BANKERS TRUST COMPANY
a New York banking corporation, Trustee
INDENTURE
Dated as of ________ __, 199_
Junior Subordinated Debentures
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE - DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . 3
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . 4
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . 5
Investment Company Act. . . . . . . . . . . . . . . . . . . . . 5
Investment Company Event. . . . . . . . . . . . . . . . . . . . 5
Junior Subordinated Securities. . . . . . . . . . . . . . . . . 6
Legal Defeasance. . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . 6
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<PAGE>
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . 7
Property Trustee. . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . 7
Regular Trustee . . . . . . . . . . . . . . . . . . . . . . . . 7
Regulatory Capital Event. . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 8
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register . . . . . . . . . . . . . . . . . . . . . . . 8
Security Registrar. . . . . . . . . . . . . . . . . . . . . . . 8
Special Event . . . . . . . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Securities. . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . 9
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions; Officers'
Certificate of Evidence. . . . . . . . . . . . . . . .10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . .10
SECTION 104. Acts of Holders; Record Dates. . . . . . . . . . . . .11
SECTION 105. Notices, Etc. to Trustee and the Company . . . . . . .13
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . .13
SECTION 107. Conflict With Trust Indenture Act. . . . . . . . . . .14
SECTION 108. Effect of Headings and Table of Contents . . . . . . .14
SECTION 109. Separability Clause. . . . . . . . . . . . . . . . . .14
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . . . .14
SECTION 111. Governing Law. . . . . . . . . . . . . . . . . . . . .14
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . .15
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<PAGE>
ARTICLE TWO - SECURITY FORMS
SECTION 201. Form of Security . . . . . . . . . . . . . . . . . . .15
ARTICLE THREE - THE SECURITIES
SECTION 301. Title and Terms. . . . . . . . . . . . . . . . . . . .16
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . .20
SECTION 303. Execution, Authentication, Delivery and Dating . . . .20
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . .21
SECTION 305. Registration; Registration of Transfer and Exchange. .22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . .23
SECTION 307. Payment of Interest; Interest Rights Preserved . . . .24
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . .25
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . .26
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . .26
SECTION 311. Right of Set-off . . . . . . . . . . . . . . . . . . .27
SECTION 312. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . .27
SECTION 313. Global Securities. . . . . . . . . . . . . . . . . . .27
SECTION 314. Special Transfer Provisions.. . . . . . . . . . . . .30
SECTION 315. Agreed Tax Treatment.. . . . . . . . . . . . . . . . .31
SECTION 316. Shortening or Extension of Stated Maturity.. . . . . .31
ARTICLE FOUR - SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . .32
SECTION 402. Legal Defeasance . . . . . . . . . . . . . . . . . . .32
SECTION 403. Covenant Defeasance. . . . . . . . . . . . . . . . . .33
SECTION 404. Conditions to Legal Defeasance or Covenant Defeasance.34
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<PAGE>
SECTION 405. Application of Trust Money . . . . . . . . . . . . . .35
SECTION 406. Indemnity for U.S. Government Obligations. . . . . . .35
ARTICLE FIVE - REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . .35
SECTION 502. Acceleration of Maturity; Rescission and Annulment . .36
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 504. Trustee may File Proofs of Claim . . . . . . . . . . .38
SECTION 505. Trustee may Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . .38
SECTION 506. Application of Money Collected . . . . . . . . . . . .39
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . .39
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest; Capital Security Holders' Rights. . . . . . 40
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . .40
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . .41
SECTION 511. Delay or Omission not Waiver . . . . . . . . . . . . .41
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . .41
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . .42
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . .42
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . .43
ARTICLE SIX - TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . .43
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . .44
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . .44
SECTION 604. Not Responsible for Recitals or Issuance of Securities45
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<PAGE>
SECTION 605. Trustee and Other Agents may Hold Securities . . . . .46
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . .46
SECTION 607. Compensation; Reimbursement; and Indemnity . . . . . .46
SECTION 608. Disqualification; Conflicting Interests. . . . . . . .47
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . .47
SECTION 610. Resignation and Removal; Appointment of Successor. . .48
SECTION 611. Acceptance of Appointment by Successor . . . . . . . .49
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 613. Preferential Collection of Claims Against Company. . .51
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . .52
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . .52
ARTICLE EIGHT - CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms .52
SECTION 802. Successor Person Substituted . . . . . . . . . . . . .53
ARTICLE NINE - SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . .54
SECTION 902. Supplemental Indentures With Consent of Holders. . . .55
SECTION 903. Execution of Supplemental Indentures . . . . . . . . .56
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . .57
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<PAGE>
SECTION 905. Conformity With Trust Indenture Act. . . . . . . . . .57
SECTION 906. Reference in Securities to Supplemental Indentures . .57
ARTICLE TEN - COVENANTS
SECTION 1001. Payment of Principal and Interest . . . . . . . . . .57
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . .58
SECTION 1003. Money for Security Payments to be Held in Trust . . .58
SECTION 1004. Statements by Officers as to Default. . . . . . . . .59
SECTION 1005. Waiver of Certain Covenants . . . . . . . . . . . . .60
SECTION 1006. Payment of the Trust's Costs and Expenses . . . . . .60
SECTION 1007. Restrictions on Payments and Distributions. . . . . .60
SECTION 1008. Additional Sums . . . . . . . . . . . . . . . . . . .61
ARTICLE ELEVEN - SUBORDINATION OF SECURITIES
SECTION 1101. Securities Subordinate to Indebtedness. . . . . . . .62
SECTION 1102. Default on Indebtedness . . . . . . . . . . . . . . .62
SECTION 1103. Prior Payment of Indebtedness Upon Acceleration of
Securities. . . . . . . . . . . . . . . . . . . . . .63
SECTION 1104. Liquidation; Dissolution; Bankruptcy. . . . . . . . .63
SECTION 1105. Subrogation . . . . . . . . . . . . . . . . . . . . .65
SECTION 1106. Trustee to Effectuate Subordination . . . . . . . . .66
SECTION 1107. Notice by the Company . . . . . . . . . . . . . . . .66
SECTION 1108. Rights of the Trustee; Holders of Indebtedness. . . .67
SECTION 1109. Subordination May Not Be Impaired . . . . . . . . . .67
ARTICLE TWELVE - REDEMPTION OF SECURITIES
SECTION 1201. Terms of Redemption . . . . . . . . . . . . . . . . .68
SECTION 1202. Applicability of Article. . . . . . . . . . . . . . .68
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<PAGE>
SECTION 1203. Election to Redeem; Notice to Trustee . . . . . . . .69
SECTION 1204. Selection by Trustee of Securities to be Redeemed . .69
SECTION 1205. Notice of Redemption. . . . . . . . . . . . . . . . .69
SECTION 1206. Deposit of Redemption Price . . . . . . . . . . . . .71
SECTION 1207. Securities Payable on Redemption Date . . . . . . . .71
SECTION 1208. Securities Redeemed in Part.. . . . . . . . . . . . .71
ARTICLE THIRTEEN - SINKING FUNDS
SECTION 1301. Applicability of Article.. . . . . . . . . . . . . . .72
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities.72
SECTION 1303. Redemption of Securities for Sinking Fund. . . . . . .72
Exhibit A Form of Amended and Restated Declaration of Trust
Exhibit B Form of Guarantee Agreement
Exhibit C Form of Junior Subordinated Security
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<PAGE>
RECONCILIATION AND TIE OF
SECTIONS 310 THROUGH 318 OF THE
TRUST INDENTURE ACT OF 1939,
AS AMENDED, AND THIS INDENTURE:
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)
(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
Note: This reconciliation and tie shall
not, for any purpose, be deemed to
be a part of this Indenture.
<PAGE>
<PAGE>
This INDENTURE is made as of ________ __, 199_, between Old Kent
Financial Corporation, a corporation duly organized and existing under the
laws of the State of Michigan (the "Company"), having its principal office
at One Vandenberg Center, 111 Lyon Street, N.W., Grand Rapids, MI 49503 and
Bankers Trust Company, a New York banking corporation, as indenture trustee
(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 from time to time of its unsecured junior subordinated debentures
in series (the "Junior Subordinated Securities" or the "Securities")
of substantially the tenor provided in this Indenture, to evidence loans
made to the Company of the proceeds from the issuance from time to time by
one or more business trusts (each, a "Trust") of preferred subordinated
capital interests (the "Capital Securities") and common subordinated
capital interests (the "Common Securities" and, collectively with the
Capital Securities, the "Trust 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:
(a) 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>
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean the accounting principles that are generally
accepted at the date or time of such computation; PROVIDED, that when
two or more principles are so generally accepted, it shall mean that
set of principles consistent with those in use by the Company;
(d) 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;
(e) a reference to any Person shall include its successor and
assigns;
(f) 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;
(g) 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;
(h) 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; and
(i) the following terms have the meanings given to them in this
Section 101(i):
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" means the interest, if any, that shall
accrue on any interest of the Securities of any series the payment of which
has not been made on the applicable Interest Payment Date and which shall
accrue at the rate per annum specified or determined as specified in such
Security.
"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,
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<PAGE>
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
and acceptable to the Company 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.
"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 a duly authorized 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 related Declaration, is
closed for business.
"Capital Securities" has the meaning specified in the Recitals to
this Indenture.
"Cedel" means Cedel Bank, societe anonyme.
"Closing Date" means _____________, 199_ and any other dates that
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 Exchange Act, 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" has the meaning specified in the Recitals to
this Indenture.
"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
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<PAGE>
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust and agency
services shall be administered, which office 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, substantially in the form attached hereto as Exhibit A, or
substantially in the form as may be specified as contemplated by Section
301 with respect to the Securities of any series, 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.
"Dollar" means the currency of the United States of America that,
as the time of payment, is legal tender for the payment of public and
private debts.
"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 310.
"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 or its nominee for such Securities.
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<PAGE>
"Guarantee" means the Guarantee Agreement substantially in the
form attached hereto as Exhibit B, or substantially in the form as may be
specified as contemplated by Section 301 with respect to the Securities of
any series, in each case made by the Company in favor of the trustee named
therein 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, or (d) any indebtedness of the
Company to any employee of the Company.
"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.
"Interest Payment Date", when used with respect to any
installment of interest on a Security, means the date specified in such
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Security as the fixed date on which an installment of interest with respect
to the Securities is due and payable.
"Investment Company Act" means the Investment Company Act of
1940, as amended, and any successor legislation.
"Investment Company Event" means, with respect to a Trust, that
the Corporation shall have received an Opinion of Counsel 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 Securities.
"Junior Subordinated Securities" has the meaning specified in the
Recitals to Indenture.
"Legal Defeasance" has the meaning specified in Section 402.
"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.
"Officers' Certificate" means a certificate signed on behalf of
the Company by the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) 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;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements and opinions
contained in such certificate or opinion are based;
(c) 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
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(d) 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), and
delivered to the Trustee. An opinion of counsel may rely on Officers'
Certificates as to matters of fact. Any Opinion of Counsel delivered with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each individual signing the Opinion of Counsel
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the opinions contained in the Opinion of
Counsel are based;
(c) a statement that each such individual has made such examination
or investigation as, in such individual's opinion, is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
"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 canceled 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
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protected in making such a determination or relying upon any such quorum,
consent or vote, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or interest on any Securities on behalf of the Company.
"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.
"Property Trustee" has the meaning set forth in the Declaration.
"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.
"Regular Record Date" for the interest payable on any Interest
Payment Date means, unless otherwise provided pursuant to Section 301 with
respect to Securities of a series, the fifteenth day preceding the relevant
Interest Payment Date (whether or not a Business Day).
"Regular Trustee" has the meaning specified in the Declaration.
"Regulatory Capital Event" means, with respect to a Trust, that
the Company shall have received an Opinion of Counsel 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 Trust's 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
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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 the
President, any Principal Vice President, any Assistant Vice President, any
Managing Director, the Treasurer, any Assistant Treasurer, 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.
"Securities" has the meaning specified in the Recitals to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor legislation.
"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, as such date may be shortened or extended as provided pursuant to
the terms of such Security and this Indenture.
"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, with respect to a Trust, that the Corporation
shall have received an Opinion of Counsel 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
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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 Trust's Capital
Securities under the related 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" has the meaning specified in the Recitals to this
Indenture.
"Trust Securities" has the meaning specified in the Recitals to
this Indenture.
"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, and "Trustee" as
used with respect to the Securities of any series shall mean the Trustee
with respect to the Securities of that series.
"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
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of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on
the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
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.
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SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee at the address specified in
Section 105 and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series 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 of such series, PROVIDED that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply to, the giving or taking of any notice, declaration,
request, direction or other action referred to in the next paragraph. 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. If any record date is set
pursuant to this paragraph, the Holders (or their designated proxies) of
Outstanding Securities of the relevant series on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date, PROVIDED that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date (as defined in this Section 104 (c)) by Holders
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of the requisite principal amount of Outstanding Securities of such series
on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which
a record date has previously been set pursuant to this paragraph (whereupon
the record date previously set shall automatically and with no action by
any Person be canceled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any notice of default, (ii) any
declaration of acceleration referred to in Section 502, (iii) any request
to institute proceedings referred to in Section 507(b), or (iv) any
direction referred to in Section 512, in each case with respect to
Securities of such series. If any record date is set pursuant to this
paragraph, the Holders (or their designated proxies) of Outstanding
Securities of such series on such record date, and no other Holders, shall
be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date, PROVIDED
that no such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
canceled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day, PROVIDED that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 106, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set
such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the
180th day after the applicable record date.
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Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
(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:
(a) 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
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company (Attention: Corporate Secretary) addressed to
it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
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
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notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made by telecopier or overnight
air courier guaranteeing next day delivery.
SECTION 107. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be
a part of and govern this Indenture, the provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or so be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Indebtedness, the holders of Capital
Securities (to the extent provided herein) and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
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
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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 Securities of each series and the Trustee's certificate of
authentication shall be in substantially the form attached hereto as
Exhibit C or in such other form or forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 303 with respect to the
authentication and delivery of such Securities.
If the Securities are distributed to the holders of the 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 or forms provided herein, 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 hereof), duly executed by the Company
and authenticated (upon receipt of a Company Order for the authentication)
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by the Trustee or the Authenticating Agent as provided herein, which
Securities, if to be held in global form by any Depositary, may be
deposited on behalf of the holders of the Securities represented thereby
with the Trustee, as Custodian for the Depositary, and registered in the
name of a nominee of the Depositary.
Any Global Security shall represent such of the outstanding
Securities as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be increased or reduced to
reflect transfers or exchanges permitted hereby. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
amount of outstanding Securities represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in such manner
and upon written instructions given by the holder of such Securities in
accordance with the Indenture. Payment of principal, interest and premium,
if any, on any Global Security shall be made to the Holder of such Global
Security.
The Securities shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these or other methods, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:
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(a) the title of the Securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of
the Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1207 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder); PROVIDED, HOWEVER, that the authorized aggregate principal
amount of such series may be increased above such amount by a Board
Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of
the Securities of such series is payable or the method of
determination thereof;
(d) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates and extent to
which Additional Interest, if any, shall be payable in respect of any
Securities of such series, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 310 or as
otherwise set forth therein, of the Company to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest
payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of, premium, if any,
and interest on the Securities of such series shall be payable, the
place or places where the Securities of such series may be presented
for registration of transfer or exchange, and the place or places
where notices and demands to or upon the Company in respect of the
Securities of such series may be made;
(f) the period or periods within or the date or dates on which,
if any, the price or prices at which and the terms and conditions upon
which the Securities of such series may be redeemed, in whole or in
part, at the option of the Company;
(g) the obligation or the right, if any, of the Company to
redeem, repay or purchase the Securities of such series pursuant to
any sinking fund, amortization or analogous provisions, or at the
option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including
currency unit or units) in which and the other terms and conditions
upon which Securities of such series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
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(h) the denominations in which any Securities of such series
shall be issuable, if other than denominations of $1,000.00 and any
integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of such series shall be
denominated and the manner of determining the equivalent thereof in
Dollars for purposes of the definition of Outstanding;
(j) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Company set forth herein with
respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be
payable upon declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to
permit or facilitate the issuance of the Securities of such series in
bearer form, registrable or not registrable as to principal, and with
or without interest coupons;
(m) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Securities of
such series or the manner in which such amounts will be determined;
(n) whether the Securities of such series, or any portion
thereof, shall initially be issuable in the form of a temporary Global
Security representing all or such portion of the Securities of such
series and provisions for the exchange of such temporary Global
Security for definitive Securities of such series;
(o) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositories for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that
set forth in Section 313 and any circumstances in addition to or in
lieu of those set forth in Section 305 in which any such Global
Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depository for such Global Security or a nominee thereof;
(p) the appointment of any Paying Agent or Agents for the
Securities of such series;
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(q) the terms of any right to convert or exchange Securities of
such series into any other securities, cash or property of the
Company, and the additions or changes, if any, to this Indenture with
respect to the Securities of such series to permit or facilitate such
conversion or exchange;
(r) the form or forms of the Declaration and Guarantee
Agreement, if different from the forms attached hereto as Exhibits A
and B, respectively;
(s) the relative degree, if any, to which the Securities of the
series shall be senior to or be subordinated to other series of
Securities in right of payment, whether such other series of
Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or
in or pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
The principal of and interest on each series of 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 unless
otherwise provided with respect to the Securities of any series, 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.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $1,000.00 and any integral multiple
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thereof, unless otherwise specified as contemplated by Section 301.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Company Order shall authenticate and make
available for delivery such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or
more Board Resolutions as permitted by Section 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201 that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 201, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
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If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
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. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture
such Security shall be deemed never to have to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
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 of such series 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 of any series are issued, the Company
will cause definitive Securities of such series 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.
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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 the
same series of authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee, a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for
such purpose, the Company shall execute, and the Trustee shall authenticate
and make available for delivery, in the name of the designated transferee
or transferees, one or more new Securities of the same series 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 the same series 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.
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No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 304, 906 or 1208 not
involving any transfer.
If the Securities are to be redeemed in part, the Company shall
not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 1204 and ending at the
close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in
part.
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 authenticate and make
available for delivery in exchange therefor, a new Security of the same
series 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 authenticate and make available for delivery, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series
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
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discretion may, subject to the preceding paragraph, pay such Security
instead of issuing a new Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and its
agents and counsel) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series 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 in respect of Securities of such series, except
that, unless otherwise provided in the Securities of such series, interest
payable on the Stated Maturity of the principal of a Security shall be paid
to the Person to whom principal is paid. The initial payment of interest
on any Security of any series which is issued between a Regular Record Date
and the related Interest Payment Date shall be payable as provided in such
Security or in the Board Resolution pursuant to Section 201 and Section 301
with respect to the related series of Securities.
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 (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
in respect of which interest is in default (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
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paid on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of a Security of
such series 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 of such series (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 (b).
(b) 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 of such series in respect
of which interest is in default 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 were carried by such
other Security.
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, premium, if any, 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,
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director, employee or agent of the Company or the Trustee shall be affected
by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled 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 canceled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled 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; Deferral of Interest.
(a) Except as otherwise specified as contemplated by Section 201
or Section 301 for Securities of any series, interest on the Securities of
each series for any partial period shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual days elapsed in a partial
month in such period, and interest on the Securities of each series for a
full period shall be computed by dividing the rate per annum by the number
of interest periods that together constitute a full twelve months.
(b) If specified as contemplated by Section 201 or Section 301
with respect to the Securities of a particular series, so long as no Event
of Default has occurred and is continuing, the Company shall have the
right, at any time during the term of the Securities of such series, 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 such period
or periods as may be specified as contemplated by Section 201 or
Section 301 (each, an "Extension Period") during which Extension Periods
the Company will have the right to make partial payments of interest on any
Interest Payment Date. 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 [monthly] [quarterly]
[semi-annually] at the rate specified on the 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. No Extension
Period may extend beyond the Stated Maturity of the principal of the
Securities of such series. Upon the termination of any such Extension
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Period and the payment of all amounts then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period subject to the
above requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company shall give the
Trustee, the Property Trustee and the Regular Trustees written notice of
its election of such Extension Period at least one Business Day prior to
the Regular 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.
SECTION 311. Right of Set-off.
Notwithstanding anything to the contrary in this Indenture or any
Security, the Company shall have the right to set-off any payment it is
otherwise required to make hereunder or 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 relating to such
Security or under Section 508 hereof.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; PROVIDED that any
such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company shall promptly notify the Trustee of any change in the "CUSIP"
numbers.
SECTION 313. Global Securities.
If the Securities of any series 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 of any series 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 of such series to be issued in the form of Global Securities
and not yet canceled, (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
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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. 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 except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Every
Security delivered upon registration or transfer of, or in exchange for, or
in lieu of, this Global Security shall be a Global Security subject to the
foregoing, except in the limited circumstances described above. Unless
this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co or in such other
name as is requested by an authorized representative of DTC (and any
payment is to be made to Cede & Co or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co, has an interest herein."
Definitive Securities issued in exchange for all or a part of a
Global Security pursuant to this Section 313 shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. Upon execution and authentication, the
Security Registrar shall deliver such definitive Securities to the persons
in whose names such definitive Securities are so registered.
At such time as all interests in Global Securities of a series
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 of a series is exchanged for definitive Securities of
such series, redeemed, canceled or transferred to a transferee who receives
definitive Securities of such series therefor or any definitive Security is
exchanged or transferred for part of Global Securities of such series, 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.
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The Company and the Trustee may for all purposes, including the
making of payments due on the Securities of any series, 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 of any series 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 of
any series 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 of such series in excess of those held in the name of the
Depositary or its nominee.
If at any time the Depositary for any Securities of any series
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 of such series shall no longer be effective and the Company
shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and make available for delivery Securities of such series 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 of any series 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 of such series 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, 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
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such nominee to a successor Depositary or a nominee of such successor
Depositary.
Interests of beneficial owners in a Global Security of any series
may be transferred or exchanged for definitive Securities of the same
series and definitive Securities of any series may be transferred or
exchanged for Global Securities of the same series in accordance with rules
of the Depositary and the provisions of Section 314.
Any Security of any series 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 to comply with the rules and
regulations of any securities exchange upon which the Securities of such
series may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which
any particular Securities are subject.
SECTION 314. Special Transfer Provisions.
At any time at the request of the beneficial holder of an
interest in a Security of any series in global form, such beneficial holder
shall be entitled to obtain a definitive Security of such series upon
written request to the Trustee in accordance with the standing instructions
and procedures existing between the Depositary and the Trustee for the
issuance thereof. Upon receipt of any such request, the Trustee will cause
the aggregate principal amount of the Security of such series 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 of such series 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 of any series
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 of such series 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 of such
series in the appropriate aggregate principal amount in the name of such
transferee (or its nominee) and bearing such legends as may be required by
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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.
If a holder of a definitive Security of any series wishes at any
time to exchange its Security for a beneficial interest in any Global
Security of the same series (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 of the same series (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 and as may be from time to time adopted by the Company and the
Trustee.
Any beneficial interest in one of the Global Securities of any
series that is transferred to a person who takes delivery in the form of an
interest in the other Global Security of such series 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.
SECTION 315. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company
and, by its acceptance of a Security or a beneficial interest therein, the
Holder of, and any Person that acquires a beneficial interest in, such
Security agree that for United States Federal, state and local tax purposes
it is intended that such Security constitutes indebtedness.
SECTION 316. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 201 or Section 301 with
respect to the Securities of a particular series, the Company shall have
the right to (i) shorten the Stated Maturity of the principal of the
Securities of such series at any time to any date not earlier than the
first date on which the Company has the right to redeem the Securities of
such series, and (ii) extend the Stated Maturity of the principal of the
Securities of such series at any time at its election for one or more
periods, but in no event to a date later than the 49th anniversary of the
first Interest Payment Date following the original issue date of the
Securities of such series; PROVIDED that, if the Company elects to exercise
its right to extend the Stated Maturity of the principal of the Securities
of such series pursuant to clause (ii), above, at the time such election
is made and at the time of extension (A) the Company is not in bankruptcy,
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otherwise insolvent or in liquidation, (B) the Company is not in default in
the payment of any interest or principal on such Securities, (C) in the
case of any series of Securities issued to a particular Trust, such Trust
is not in default on payments of Distributions on the Capital Securities
issued by such Trust and no deferred Distributions are accumulated and (D)
such Securities are rated no less than investment grade by any
nationally recognized statistical rating organization. If the Company
elects to shorten or extend the Stated Maturity of Securities of a
particular series, it shall give notice to the Trustee, and the Trustee
shall give notice of such shortening or extension to the Holders of such
Securities, no less than 30 and no more than 60 days prior to the
effectiveness thereof.
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 at 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, premium, if any,
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.
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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 Securities of any series with respect to which the
exact amount described in subparagraph (a) of Section 404 can be determined
at the time of making the deposit referred to in such subparagraph (a), the
Company shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such series 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 such Securities shall no
longer be in effect (except as to (i) rights of registration of transfer
and exchange of such Securities, (ii) substitution of mutilated, destroyed,
lost or stolen Securities, (iii) maintenance of a Paying Agent, (iv) rights
of Holders of such 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 such 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 Securities of any series 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 of such series, (ii)
substitution of mutilated, destroyed, lost or stolen Securities, (iii)
maintenance of a Paying Agent, (iv) rights of Holders of such 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 such 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(c) (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
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the Outstanding Securities of such series 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(c)), whether directly or
indirectly by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision
herein or in any other document, but the remainder of this Indenture and
the Securities shall be unaffected thereby.
SECTION 404. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or 403 to the Outstanding Securities of any series:
(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 of such
series (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
of such series 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;
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(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 of such series will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such deposit and
Covenant Defeasance and will be subject to federal income tax on the
same amount in the same manner and at the same times as would have
been the case if such deposit and Covenant Defeasance had not
occurred;
(d) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under, any
agreement or instrument to which the Company is a party or by which it
is bound; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied
with.
SECTION 405. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 401 shall be held in trust and such money and all money
from such U.S. Government Obligations shall be applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for whose payment such
money and U.S. Government Obligations has been deposited with the Trustee.
SECTION 406. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee and its officers,
directors, employees and agents against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 404 or the principal or interest received in respect of
such obligations other than any such tax, fee or other charge that by law
is for the account of the Holders of Outstanding Securities.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to the
Securities of any series, means any one of the following events that has
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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):
(a) failure for 30 days to pay any interest on the Securities of
that series when due (subject to the deferral of any due date in the
case of an Extension Period); or
(b) failure to pay any principal on the Securities of that
series when due, whether at Maturity, upon redemption, by declaration
of acceleration or otherwise;
(c) 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 of that
series; or
(d) 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 unstated and in effect for a period of 90
consecutive days; or
(e) (A) 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 (B) 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 (C) the filing
by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or
(D) 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
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of the Company or of all or substantially all of the property of the
Company, or (E) the making by the Company of an assignment for the
benefit of creditors; or
(f) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding 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 of that series shall have the right to
declare the principal of and the interest on all the Securities of that
series and any other amounts payable hereunder with respect to that series
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 of that series fail to
declare the payment of all amounts on the Securities of that series to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding series 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 such Capital
Securities) and upon any such declaration such principal and all accrued
interest shall become immediately due and payable (and shall remain
subordinated to the extent provided in Article Eleven notwithstanding such
acceleration).
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 of that series, 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 of that series, (B) the
principal of and premium, if any, on any Securities of that series 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 of that series, 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 of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513. Should the Holders of the Securities of that series fail to
annul such declaration and waive such default, the holders of a majority in
aggregate liquidation amount of the corresponding series of Capital
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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
(a) 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
(b) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and interest, and, to the extent that payment
thereof shall be legally enforceable, interest on any overdue principal and
on any overdue interest, at the rate borne by the Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights
of the Holders of such Securities 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 of such Securities 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
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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 of any series may be prosecuted and enforced by the Trustee
without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of any express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee
with respect to a series with Securities 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 of such series 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: Subject to Article Eleven, to the payment of the amounts
then due and unpaid for principal of and interest on the Securities of such
series 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; and
THIRD: To the Company, if any balance shall remain.
SECTION 507. Limitation on Suits.
No Holder of any Security of such series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
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Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) 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 of such
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of such series, or to obtain or to seek to obtain
priority or preference over any other Holders of such series 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 of such series.
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 of any series on the date such interest or
principal is otherwise payable has occurred and is continuing, then a
holder of corresponding Capital Securities may directly institute a
proceeding for enforcement of payment to such holder directly of the
principal of or interest on the Securities of such series having a
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principal amount equal to the aggregate liquidation amount of the Capital
Securities as such holder on or after the respective due date specified in
such 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
related Declaration), the Company shall remain obligated to pay the
principal of or interest on the corresponding series of 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 such 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 corresponding series of Securities.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 511. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series 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 with
respect to such series, PROVIDED that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 601, the Trustee shall
have the right to decline to follow such direction if a Responsible
Officer or Officers of the Trustee shall, in good faith, determine
that the proceeding so directed would be unjustly prejudicial to the
Holders not joining in any such direction or would involve the Trustee
in personal liability.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 902 and 1005 hereof, the Holders of not less
than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series
waive any past default hereunder and its consequences, except a default
(a) in the payment of the principal of or interest on any
Security of such series (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
(b) 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 of such series 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 the corresponding series 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 of such series
is required under this Indenture, such waiver shall not be effective until
each holder of the corresponding series of 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
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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.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that 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, by the Trustee or by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or in any suit instituted by any Holder for the
enforcement of the right to receive the principal of and interest on any
Security on or after the respective due dates.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE SIX
TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
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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 of any series, 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 of such series.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders of the Securities of any
series notice of any default with respect to the Securities of such series
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 of any series, 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
of such series; PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(c), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default. For
purposes of this Section, the Trustee shall not be deemed to have knowledge
of a default unless a Responsible Officer of the Trustee has actual
knowledge of such default or has received written notice of such default in
the manner contemplated by Section 105.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it in good faith
to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
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and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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
(h) 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
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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.
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,
(a) 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);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
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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
(c) 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 survive
the satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have a
lien prior to the Securities upon all property and lands held or collected
by the Trustee as such, except funds held in trust for the payment of
principal of (and premiums, if any, on) or interest on particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(iv) or Section
501(v), the expenses (including the reasonable charges and expenses of its
agents and counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture or the resignation or removal of the Trustee.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If such
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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 with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the removed Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company may remove the Trustee, or (B)
subject to Section 514, any Holder who has been a bona fide Holder of a
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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 with
respect to the Securities of any series for any cause, the Company shall
promptly appoint a successor Trustee with respect to the Securities of any
series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series 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 with respect to the Securities of
such series and supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders of the Securities of
that series and accepted appointment in the manner hereinafter provided,
any Holder who has been a bona fide Holder of a Security of that series 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 with
respect to the Securities of any series to all Holders of the Securities of
that series in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee with respect to the Securities of
that series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of the appointment hereunder of a successor
Trustee with respect to all Securities, every successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; PROVIDED that, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder. Upon acceptance of appointment by a
successor Trustee as provided in this Section 611, the Company shall mail
notice of the succession of such Trustee hereunder to the Holders of the
Securities as they appear on the Security Register.
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(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an instrument in writing or
an indenture supplemental hereto in which each successor Trustee shall
accept such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such instrument in writing or
supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such instrument in writing or supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent
provided therein and each 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 with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates; PROVIDED that, on request of the Company or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) 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 referred to in paragraph (a) or (b) of this Section.
(d) 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.
(e) 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.
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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).
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; provided, however, that if and so long as the Trustee is the
Securities Registrar for Securities of a series, no such lists need be furnished
with respect to such series of Securities.
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
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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 1999 such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee in writing when the
Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; PROVIDED
that any such information, documents or reports required to be filed with
the Commission pursuant to Section 13(a) or 15(d) of the Securities and
Exchange Act of 1934 shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission.
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:
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(a) 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, premium, if any, and
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;
(b) 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;
(c) 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;
(d) any such lease shall provide that it will remain in effect
so long as any Securities are Outstanding; and
(e) 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
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or lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall,
upon receipt of a Company Order for the authentication, authenticate and
shall make available for delivery any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication pursuant to such provisions and any Securities
which such successor Person thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In the event of any such consolidation, merger, sale, conveyance
or lease, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.
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:
(a) 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
(b) to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or to surrender any right or power herein
conferred upon the Company; or
(c) to establish the form or terms of Securities of any series
as permitted by Sections 201 or 301; or
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(d) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(e) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(f) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination (a) shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplement indenture
which is entitled to the benefit of such provision or (b) shall not
apply to any Outstanding Securities; or
(g) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, PROVIDED that such
action pursuant to this clause (g) shall not adversely affect the
interest of the Holders of Securities of any series in any material
respect or, for so long as any of the corresponding series of Capital
Securities issued by a Trust shall remain outstanding, the holders of
such Capital Securities; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(i) 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
(j) 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 of each series to be
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affected by such supplemental indenture, by Act of such 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 of Securities of such
series under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(a) change the Stated Maturity of (except such changes as are
permitted or contemplated by this Indenture), 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 permitted or
contemplated by this Indenture), 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),
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, 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
(c) modify any of the provisions of this Section, Section 513 or
Section 1005, 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, with respect to the Securities of any series, so long as any
of the corresponding series of Capital Securities remains outstanding, no
such amendment shall be made that adversely affects the holders of such
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 such
Capital Securities then outstanding unless and until the principal of and
any premium on the Securities of such series and all accrued and unpaid
interest thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely
for the benefit of one or more particular series of Securities or Capital
Securities, or which modifies the rights of the Holders of Securities or
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holders of Capital Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities or holders of Capital Securities of
any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trust created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
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 of any series 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 of such
series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company agrees for the benefit of each series of Securities
that it will duly and punctually pay the principal of and interest on the
Securities of that series in accordance with the terms of the Securities of
that series and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each place of payment for each
series of Securities an office or agency where Securities of that series
may be presented or surrendered for registration of transfer or exchange,
where Securities of that series may be surrendered for conversion and where
notices and demands to or upon the Company in respect of Securities of that
series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in location,
of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands. Unless
and until the Company rescinds one or more such appointments, the Company
appoints (i) the Trustee as its Paying Agent in New York, New York with
respect to all series of Securities having a place of payment in New York,
New York and (ii) Old Kent Bank at its principal office as its Paying Agent
in Grand Rapids, Michigan with respect to all series of Securities having a
place of payment in Grand Rapids, Michigan.
The Company may also from time to time designate one or more
other offices or agencies in the United States where the Securities of any
series 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 with
respect to any series of Securities, 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 of that series, segregate and hold in trust for the benefit of
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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 12:00 noon, New York City time, on 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.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in the trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held
by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal or interest
that has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust, if such principal or interest has not been claimed by the Holder of
the Security upon which such payments are due within one year of the date
such principal and interest became due and payable; and the Holder of such
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.
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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. Waiver of Certain Covenants.
Except as otherwise specified or as contemplated by Section 201
or Section 301 for Securities of any series, the Company may, with respect
to the Securities of that series, omit in any particular instance to comply
with any term, provision or condition set forth in any covenant provided
pursuant to Section 901(d) for the benefit of the Holders of the Securities
of that series if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of that
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition, but no waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 1006. Payment of the Trust's Costs and Expenses.
Since each Trust is being formed solely to facilitate an
investment in a corresponding series of 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 of the Trust 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 corresponding series of
Securities. 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")
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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 1007. Restrictions on Payments and Distributions.
The Company agrees with each Holder of Securities of each series
that it 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 of that series 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 of that series (other than (A)
repurchases, redemptions or other acquisitions of shares of capital stock
of the Company in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants or in connection with a
dividend reinvestment or stockholder stock purchase plan, (B) as a result
of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
other class or series of the Company's capital stock or of any class or
series of the Company's indebtedness for any class or series of the
Company's capital stock, (C) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (D) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto or (E) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options, or other rights is
the same stock as that on which the dividend is being paid or ranks PARI
PASSU with or junior to such stock) if at such time (x) there shall have
occurred any event of which the Company has actual knowledge that (1) with
the giving of notice or the lapse of time, or both, would constitute an
Event of Default with respect to the Securities of that series 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 relating to the Capital Securities
corresponding to the Securities of that series or (z) the Company shall
have given notice of its election of an Extension Period with respect to
the Securities of that series as provided herein and shall not have
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rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing. For purposes of this Section 1007, "actual knowledge"
means actual knowledge of the Chairman, the Chief Financial Officer and the
Controller of the Company.
SECTION 1008. Additional Sums.
If the Securities of a series provide for the payment of
additional sums, the Company will pay to the Holder of any Security of that
series additional sums as provided therein. Whenever in this Indenture or
the Securities of any series there is a reference in any context to the
payment of principal or interest on Securities of any series, such mention
shall be deemed to include mention of the payments of the additional sums
provided for in this Section to the extent that, in such context,
additional sums are, were or would be payable in respect thereof pursuant
to the provisions of this Section, and express mention of the payment of
additional sums (if applicable) in any provisions hereof shall not be
construed as excluding additional sums in those provisions hereof where
such express mention is not made.
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, premium, if any, and
interest (including any Additional Interest) on each and all of the
Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full in cash of all Indebtedness.
The provisions of this Article Eleven are made for the benefit of
the holders of Indebtedness and such holders are made obligees hereunder
and any one or more of them may enforce such provisions. Holders of
Indebtedness need not prove reliance on the subordination provisions
hereof.
SECTION 1102. Default on Indebtedness.
In the event and during the continuation of any default in the
payment of principal, premium, interest or any other payment due on any
Indebtedness, or in the event that any event of default with respect to any
Indebtedness shall have occurred and be continuing and shall have resulted
in such Indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable (unless
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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 payments made in respect of any redemption, repayment,
retirement, purchase or other acquisition) of, or interest on, any of the
Securities or in respect of any redemption, repayment, retirement, purchase
or other acquisition of any of 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 the Indebtedness (including any amounts due upon
acceleration), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of
Indebtedness, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character, whether in cash,
properties or securities, by the Company on account of the principal of or
interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; PROVIDED,
HOWEVER, that holders of Indebtedness shall not be entitled to receive
payment of any such amounts to the extent that such holders would be
required by the subordination provisions of such Indebtedness to pay such
amounts over to the obligees on trade accounts payable or other liabilities
arising in the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is
prohibited by the preceding paragraph of this Section 1103, such payment
shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Indebtedness or their respective
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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
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
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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 that (i) the
Indebtedness is assumed by the new corporation, if any, resulting from any
such reorganization or readjustment, and (ii) the rights of the holders of
the Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company
with, or merger of the Company into, another corporation or the liquidation
or dissolution of the Company following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Eight
hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 1104 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Eight hereof.
Nothing in Section 1103 or in this Section 1104 shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
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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 (including any Additional 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 (including any Additional Interest) on
the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other
than the holders of the Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Eleven of the
holders of Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Eleven, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities, shall be entitled to
rely conclusively upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
the Securities, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of the Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Eleven.
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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
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
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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
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.
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ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Terms of Redemption.
Redemption of Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with such
form of Security and this Article; PROVIDED, HOWEVER, that if any provision
of any such form of Security shall conflict with any provision of this
Article, the provision of such form of Security shall govern. Except as
otherwise set forth in the form of Security for such series, each Security
of such series shall be subject to partial redemption only in the amount of
$1,000.00 or integral multiples thereof.
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 has been paid
in full on all Securities Outstanding for all quarterly interest periods
terminating on or prior to the Redemption Date.
SECTION 1202. Applicability of Article.
Redemption of Securities as permitted by Section 1201 shall be
made in accordance with this Article.
SECTION 1203. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities of any series
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 of such series to be redeemed and provide a copy of the notice
of redemption given to Holders of Securities of such series to be redeemed
pursuant to Section 1205.
SECTION 1204. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series 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 of such series not previously called for redemption.
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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 of any
series shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amounts of the
Securities of such series which has been or is to be redeemed.
SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 (provided that the Trustee shall itself
have received notice not less than 45 days prior to the Redemption Date)
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall identify the Securities of the
series to be redeemed (including CUSIP number) and shall state:
(a) the Redemption Date,
(b) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to this Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (if such an estimate of the Redemption Price is
given, a subsequent notice shall be given as set forth above setting
forth the Redemption Price promptly following the calculation
thereof),
(c) 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 that date,
(d) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
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(e) if less than all Outstanding Securities of such series and
having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of
the particular Securities of such series to be redeemed,
(f) that the redemption is for a sinking fund, if such is the
case, and
(g) any other provisions as may be required in respect of the
terms of such series of Securities to be redeemed.
Notice of redemption of Securities of any series 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 and shall be irrevocable. The notice if mailed in the manner
herein provided shall be presumed to have been duly given, whether or not
the Holder receives such notice. In any case, a failure to give such
notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
SECTION 1206. Deposit of Redemption Price.
On or prior to 12:00 noon, New York City time, on 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 on, all the Securities which are to
be redeemed on that date.
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) 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 unless otherwise specified as contemplated by Section 201 or
Section 301, installments of interest whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
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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 the
same series, 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.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 201 or Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any sinking fund payment in excess of
such minimum amount which is permitted to be made by the terms of the
Securities of such series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1302. Each sinking fund payment shall be
applied to the redemption (or purchase by tender or otherwise) of
Securities of any series as provided for by the terms of such Securities.
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may
at its option, at any time no more than 16 months and no less than 45 days
prior to the date on which such sinking fund payment is due, deliver to the
Trustee Securities of such series (together with the unmatured coupons, if
any, appertaining thereto) theretofore purchased or otherwise acquired by
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the Company, except Securities of such series that have been redeemed
through the application of mandatory or optional sinking fund payments
pursuant to the terms of the Securities of such series, accompanied by a
Company Order instructing the Trustee to credit such obligations and
stating that the Securities of such series were originally issued by the
Company by way of BONA FIDE sale or other negotiation for value; PROVIDED
that the Securities to be so credited have not been previously so credited.
The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price for such Securities, as
specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 1303. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for the Securities of such series pursuant to the terms of such Securities,
the portion thereof, if any, which is to be satisfied by payment of cash in
the currency in which the Securities of such series are payable (except as
provided pursuant to Section 1301) and the portion thereof, if any, which
is to be satisfied by delivering and crediting such Securities pursuant to
Section 1302 and will also deliver to the Trustee any Securities to be so
delivered. Such Officers' Certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding sinking
fund payment date. In the case of the failure of the Company to deliver
such Officers' Certificate (or, as required by this Indenture, the
Securities and coupons, if any, specified in such Officers' Certificate) by
the due date therefor, the sinking fund payment due on the succeeding
sinking fund payment date for such series shall be paid entirely in cash
and shall be sufficient to redeem the principal amount of the Securities of
such series subject to a mandatory sinking fund payment without the right
to deliver or credit Securities as provided in Section 1302 and without the
right to make the optional sinking fund payment with respect to such series
at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by
the Trustee (or by the Company if the Company is acting as its own Paying
Agent) on the sinking fund payment date on which such payment is made (or,
if such payment is made before a sinking fund payment date, on the sinking
fund payment date immediately following the date of such payment) to the
redemption of Securities of such series at the Redemption Price specified
in such Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or, if the Company is
acting as its own Paying Agent, segregated and held intrust by the Company
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as provided in Section 1003) for such series and together with such payment
(or such amount so segregated) shall be applied in accordance with the
provisions of this Section 1303. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or
if the Company is acting as its own Paying Agent, segregated and held in
trust as provided in Section 1003) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying
Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for such purpose, to the payment of the principal of
the Securities of such series at Maturity. The Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1204 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 1205. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 1207. On or before each sinking fund payment date,
the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided
in 1003) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 201 or Section 301)
equal to the principal, premium, if any, and any interest accrued to the
Redemption Date for Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section 1303.
Neither the Trustee nor the Company shall redeem any Securities
of any series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event
of Default occurring as a consequence of this paragraph) with respect to
the Securities of such series, except that if the notice of redemption
shall have been provided in accordance with the provisions hereof, the
Trustee (or the Company, if the Company is then acting as its own Paying
Agent) shall redeem such Securities if cash sufficient for that purpose
shall be deposited with the Trustee (or segregated by the Company) for that
purpose in accordance with the terms of this Article Thirteen. Except as
aforesaid, any moneys in the sinking fund for Securities of such series at
the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance
of such default or Event of Default, be held as security for the payment of
the Securities and coupons, if any, of such series; PROVIDED, HOWEVER, that
in case such default or event of Default shall have been cured or waived
herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 1303.
*****
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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.
The parties hereto have caused this Indenture to be duly executed
as of the day and year first written above.
OLD KENT FINANCIAL CORPORATION
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Trustee
By:
Name:
Title:
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EXHIBIT A
FORM OF AMENDED AND RESTATED
DECLARATION OF TRUST
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
OLD KENT CAPITAL TRUST [II, III or IV]
Dated as of ________
<PAGE>
CROSS REFERENCE TABLE
Section of Trust
Indenture Act of SECTION OF
1939, AS AMENDED AGREEMENT
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(c); 6.3(d)
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4; 3.6(j)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .3.9(b); 3.10(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.8
316(a) . . . . . . . . . . . . . . . . . . 2.6(a); 2.6(b); 2.6(c); 7.5; 7.6
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6(e)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.16; 7.5; 7.6
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(h)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(c)
<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. . . . . . . . . . . . . . . . . .2
Closing Date. . . . . . . . . . . . . . . . . . . . . .2
Code. . . . . . . . . . . . . . . . . . . . . . . . . .2
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. . . . . . . . . . . . . . . . . . . .3
Depositary. . . . . . . . . . . . . . . . . . . . . . .3
Distribution. . . . . . . . . . . . . . . . . . . . . .3
DTC . . . . . . . . . . . . . . . . . . . . . . . . . .3
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. . . . . . . . . . . . . . .4
Investment Company. . . . . . . . . . . . . . . . . . .4
Investment Company Act. . . . . . . . . . . . . . . . .4
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Investment Company Event. . . . . . . . . . . . . . . .4
Legal Action. . . . . . . . . . . . . . . . . . . . . .5
List of Holders . . . . . . . . . . . . . . . . . . . .5
Majority in Liquidation Amount. . . . . . . . . . . . .5
Officers' Certificate . . . . . . . . . . . . . . . . .5
Paying Agent. . . . . . . . . . . . . . . . . . . . . .5
Payment Amount. . . . . . . . . . . . . . . . . . . . .5
Person. . . . . . . . . . . . . . . . . . . . . . . . .5
Property Account. . . . . . . . . . . . . . . . . . . .6
Property Trustee. . . . . . . . . . . . . . . . . . . .6
Pro Rata. . . . . . . . . . . . . . . . . . . . . . . .6
Quorum. . . . . . . . . . . . . . . . . . . . . . . . .6
Redemption Price. . . . . . . . . . . . . . . . . . . .6
Regular Trustee . . . . . . . . . . . . . . . . . . . .6
Regulatory Capital Event. . . . . . . . . . . . . . . .6
Related Party . . . . . . . . . . . . . . . . . . . . .6
Responsible Officer . . . . . . . . . . . . . . . . . .6
Rule 3a-5 . . . . . . . . . . . . . . . . . . . . . . .6
Securities. . . . . . . . . . . . . . . . . . . . . . .6
Securities Act. . . . . . . . . . . . . . . . . . . . .7
Special Event . . . . . . . . . . . . . . . . . . . . .7
Sponsor . . . . . . . . . . . . . . . . . . . . . . . .7
Successor Delaware Trustee. . . . . . . . . . . . . . .7
Successor Entity. . . . . . . . . . . . . . . . . . . .7
Successor Property Trustee. . . . . . . . . . . . . . .7
Successor Security. . . . . . . . . . . . . . . . . . .7
Super Majority. . . . . . . . . . . . . . . . . . . . .7
Tax Event . . . . . . . . . . . . . . . . . . . . . . .7
10% in Liquidation Amount . . . . . . . . . . . . . . .7
Treasury Regulations. . . . . . . . . . . . . . . . . .7
Trust Enforcement Event . . . . . . . . . . . . . . . .8
Trust Indenture Act . . . . . . . . . . . . . . . . . .8
Trustee" or "Trustees . . . . . . . . . . . . . . . . .8
Trustees' Authorization Certificate . . . . . . . . . .8
ARTICLE 2 - TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application. . . . . . . .8
Section 2.2 Lists of Holders of Securities. . . . . . . . .8
Section 2.3 Reports by the Property Trustee . . . . . . . .9
Section 2.4 Periodic Reports to the Property Trustee. . . .9
Section 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . .9
Section 2.6 Trust Enforcement Events; Waiver. . . . . . . .9
Section 2.7 Trust Enforcement Event; Notice . . . . . . . 11
ARTICLE 3 - ORGANIZATION
Section 3.1 Name and Organization . . . . . . . . . . . . 12
Section 3.2 Office. . . . . . . . . . . . . . . . . . . . 12
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Section 3.3 Purpose . . . . . . . . . . . . . . . . . . . 12
Section 3.4 Authority . . . . . . . . . . . . . . . . . . 12
Section 3.5 Title to Property of the Trust. . . . . . . . 13
Section 3.6 Powers and Duties of the Regular Trustees . . 13
Section 3.7 Prohibition of Actions by the Trust and the
Trustees . . . . . . . . . . . . . . . . . . 16
Section 3.8 Powers and Duties of the Property Trustee . . 17
Section 3.9 Certain Duties and Responsibilities of the
Property Trustee. . . . . . . . . . . . . . . 19
Section 3.10 Certain Rights of Property Trustee . . . . . 21
Section 3.11 Delaware Trustee . . . . . . . . . . . . . . 24
Section 3.12 Execution of Documents . . . . . . . . . . . 24
Section 3.13 Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . 23
Section 3.14 Duration of Trust. . . . . . . . . . . . . . 24
Section 3.15 Mergers. . . . . . . . . . . . . . . . . . . 24
Section 3.16 Property Trustee May File Proofs of Claim. . 26
ARTICLE 4 - SPONSOR
Section 4.1 Responsibilities of the Sponsor . . . . . . . 27
Section 4.2 Compensation, Indemnification and Expenses of
the Trustee . . . . . . . . . . . . . . . . . 27
ARTICLE 5 - TRUST COMMON SECURITIES HOLDER
Section 5.1 Debenture Issuer's Purchase of Common
Securities. . . . . . . . . . . . . . . . . . 28
Section 5.2 Covenants of the Common Securities Holder . . 28
ARTICLE 6 - TRUSTEES
Section 6.1 Number of Trustees. . . . . . . . . . . . . . 28
Section 6.2 Delaware Trustee. . . . . . . . . . . . . . . 29
Section 6.3 Property Trustee; Eligibility . . . . . . . . 29
Section 6.4 Qualifications of Regular Trustees and
Delaware Trustee Generally . . . . . . . . . 30
Section 6.5 Initial Regular Trustees. . . . . . . . . . . 30
Section 6.6 Appointment, Removal and Resignation of
Trustees. . . . . . . . . . . . . . . . . . . 30
Section 6.7 Vacancies among Trustees. . . . . . . . . . . 32
Section 6.8 Effect of Vacancies . . . . . . . . . . . . . 32
Section 6.9 Delegation of Power . . . . . . . . . . . . . 32
Section 6.10 Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . 32
ARTICLE 7 - THE SECURITIES
Section 7.1 General Provisions Regarding Securities . . . 33
Section 7.2 Distributions . . . . . . . . . . . . . . . . 35
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Section 7.3 Redemption of Securities. . . . . . . . . . . 35
Section 7.4 Redemption Procedures . . . . . . . . . . . . 36
Section 7.5 Voting Rights of Capital Securities . . . . . 38
Section 7.6 Voting Rights of Common Securities. . . . . . 40
Section 7.7 Paying Agent. . . . . . . . . . . . . . . . . 41
Section 7.8 Transfer of Securities. . . . . . . . . . . . 41
Section 7.9 Mutilated, Destroyed, Lost or Stolen
Certificates. . . . . . . . . . . . . . . . . 42
Section 7.10 Deemed Security Holders . . . . . . . . . . . 42
Section 7.11 Global Securities . . . . . . . . . . . . . . 42
ARTICLE 8 - DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust. . . . . 45
Section 8.2 Liquidation Distribution Upon Termination and
Dissolution of the Trust . . . . . . . . . . .46
ARTICLE 9 - LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability . . . . . . . . . . . . . . . . . . 46
Section 9.2 Exculpation . . . . . . . . . . . . . . . . . 47
Section 9.3 Fiduciary Duty. . . . . . . . . . . . . . . . 47
Section 9.4 Indemnification . . . . . . . . . . . . . . . 48
Section 9.5 Outside Businesses. . . . . . . . . . . . . . 50
ARTICLE 10 - ACCOUNTING
Section 10.1 Fiscal Year. . . . . . . . . . . . . . . . . 51
Section 10.2 Certain Accounting Matters . . . . . . . . . 51
Section 10.3 Banking. . . . . . . . . . . . . . . . . . . 51
Section 10.4 Withholding. . . . . . . . . . . . . . . . . 51
ARTICLE 11 - AMENDMENTS AND MEETINGS
Section 11.1 Amendments . . . . . . . . . . . . . . . . . 52
Section 11.2 Meetings of the Holders of Securities; Action
by Written Consent . . . . . . . . . . . . . 54
ARTICLE 12 - REPRESENTATIONS OF PROPERTY
TRUSTEE AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property
Trustee . . . . . . . . . . . . . . . . . . .56
Section 12.2 Representations and Warranties of the Delaware
Trustee . . . . . . . . . . . . . . . . . . .56
ARTICLE 13 - MISCELLANEOUS
Section 13.1 Notices. . . . . . . . . . . . . . . . . . . 57
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Section 13.2 Governing Law. . . . . . . . . . . . . . . . 58
Section 13.3 Intention of the Parties . . . . . . . . . . 58
Section 13.4 Headings . . . . . . . . . . . . . . . . . . 58
Section 13.5 Successors and Assigns . . . . . . . . . . . 58
Section 13.6 Partial Enforceability . . . . . . . . . . . 58
Section 13.7 Counterparts . . . . . . . . . . . . . . . . 58
Section 13.8 Undertaking for Costs. . . . . . . . . . . . 59
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AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated as of __________ among Old Kent Financial Corporation, a Michigan
corporation, as Sponsor, and________________, 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 [II, III, or IV] (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 ___________ (the
"Original Declaration") and a Certificate of Trust (the "Certificate of
Trust") filed with the Secretary of State of the State of Delaware on
___________; 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 issued by the Debenture Issuer and to engage in only those
activities necessary or incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the
Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(i) capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
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(ii) a term defined anywhere in this Declaration has the same
meaning throughout;
(iii) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to
time;
(iv) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless otherwise
specified;
(v) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(vi) a reference to the singular includes the plural and vice
versa and a reference to any masculine form of a term shall include the
feminine form of a term, as applicable.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means the Chairman of the Board,
a Vice Chairman of the Board, the Chief Executive Officer, the President, a
Vice President, the principal financial officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of such
Person.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York and Grand Rapids,
Michigan are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Property Trustee
is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Beneficial Owner" means, with respect to any
beneficial interest in a Global Security, ownership and transfers of which
shall be maintained and made through book entries by a Depositary, a Person
who is the beneficial owner of such beneficial interest, as reflected on
the books of the Depositary, or on the books of a Person maintaining an
account with such Depositary as a direct or indirect participant, in each
case in accordance with the rules of such Depositary.
"Capital Security Certificate" means a certificate representing a
Capital Security.
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"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 Trustee at which
at any particular time its corporate trust and agency services shall be
administered, which office at the date of this Declaration is located at
Four Albany Street, 4th Floor, New York, New York 10006, Attention:
Corporate Market Services.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of (A) the Trust or (B)
the Trust's Affiliates; and (ii) any Holder of Securities.
"Debenture Issuer" means Old Kent Financial Corporation in its
capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (i) any Regular
Trustee; (ii) any Affiliate of any Regular Trustee; (iii) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Regular Trustee or any Affiliate thereof; or (iv) any
officer, employee or agent of the Trust or its Affiliates.
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"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.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fiscal Year" has the meaning set forth in Section 10.1.
"Global Security" has the meaning set forth in Section 7.11.
"Guarantee" means the guarantee agreement of the Sponsor in
respect of the Capital Securities and the Common Securities.
"Holder" means a Person in whose name a Certificate representing
a Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite liquidation amount of Capital
Securities have voted on any matter provided for in this Declaration, then
for the purpose of such determination only (and not for any other purpose
hereunder), if the Capital Securities remain in the form of one or more
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.
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"Indemnified Person" means a Debenture Issuer Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of ________, 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.
"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 that the Debenture Issuer shall
have received an opinion of counsel (which may be counsel to the Debenture
Issuer) 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(g).
"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.
"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;
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(ii) a brief statement as to the nature and scope of the
examination and investigation upon which the statements and opinions
contained in such certificate or opinion are based;
(iii) 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
(iv) a statement as to whether, in the opinion of each such
officer and on behalf of such Person, such condition or covenant has been
complied with; PROVIDED, that the term "Officers' Certificate", when used
with reference to Regular Trustees who are natural persons shall mean a
certificate signed by two of the Regular Trustees which otherwise satisfies
the foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(a).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof or any other
entity of whatever nature.
"Property Account" has the meaning specified in Section
3.8(c)(i).
"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.
"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).
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Regulatory Capital Event" means that the Debenture Issuer shall
have received an opinion of counsel (which may be counsel to the Debenture
Issuer) 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 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 the President, any Principal Vice-President,
any Assistant Vice-President, any Managing Director, the Treasurer, any
Assistant Treasurer, 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.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event or
an Investment Company Event.
"Sponsor" means Old Kent Financial Corporation, a Michigan
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section
6.6(b).
"Successor Entity" has the meaning specified in Section
3.15(b)(i).
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"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 that the Debenture Issuer shall have received
an opinion of counsel (which may be counsel to the Debenture Issuer) 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 MINIMIS amount
of other taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the
context may require, Holders of outstanding Capital Securities or Holders
of outstanding Common Securities, voting separately as a class, who are the
record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the
relevant class.
"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.
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"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.
(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
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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; provided further that if and so long as the Property Trustee is
the Securities Registrar for the Securities, no Lists of Holders need be
furnished. 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),
312(b) and 312(c) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing in the year
of the first anniversary of the issuance of the Capital Securities), the
Property Trustee shall provide to the Holders of the Capital Securities
such reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act and an Officer's Certificate as to
its compliance with all conditions and covenants applicable to the Sponsor
and the Regular Trustees under this Declaration on an annual basis on or
before 120 days after the end of each fiscal year of the Sponsor.
Section 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) shall be given in the form of an
Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
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(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
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
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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, that each Holder of Common Securities will be deemed to
have waived any Trust Enforcement Event and all Trust Enforcement Events
with respect to the Common Securities and the consequences thereof until
all Trust Enforcement Events with respect to the Capital Securities have
been cured, waived or otherwise eliminated, and until such Trust
Enforcement Events with respect to the Capital Securities have been so
cured, waived or otherwise eliminated, the Property Trustee will be deemed
to be acting solely on behalf of the Holders of the Capital Securities and
only the Holders of the Capital Securities will have the right to direct
the Property Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.6(b) shall be in lieu of Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and
any Trust Enforcement Event with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
Trust Enforcement Event with respect to the Common Securities or impair any
right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Capital Securities
constitutes a waiver of the corresponding Trust Enforcement Event with
respect to the Capital Securities under this Declaration. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B)
of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of a Trust Enforcement Event, transmit by mail, first class
postage prepaid, to the Holders of the Securities, notices of all defaults
with respect to the Securities actually known to a Responsible Officer of
the Property Trustee, unless such defaults have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section
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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(a) and 501(b) of the Indenture;
or
(ii) any default as to which a Responsible Officer of the
Property Trustee charged with the administration of this
Declaration shall have actual knowledge or has received
written notice of such default in accordance with Section
13.1 hereof.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization.
The Trust hereby continued is named "Old Kent Capital Trust [II,
III or IV]" 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: Corporate Secretary, One Vandenberg
Center, 111 Lyon Street, N.W.,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
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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.
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(b), provided, that the
registration statements referred to in Section 3.6(b)(i), 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,
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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.
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:
(a) 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 one series of 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;
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) 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;
(ii) 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 Stock
Market for listing of any Capital Securities, the
Guarantee and the Debentures;
(iii) 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;
(iv) 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; and
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(v) execute and enter into an underwriting agreement and
other related agreements providing for the sale of the
Capital Securities.
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) 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;
(k) to incur expenses that are necessary or incidental to carry
out any of the
purposes of the Trust;
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(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) 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;
(n) 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;
(o) 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.
(p) 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
(q) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3 and subject to the limitations and
restrictions of applicable law, and the Regular Trustees shall have no
power to, and shall not, take any action that is inconsistent with the
purposes and functions of the Trust set forth in Section 3.3 or that is
inconsistent with or in contravention of any applicable law.
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Subject to this Section 3.6, the Regular Trustees shall have none
of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
Section 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular,
the Trust shall not and the Trustees (including the Property Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than the Debentures (and any
interest or proceeds received thereon) and the Guarantee
(and the proceeds received thereon or with respect thereto);
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets;
(vi) possess any power or otherwise act in such a way as to vary
the terms of the Securities in any way whatsoever (except to
the extent expressly authorized in this Declaration or by
the terms of the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other
than the Securities; or
(viii) other than as provided in this Declaration or by the terms
of the Securities, (A) direct the time, method and place of
conducting any proceeding for any remedy available to the
Debenture Trustee or exercising any trust or power conferred
upon the Property Trustee with respect to the Debentures,
(B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall
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be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the
Debentures where such consent shall be required unless, in
each case, the Trust shall have received (1) the prior
approval of the Majority in Liquidation Amount of the
Capital Securities; PROVIDED, HOWEVER, that where a consent
or action under the Indenture would require the consent or
act of the holders of more than a majority of the aggregate
liquidation amount of Debentures affected thereby, only the
Holders of the percentage of the aggregate stated
liquidation amount of the Capital Securities which is at
least equal to the percentage required under the Indenture
may direct the Property Trustee to give such consent to take
such action and (2) an opinion of counsel to the effect that
such modification will not cause more than an insubstantial
risk that (a) the Trust will be deemed an Investment Company
required to be registered under the Investment Company Act
or (b) the Trust will not be classified as other than a
grantor trust for U.S. federal income tax purposes; or
(ix) take any action inconsistent with the status of the Trust as
a grantor trust for U.S. federal income tax purposes; or
(x) revoke any action previously authorized or approved by a
vote of the Holders of the Capital Securities except
pursuant to a subsequent vote of the Holders of the Capital
Securities.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and interest
of the Property Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Property Trustee in accordance
with Section 6.6. Such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the Debentures have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(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
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receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such funds
into the Property Account and make payments to the Holders
of the Capital Securities and Holders of the Common
Securities from the Property Account in accordance with
Section 7.2. Funds in the Property Account shall be held
uninvested until disbursed in accordance with this
Declaration. The Property Account shall be an account that
is maintained with a banking institution the rating on whose
long-term unsecured indebtedness is at least equal to the
rating assigned to the Capital Securities by a "nationally
recognized statistical rating organization", as that term is
defined for purposes of Rule 436(g)(2) under the Securities
Act;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as so directed and as
shall be necessary or appropriate to effect the distribution
of the Debentures to Holders of Securities upon the
occurrence of a Special Event.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Declaration or the
Trust Indenture Act; provided, however, that if a Trust Enforcement Event
has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal (or premium,
if any) on the Debentures on the date such interest or principal (or
premium, if any) is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of (or premium, if any) or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
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
<PAGE>
in such Direct Action; provided, however, that no Holder of the Common
Securities may exercise any such right of subrogation so long as an Trust
Enforcement Event with respect to the Capital Securities has occurred and
is continuing. Except as provided in the preceding sentences, the Holders
of Capital Securities will not be able to exercise directly any other
remedy available to the Holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities;
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6; or
(iii) the Property Trustee has resigned in accordance with Section
6.6.
(g) Subject to such limitations as are necessary to insure
compliance with Section 3.3, the Property Trustee shall have the legal
power to exercise all of the rights, powers and privileges of a holder of
Debentures under the Indenture and, if a Trust Enforcement Event actually
known to a Responsible Officer of the Property Trustee occurs and is
continuing, the Property Trustee shall, for the benefit of Holders of the
Securities, enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities
and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. Any Paying Agent may be removed by the Property Trustee at
any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee. In the event the Capital
Securities do not remain in the form of one or more Global Securities, the
Property Trustee will act as Paying Agent and may designate an additional
or substitute Paying Agent at any time.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
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.
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Section 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after all Trust Enforcement Events that may have
occurred have been cured or waived, shall undertake to perform only such
duties as are specifically set forth in this Declaration and no implied
covenants shall be read into this Declaration against the Property Trustee.
In case a Trust Enforcement Event has occurred (that has not been cured or
waived pursuant to Section 2.6) of which a Responsible Officer of the
Property Trustee has actual knowledge, the Property Trustee shall exercise
such of the rights and powers vested in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except
that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement
Events that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of
this Declaration and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the
Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates
or opinions furnished to the Property Trustee and
conforming to the requirements of this Declaration; but
in the case of any such certificates or opinions that
by any provision hereof are specifically required to be
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
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judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it without
negligence, in good faith in accordance with the direction
of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that the repayment of such funds or liability is not assured
to it under the terms of this Declaration or indemnity
satisfactory to the Property Trustee against such risk or
liability is not assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the
Debentures and the Property Account shall be to deal with
such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to
the protections and limitations on liability afforded to the
Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree
with the Sponsor in writing. Money held by the Property
Trustee need not be segregated from other funds 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
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their respective duties under this Declaration, nor shall
the Property Trustee be liable for any default or misconduct
of the Regular Trustees or the Sponsor; and
(ix) the Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Debenture Issuer.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate (or, with respect to
the establishment of the terms and form of the Securities by
the Regular Trustees, by a Trustees' Authorization
Certificate);
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting
any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or
the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(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
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action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, such
counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to seek
instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holder,
unless such Holder shall have provided to the Property
Trustee security and indemnity, satisfactory to the Property
Trustee, against the costs, expenses (including attorneys'
fees and expenses and the expenses of the Property Trustee's
agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Property Trustee; PROVIDED that, nothing
contained in this Section 3.10(a) shall be taken to relieve
the Property Trustee, upon the occurrence of an Indenture
Event of Default, of its obligation to exercise the rights
and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees or attorneys and
the Property Trustee shall not be responsible for any
misconduct or negligence on the part 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
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conclusively evidenced by the Property Trustee's or its
agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Property Trustee
(A) may request instructions from the Holders of the
Securities, the Regular Trustees or the Sponsor which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would
be entitled to direct the Property Trustee under the terms
of the Securities in respect of such remedy, right or
action, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are
received and (C) shall be protected in conclusively relying
on or acting in accordance with such instructions;
(xi) if no Trust Enforcement Event has occurred and is continuing
and the Property Trustee is required to decide between
alternative causes of action, construe ambiguous provisions
in their Declaration or is unsure of the application of any
provision of their Declaration, and the matter is not one on
which Holders of Capital Securities are entitled under the
Declaration to vote, then the Property Trustee may, but
shall be under no duty to, take such action as is directed
by the Sponsor and will have no liability except for its own
bad faith, negligence or willful misconduct;
(xii) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions
of this Declaration;
(xiii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without
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
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it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a duty.
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 6.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described
in this Declaration. Except as set forth in Section 6.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Business Trust Act.
Section 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust
or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Declaration, the Securities, the Debentures
or the Indenture.
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
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Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or
lease its properties substantially as an entirety to a trust organized as
such under the laws of any State; PROVIDED that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Capital Securities other securities
having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital
Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of such Successor
Entity that possesses the same powers and duties as the
Property Trustee as the holder of the Debentures;
(iii) if the Capital Securities or any Successor Securities are
listed, any Successor Securities will be listed upon
notification of issuance, on any national securities
exchange or with any other organization on which the Capital
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
(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:
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(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders
of the Capital Securities (including any Successor
Securities) in any material respect;
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the
Trust nor the Successor Entity will be required to
register as an Investment Company; and
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Trust
(or the Successor Entity) will continue to be
classified as a grantor trust for U.S. federal income
tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all
of the Common Securities and guarantees the obligations of
such Successor Entity under the Successor Securities at
least to the extent provided by the Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation,
merger or replacement would cause the Trust or Successor Entity to be
classified as other than a grantor trust for U.S. federal income tax
purposes and each Holder of the Securities not to be treated as owning an
undivided interest in the Debentures.
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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(a) 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
(b) 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
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,
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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 Stock 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; and
(v) to negotiate the terms of and execute and deliver an
underwriting agreement and other related agreements providing for the sale
of the Capital Securities.
Section 4.2 Compensation, Indemnification and Expenses of the
Trustee.
Pursuant to Sections 607 and 1006 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
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.
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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 or
indirectly 100% ownership of the Common Securities, (ii) to use its
commercially reasonable efforts to ensure that the Trust remains a
statutory business trust and does not voluntarily dissolve, wind up,
liquidate or terminate, 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:
(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
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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 Trustee is a Regular
Trustee who 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
(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
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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 _______________________,
the business address of all of whom is c/o Old Kent Financial Corporation,
One Vandenberg Center, 111 Lyon Street, N.W., Grand Rapids, MI 49503.
Section 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be removed without
cause at any time, except if a Trust Enforcement Event has occurred and is
continuing, and may be appointed:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities
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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
6.3(a) (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
(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.
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(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
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
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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 "Capital Securities"), and a
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 $1,000.00 per Capital Security. The Capital
Security Certificates evidencing the Capital Securities
shall be substantially in the form of Exhibit A to the
Declaration (except that the Capital Security Certificate
shall not contain any of the provisions following the
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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 or trading organization on
which the Capital Securities may be listed.
(ii) Common Securities. The Common Securities of the Trust have
a liquidation amount with respect to the assets of the Trust
of $1,000.00 per Common Security. The Common Security
Certificates evidencing the Common Securities shall be
substantially in the form of Exhibit B to the Declaration,
with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or
practice.
(b) Payment of Distributions on, and payments of the Redemption
Price upon a redemption of, the Capital Securities and the Common
Securities, as applicable, shall be made Pro Rata based on the liquidation
amount of such Capital Securities and Common Securities; PROVIDED, HOWEVER,
that if on any date on which amounts payable on Distribution or redemption
an Indenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation
or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all
of the outstanding Capital Securities for all Distribution periods
terminating on or prior thereto, or in the case of amounts payable on
redemption the full amount of the Redemption Price for all of the
outstanding Capital Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or
payments of the Redemption Price upon a redemption of, the Capital
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
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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 7.1(a)(i).
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Certificates. An authenticating
agent may authenticate Certificates whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has
the same rights as the Property Trustee to deal with the Sponsor or an
Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(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) The Securities represent undivided beneficial interests in
the assets of the Trust, and Holders of Securities shall be entitled to
receive cumulative cash Distributions at the rate and on the dates that
payments of interest are made on the Debentures. The amount of
Distributions payable for any period less than a full distribution period
shall be computed on the basis of 360-day year consisting of twelve 30-day
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months and the actual number of days elapsed in a partial month in a
period. The amount of Distributions payable for any period less than a
full distribution period shall be computed by dividing the rate per annum
by [twelve] [four] [two]. 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 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 [monthly] [quarterly] [semi-annually] 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,
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, except to the extent (and in
the event) that the Debenture Issuer exercises its right to defer the
payment of interest on the Debentures pursuant to the Indenture, will be
payable [monthly] [quarterly] [semi-annually] in arrears on [_____________]
of each year, commencing _______ ___, 199__, when, as and if available
for payment, by the Property Trustee, except as otherwise described below.
If Distributions are not paid when scheduled, the accrued Distributions
shall be paid to the Holders of record of Securities as they appear on the
books and records of the Trust on the record date as determined under
Section 7.2(c).
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates, which relevant record date shall be [______________].
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
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Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed for an amount
equal to the redemption price paid by the Debenture Issuer in respect of
such Debentures plus an amount equal to accrued and unpaid Distributions
thereon through the date of the redemption or such lesser amount as shall
be received by the Trust in respect of the Debentures so repaid or redeemed
(the "Redemption Price"). Holders will be given not less than 30 or more
than 60 days notice of such redemption.
(b) If, at any time, a Special Event shall occur and be
continuing, the Sponsor may elect to, unless the Debentures are redeemed,
within 120 days following the occurrence of such Special Event, subject to
the receipt of any necessary approval by the Federal Reserve, cause the
dissolution of the Trust upon not less than 30 nor more than 60 days'
notice and, after satisfaction of creditors, if any, cause the Debentures
to be distributed to the holders of the Common Securities and the Capital
Securities in liquidation of the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Capital Securities and the Common
Securities will no longer be deemed to be outstanding and (ii) certificates
representing Securities will be deemed to represent the Debentures having
an aggregate principal amount equal to the stated liquidation amount of,
and bearing accrued and unpaid distributions equal to accrued and unpaid
distributions on, such Securities until such certificates are presented to
the Sponsor or its agent for transfer or reissuance.
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4, a
Redemption/Distribution Notice shall be deemed to be given on the day such
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,
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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
$1,000.00 or an integral multiple of $1,000.00 in excess thereof) of the
liquidation amount of Capital Securities of a denomination larger than
$1,000.00. The Property Trustee shall promptly notify the Trust registrar
in writing of the Capital Securities selected for redemption and, in the
case of any Capital Security selected for partial redemption, the
liquidation amount thereof to be redeemed. The Trust may not redeem the
Securities in part unless all accrued and unpaid Distributions have been
paid in full on all Securities then outstanding plus accrued but unpaid
interest to the date of redemption. For all purposes of this Declaration,
unless the context otherwise requires, all provisions relating to the
redemption of Capital Securities shall relate, in the case of any Capital
Security redeemed or to be redeemed only in part, to the portion of the
aggregate liquidation amount of Capital Securities which has been or is to
be redeemed.
(c) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 7.4 (which notice will
be irrevocable), then (i) by 12:00 noon, New York City time, one day prior
to the redemption date, the Property Trustee, upon receipt of such funds,
will deposit irrevocably with the DTC (in the case of book-entry form
Capital Securities) or its nominee (or successor Clearing Agency or its
nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Capital Securities and will give the DTC irrevocable
instructions and authority to pay the Redemption Price to the Holders of
the Capital Securities, and (ii) with respect to Capital Securities and
Common Securities issued in certificated form, the Trust, to the extent
funds are available, will irrevocably deposit with the paying agent for
such Securities funds sufficient to pay the applicable Redemption Price and
will give the paying agent irrevocable instructions and authority to pay
the Redemption Price to the holders thereof upon surrender of their
certificates evidencing such Securities. If a Redemption/Distribution
Notice shall have been given and funds deposited as required, then
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
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Business Day, in each case with the same force and effect as if made on
such date fixed for redemption. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to
the Guarantee, Distributions on such Securities will continue to accrue at
the then applicable rate from the original redemption date to the actual
date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption
Price. For these purposes, the applicable Redemption Price shall not
include Distributions which are being paid to Holders who were Holders on a
relevant record date. Upon satisfaction of the foregoing conditions, then
immediately prior to the close of business on the date of such deposit or
payment, all rights of Holders of such Debentures so called for redemption
will cease, except the right of the Holders to receive the Redemption
Price, but without interest on such Redemption Price, and from and after
the date fixed for redemption, such Debentures will not accrue
distributions or bear interest.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer or exchange of any
Securities that have been called for redemption, except in the case of any
Securities being redeemed in part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws), the Debenture Issuer or
its subsidiaries may at any time and from time to time purchase outstanding
Capital Securities by tender, in the open market or by private agreement.
Section 7.5 Voting Rights of Capital Securities.
(a) Except as provided under this Article 7 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
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stated liquidation amount of the Capital Securities which is at least equal
to the percentage required under the Indenture may direct the Property
Trustee to give such consent to take such action.
(c) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of record of Capital Securities has made a
written request, such Holder of record of Capital Securities may, to the
extent permitted by applicable law, institute a legal proceeding directly
against the Debenture Issuer to enforce the Property Trustee's rights under
the Indenture without first instituting any legal proceeding against the
Property Trustee or any other person or entity. Notwithstanding the
foregoing, if a Trust Enforcement Event has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to make
any required payment when due under the Indenture, then a Holder of Capital
Securities may directly institute a proceeding against the Debenture Issuer
for enforcement of such payment under the Indenture.
(d) The Property Trustee shall notify all Holders of the Capital
Securities of any notice of any Indenture Event of Default received from
the Debenture Issuer with respect to the Debentures. Such notice shall
state that such Indenture Event of Default also constitutes a Trust
Enforcement Event. Except with respect to directing the time, method, and
place of conducting a proceeding for a remedy, the Property Trustee shall
be under no obligation to take any of the actions described in clause
7.5(b)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that as a result of such
action, the Trust will not fail to be classified as a grantor trust for
U.S. federal income tax purposes and each Holder will be treated as owning
an undivided beneficial ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the
Holder of the Debentures, is required under the Indenture with respect to
any amendment or modification of the Indenture, the Property Trustee shall
request the direction of the Holders of the Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by a Majority in Liquidation Amount of the
Securities voting together as a single class; PROVIDED, HOWEVER, that where
a consent under the Indenture would require the consent of the Holders of
more than a majority in aggregate principal amount of the Debentures, the
Property Trustee may only give such consent at the direction of the Holders
of at least the same proportion in aggregate stated liquidation amount of
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.
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(f) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust
Enforcement Event.
(g) Any required approval or direction of Holders of Capital
Securities may be given at a separate meeting of Holders of Capital
Securities convened for such purpose, at a meeting of all of the Holders of
Securities or pursuant to written consent. The Regular Trustees will cause
a notice of any meeting at which Holders of Capital Securities are entitled
to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Capital
Securities. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which
such action is to be taken; (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or
of such matter upon which written consent is sought; and (iii) instructions
for the delivery of proxies or consents.
(h) No vote or consent of the Holders of Capital Securities will
be required for the Trust to redeem and cancel Capital Securities or
distribute Debentures in accordance with the Declaration.
(i) Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Securities that are owned at such time by the Debenture Issuer
or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Debenture Issuer, shall not be entitled
to vote or consent and shall, for purposes of such vote or consent, be
treated as if such Securities were not outstanding, PROVIDED, HOWEVER that
persons otherwise eligible to vote to whom the Debenture Issuer or any of
its subsidiaries have pledged Capital Securities may vote or consent with
respect to such pledged Capital Securities under any of the circumstances
described herein.
(j) Holders of the Capital Securities will have no rights to
appoint or remove the Trustees, who may be appointed, removed or replaced
solely by the Debenture Issuer, as the Holder of all of the Common
Securities.
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.
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(c) Subject to Section 2.6 of the Declaration and only after all
Trust Enforcement Events with respect to the Capital Securities have been
cured, waived, or otherwise eliminated and subject to the requirement of
the Property Trustee obtaining a tax opinion in certain circumstances set
forth in this paragraph (c), the Holders of a Majority in liquidation
amount of the Common Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee, or direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to
direct the Property Trustee, as Holder of the Debentures, to (i) exercise
the remedies available to it under the Indenture as a Holder of the
Debentures, or (ii) consent to any amendment or modification of the
Indenture or the Debentures where such consent shall be required; PROVIDED,
HOWEVER, that where a consent or action under the Indenture would require
the consent or act of the Holders of more than a majority in aggregate
principal amount of Debentures affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the Common
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under
no obligation to take any of the actions described in clause 7.6(c)(i) and
(ii) above unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action, for
U.S. federal income tax purposes the Trust will not fail to be classified
as a grantor trust and each Holder will be treated as owning an undivided
beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of record of Common Securities has made a
written request, such Holder of record of Common Securities may, to the
extent permitted by applicable law, directly institute a legal proceeding
directly against the Debenture Issuer, as sponsor of the Trust, to enforce
the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
person or entity.
(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
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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. The Property
Trustee 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.
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(c) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
the Trust shall execute, and the Property Trustee shall, upon a Company
Order for the authentication, authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Trust duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(e) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Trust may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities.
(f) The Trust shall not be required (i) to issue, register the
transfer of or exchange any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 7.4
and ending at the close of business on the day of such mailing or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate and
(ii) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them, the Sponsor and
the Trust harmless, then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, any Regular Trustee on
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.
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Section 7.10 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole
holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
Section 7.11 Global Securities.
If the Trust shall establish that the Capital Securities are to
be issued in the form of one or more Global Securities, then a Regular
Trustee on behalf of the Trust shall execute and the Property Trustee
shall, upon receipt of a Company Order for the authentication, authenticate
and deliver one or more Global Securities that (i) shall represent and
shall be denominated in an amount equal to the aggregate liquidation amount
of all of the Capital Securities to be issued in the form of Global
Securities and not yet canceled, (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."
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Definitive Capital Securities issued in exchange for all or a
part of a Global Security pursuant to this Section 7.11 shall be registered
in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such definitive Capital
Securities to the persons in whose names such definitive Capital Securities
are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or canceled, such Global Securities shall be, upon
receipt thereof, canceled by the Property Trustee in accordance with
standing procedures and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in
Global Securities is exchanged for definitive Capital Securities, redeemed,
canceled or transferred to a transferee who receives definitive Capital
Securities therefor or any definitive Capital Security is exchanged or
transferred for part of Global Securities, the principal amount of such
Global Securities shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be reduced
or increased, as the case may be, and an endorsement shall be made on such
Global Securities by the Property Trustee or the Custodian, at the
direction of the Property Trustee, to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes,
including the making of payments due on the Capital Securities, deal with
the Depositary as the authorized representative of the Holders for the
purposes of exercising the rights of Holders hereunder. The rights of the
owner of any beneficial interest in a Global Security shall be limited to
those established by law and agreements between such owners and depository
participants or Euroclear and Cedel; PROVIDED that no such agreement shall
give any rights to any person against the Trust or the Property Trustee
without the written consent of the parties so affected. Multiple requests
and directions from and votes of the Depositary as holder of Capital
Securities in global form with respect to any particular matter shall not
be deemed inconsistent to the extent they do not represent an amount of
Capital Securities in excess of those held in the name of the Depositary or
its nominee.
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
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and a Regular Trustee on behalf of the Trust shall execute and the Property
Trustee shall authenticate, upon a receipt of a Company Order for the
authentication, and deliver Capital Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount
equal to the principal amount of the Global Security or Capital Securities
representing such Capital Securities in exchange for such Global Security
or Capital Securities.
The Trust may at any time and in its sole discretion determine
that the Capital Securities issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Capital
Securities. In such event a Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, Capital
Securities in definitive registered form, in any authorized denominations,
in an aggregate liquidation amount equal to the principal amount of the
Global Security or Capital Securities representing such Capital Securities,
in exchange for such Global Security or Capital Securities.
Notwithstanding any other provisions of this Declaration, 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.
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 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.
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
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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;
(vi) the written direction to the Property Trustee from the
Sponsor to terminate the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by
applicable law, distribute Debentures to Holders in exchange
for the Securities; PROVIDED, HOWEVER that the Property
Trustee shall have first received (A) an opinion of counsel
to the Sponsor to the effect that such distribution will not
be a taxable event to the Holders, (B) any necessary
approvals by the Federal Reserve and (C) an Officers'
Certificate from the Sponsor that all conditions precedent
to such termination have been satisfied; or
(vii) 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.
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(a) In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a "Liquidation"),
the Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
holders of the Capital Securities and Common Securities their Pro Rata
interest in the Junior Subordinated Debentures, unless such distribution is
determined by the Property Trustee not to be practicable, in which event
such holders will be entitled to receive out of the assets of the Trust
available for distribution to holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to,
in the case of holders of Capital Securities, the aggregate of the
liquidation amount plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution").
(b) If, upon any such Liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis. The Holders of the Common Securities will be entitled to
receive distributions upon any such Liquidation Pro Rata with the Holders
of the Capital Securities except that if an Indenture Event of Default has
occurred and is continuing, the Capital Securities shall have a preference
over the Common Securities with regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(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.
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(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Capital Securities shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by
this Declaration or by law, except that an Indemnified Person shall be
liable or any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Securities
might properly be paid.
Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
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
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contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
Section 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
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
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Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Debenture
Issuer Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Debenture Issuer Indemnified
Person shall have been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall deem
proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Debenture Issuer Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Debenture Issuer Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
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
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disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion or (C) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Debenture
Issuer Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Debenture
Issuer Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in instances
where the Regular Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person deliberately breached his duty
to the Trust or its Common or Capital Security Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 9.4(a)
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
9.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Debenture Issuer Indemnified Person who serves in such
capacity at any time while this Section 9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall not affect any rights or
obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Debenture Issuer
Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
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
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benefit of the heirs, executors and administrators of such a person. The
obligation to indemnify as set forth in this Section 9.4(a) shall survive
the satisfaction and discharge of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) an Affiliate of the Property
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Property Trustee and the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in
this Section 9.4(a) shall survive the satisfaction and discharge of this
Declaration.
Section 9.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others,
similar or dissimilar to the activities of the Trust, and the Trust and the
Holders of Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with
the activities of the Trust, shall not be deemed wrongful or improper. No
Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee
shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or
other opportunity. Any Covered Person, the Delaware Trustee and the
Property Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
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.
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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.
(b) 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.
(c) 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.
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The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Trust to assist it in determining
the extent of, and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions and,
unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and
pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event
of any claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to be withheld
was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by
a written instrument approved and executed by (i) the Regular Trustees (or,
if there are more than two Regular Trustees, a majority of the Regular
Trustees) and (ii) by the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee;
and (iii) by the Delaware Trustee if the amendment affects the rights,
powers, duties, obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(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
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conforms to, the terms of this Declaration (including
the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than as a
grantor trust for U.S. federal income tax purposes;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment
Company Act.
(c) At such time after the Trust has issued any Securities that
remain outstanding, if amendment would (i) adversely affect the powers,
preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise or (ii) result in the
dissolution, winding-up or termination of the Trust other than pursuant to
the terms of this Declaration or, (iii) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of
any distribution required to be made in respect of the Securities as of a
specified date or (iv) restrict the right of a Holder of Securities to
institute suit for the enforcement of any such payment on or after such
date, then the Holders of the Securities voting together as a single class
will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of at least a
Majority in Liquidation Amount of the Securities affected thereby; PROVIDED
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.
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(f) The rights of the Holders of the Common Securities under
Article 6 to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a
Majority in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) to cure any ambiguity, correct or supplement any provisions
in this Declaration that may be inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under this Declaration that
shall not be inconsistent with the other provisions of this
Declaration;
(ii) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure
that the Trust will be classified as a grantor trust and
will not be taxable as a corporation for U.S. federal income
tax purposes at all times that any Securities are
outstanding or to ensure that the Trust will not be required
to register as an "investment company" under the Investment
Company Act; or
(iii) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the rights, preferences or privileges of the
Holders.
provided, however, that such action shall not adversely affect in any
material respect the interests of any Holder of Capital Securities or
Common Securities, and any amendments of this Declaration shall become
effective when notice thereof is given to the Holders of Capital Securities
and Common Securities.
(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 7.1 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
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the foregoing provision, each and every Holder of Capital Securities shall
be entitled to such relief as can be given either at law or equity.
Section 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of
the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange
on which the Capital Securities are listed or admitted for trading, if any.
The Regular Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of
such class of Securities. Such direction shall be given by delivering to
the Regular Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call
a meeting and only those Securities specified shall be counted for purposes
of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders
of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration
or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders
of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if
a consent in writing setting forth the action so taken is
signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Security Holders for the
purpose of taking any action without a meeting shall be
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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.
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
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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,
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).
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<PAGE>
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
111 Lyon Street, N.W.
Grand Rapids, MI 49503
Attention: Corporate Secretary
Facsimile: (616) 771- 5272
(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):
Bankers Trust (Delaware)
1011 Centre Road, Suite 200
Wilmington, Delaware 19805-1266
Attention: Lisa Wilkins
Facsimile: (302) 636-3222
(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
111 Lyon Street, N.W.
Grand Rapids, MI 49503
Attn: Corporate Secretary
Facsimile: (616) 771-5272
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<PAGE>
(e) if given to any Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed or mailed by first class mail,
postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
Section 13.2 Governing Law.
THIS DECLARATION AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS DECLARATION AND
THE SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE.
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
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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
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.
* * * * *
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IN WITNESS WHEREOF, the undersigned have caused these presents to
be executed as of the day and year first above written.
OLD KENT FINANCIAL CORPORATION,
as Sponsor and Common Securities Holder
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee
By:
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee
By:
Name:
Title:
_________________, as Regular Trustee
_________________, as Regular Trustee
_________________, as Regular Trustee
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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 [II,
III or IV] 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 [II, III OR IV]
[_____%] [FLOATING RATE] SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT [$_____] PER CAPITAL SECURITY)
OLD KENT CAPITAL TRUST [II, III or IV], 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 [$_____]
per Capital Security) (the "Capital Securities"). The Capital Securities
are transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in the Declaration (as defined
below). The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities represented hereby are
issued and shall in all respects be subject to the provisions of the
<PAGE>
Amended and Restated Declaration of Trust of the Trust, dated as of
_________ (as the same may be amended from time to time (the
"Declaration"), among Old Kent Financial Corporation, as Sponsor (the
"Company"),_____________, ____________ and _____________, 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. Capitalized terms
used but not defined herein have the meaning given to them in the
Declaration.
By acceptance, the Holder agrees to treat, for United States
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 _____________________.
OLD KENT CAPITAL TRUST [II, III or IV]
By:
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:
Authorized Officer
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<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. _ NUMBER OF COMMON SECURITIES: ______
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OLD KENT CAPITAL TRUST [II, III OR IV]
COMMON SECURITIES
(LIQUIDATION AMOUNT [$_____] PER COMMON SECURITY)
Old Kent Capital Trust [II, III or IV], 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 [$_____] 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
__________ (as the same may be amended from time to time, the
"Declaration"), among Old Kent Financial Corporation, as
Sponsor,_____________, ____________ and ____________, 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. 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. Capitalized terms
used but not defined herein shall have the meaning given them in the
Declaration.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership
interest in the Debentures.
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
___ day of ________.
OLD KENT CAPITAL TRUST [II, III or IV]
By:
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:
Authorized Officer
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<PAGE>
EXHIBIT B
FORM OF GUARANTEE AGREEMENT
<PAGE>
<PAGE>
- -----------------------------------------------------------------------------
GUARANTEE AGREEMENT
OLD KENT CAPITAL TRUST [II, III or IV]
Dated as of _______ __, _______
- -----------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE
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)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 - INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions . . . . . . . .1
ARTICLE 2 - TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . .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. . . . .5
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. . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 4 - GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustee. . . . . . . . . . . . . . . . . . 12
ARTICLE 5 - GUARANTEE
SECTION 5.1 Guarantee. . . . . . . . . . . . . . . . . . 13
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 - SUBORDINATION; RANKING
SECTION 6.1 Subordination. . . . . . . . . . . . . . . . 15
SECTION 6.2 Ranking. . . . . . . . . . . . . . . . . . . 16
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<PAGE>
ARTICLE 7 - TERMINATION
SECTION 7.1 Termination. . . . . . . . . . . . . . . . . 16
ARTICLE 8 - INDEMNIFICATION
SECTION 8.1 Exculpation. . . . . . . . . . . . . . . . . 16
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 ______
___, , is executed and delivered by Old Kent Financial
Corporation, a Michigan corporation (the "Guarantor"), and Bankers Trust
Company, a New York banking corporation, as indenture trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Securities (as defined herein) of Old Kent Capital
Trust [II, III or IV], a Delaware statutory business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the Declaration (as defined herein), the
Trust is issuing on the date hereof, and may in the future issue
additional, capital securities having a liquidation amount of $____________
per capital security and designated the Subordinated Capital Income
Securities, Series [II, III or IV] (the "Capital Securities"), and common
securities having a liquidation amount of $___________ per common security
and designated the Common Securities (the "Common Securities" and, together
with the Capital Securities, the "Securities");
WHEREAS, as incentive for the Holders to purchase the Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the
extent set forth in this Guarantee, to pay to the Holders of the Securities
the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the
benefit of the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. In this Guarantee,
unless the context otherwise requires:
(i) capitalized terms used in this Guarantee but not defined in
the preamble above have the respective meanings assigned to them in
this Section 1.1;
(ii) a term defined anywhere in this Guarantee has the same
meaning throughout;
(iii) all references to "the Guarantee" or "this Guarantee" are to
this Guarantee as modified, supplemented or amended from time to time;
<PAGE>
(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 it 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
________________________________________________, Attention:
_________________.
"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 [____%] [Variable Rate]
Junior Subordinated Debentures, Series [II, III or IV], 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 _______ __, 199_, 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; PROVIDED,
HOWEVER, that except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not
have cured the default within 60 days after receipt of the notice.
"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.
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"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 the Securities to the extent the Trust shall have sufficient funds
available therefor at the time, (ii) the Redemption Price (as defined in
the Declaration), 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 or (B) the amount of
assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust (in either case, the "Liquidation Distribution").
If a Trust Enforcement Event (as defined in the Declaration) has occurred
and is continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under this Guarantee are subordinated to the
rights of Holders of the Capital Securities to receive payments hereunder.
"Holder" shall mean any holder of Securities, as registered on
the books and records of the Trust; PROVIDED, HOWEVER, that, in determining
whether the Holders of the requisite percentage of Capital Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor or any other
obligor on the Capital Securities; and PROVIDED FURTHER, that in
determining whether the Holders of the requisite liquidation amount of
Capital Securities have voted on any matter provided for in this Guarantee,
then for the purpose of such determination only (and not for any other
purpose hereunder), if the Capital Securities remain in the form of one or
more Global Certificates (as defined in the Declaration), the term
"Holders" shall mean the holder of the Global Certificate acting at the
direction of the beneficial holders of the Securities.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or
agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of ________ __, _____,
among the Guarantor and Bankers Trust Company, as trustee, and any
indenture supplemental thereto pursuant to which the Debentures are to be
issued to the Property Trustee 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
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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 brief statement as to the nature and scope of the
examination and investigation upon which the statements and opinions
contained in such certificate or opinion are based;
(iii) 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
(iv) 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 the President, any Principal Vice President, any
Assistant Vice President, any Managing Director, 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.
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"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 (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, in each case as of a date no more than 15 days before the List of
Holders is given to the Guarantee Trustee; provided, however, that if and so
long as the Guarantee Trustee is the Securities Registrar for the Securities,
no such lists need be furnished with respect to the Securities. 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
December 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.
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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 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.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Guarantee that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) shall be given in the form of
an Officers' Certificate.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of
a Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any
such Guarantee Event of Default shall cease to exist, and any Guarantee
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any
right consequent thereon.
SECTION 2.7 GUARANTEE EVENT OF DEFAULT; NOTICE. (a) The
Guarantee Trustee shall, within 90 days after the occurrence of a Guarantee
Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all Guarantee Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; PROVIDED,
that the Guarantee Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Guarantee Trustee shall have
received written notice thereof or a Responsible Officer of the Guarantee
Trustee charged with the administration of this Guarantee 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
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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.
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
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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
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 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
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(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,
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;
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(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,
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 may (but shall have no obligation to) 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.
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(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.
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
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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) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and
delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint 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 Extension Period (as defined in the Indenture) with
respect to the Distributions 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 of the following:
(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, Liquidation
Distribution or any other sums payable under 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,
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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 Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on 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.
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.
(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. 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.
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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.
ARTICLE 6
SUBORDINATION; RANKING
SECTION 6.1 SUBORDINATION.
The obligations of the Guarantor under this Guarantee will
constitute unsecured obligations of the Guarantor and will rank subordinate
and junior in right of payment to all Indebtedness (as defined in the
Indenture) to the extent and in the manner set forth in the Indenture. The
obligations of the Guarantor under this Guarantee do not constitute
Indebtedness.
SECTION 6.2 RANKING.
The obligations of the Guarantor under this Guarantee will rank
PARI PASSU with the obligations of the Guarantor (i) under any similar
guarantee made by the Guarantor on behalf of holders of securities issued
by any other trust under the Indenture, (ii) under the Guarantee Agreement
dated as of January 31, 1997 between the Guarantor and Bankers Trust
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<PAGE>
Company concerning securities issued by Old Kent Capital Trust I, or
(iii) made PARI PASSU 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.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate upon (i) full payment of the
Redemption Price 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
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<PAGE>
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
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 or the
earlier resignation or termination of the Guarantee Trustee.
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). The Guarantor's
obligations under this Section 8.3 shall survive the termination of this
Guarantee or the earlier resignation or termination of the Guarantee
Trustee.
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
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<PAGE>
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 11.2 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:
(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
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Corporate Market Services
Fax: (212) 250-6392
(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
111 Lyon Street, N.W.
Grand Rapids, MI 49503
Attn: Corporate Secretary
Fax: (616) 771-5272
(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.
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<PAGE>
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 (WITHOUT
REGARD TO ITS CONFLICT OF LAW PROVISIONS).
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<PAGE>
This Guarantee is executed as of the day and year first written
above.
OLD KENT FINANCIAL CORPORATION,
as Guarantor
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
By:
Name:
Title:
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<PAGE>
EXHIBIT C
OLD KENT FINANCIAL CORPORATION
Junior Subordinated Debenture Series ____ due ____
$___________
No. __
CUSIP No. ___________
OLD KENT FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to Bankers Trust Company, as Trustee, or registered assigns, the
principal sum of ____________________ Dollars ($________) on ______ __,
_____ [; provided that the Company may (i) shorten the Stated Maturity of
the principal of this Security to a date not earlier than ________, and
(ii) extend the Stated Maturity of the principal of this Security at any
time on one or more occasions, subject to certain conditions specified in
Section 316 of the Indenture, but in no event to a date later than
____________]. The Company further promises to pay interest on said
principal sum from _______ __, _____ 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, [monthly] [quarterly] [semi-annually]
[if applicable, insert -- (subject to deferral as set forth herein)] in
arrears on [insert applicable Interest Payment Dates] of each year,
commencing _______ __, _____, at a [variable] per annum rate equal to
______________, until the principal hereof shall have become due and
payable, and on any overdue principal [if applicable, insert --- 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, compounded [monthly] [quarterly] [semi-annually].
The amount of interest payable for any period less than a full
interest period shall be computed on the basis of twelve 30-day months and
a 360-day year and the actual number of days elapsed in a partial month in
a period. The amount of interest payable for any full interest period
shall be computed by dividing the rate per annum by [twelve] [four] [two].
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
<PAGE>
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 [insert definition of
Regular Record 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 the Indenture.
[If applicable, insert --- The Company shall have the right at
any time during the term of this Security, from time to time and so long as
no Event of Default has occurred or is continuing, to defer payment of
interest on this Security for up to [insert number] consecutive [monthly]
[quarterly] [semi-annual] interest payment periods (each, an "Extension
Period"). There may be multiple Extension Periods of varying lengths
during the term of this Security. During any Extension Period the Company
shall have the right to make partial payments of interest on any Interest
Payment Date. At the end of each Extension Period, if any, the Company
shall pay all interest then accrued and unpaid, together with Additional
Interest thereon, compounded [monthly] [quarterly] [semi-annually] 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 this Security 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 this Security (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)
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<PAGE>
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 interest payment period, PROVIDED that no Extension Period may extend
beyond the Stated Maturity of the principal of this Security. 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.
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<PAGE>
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.
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated: ________, __
OLD KENT FINANCIAL CORPORATION
By
Name:
Title:
Attest:
By
Name:
Title: [Secretary][Assistant Secretary]
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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") (herein called the
"Securities"), issued and to be issued under an Indenture, dated as of
_______ __, ____ (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. This Security
is one of the series designated on the face hereof [, limited in aggregate
principal amount to $______].
All terms used in this Security that are defined in the Indenture
or in the Amended and Restated Declaration of Trust, dated as of _______
__, _____ (the "Declaration"), for Old Kent Capital Trust [II, III or IV,]
among the Company, as Sponsor, and the Trustees named therein, shall have
the meanings assigned to them in the Indenture or the Declaration, as the
case may be.
[If applicable, insert --- At any time on or after _______ __,
____, 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 or in part, at a
Redemption Price equal to the principal amount so redeemed plus accrued but
unpaid interest to the Redemption Date.]
[If applicable, insert --- At any time on or after _______ __,
_____, 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 the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed
during the 12-month period beginning _______ __, _____,
Redemption
YEAR PRICE
and at 100% on or after _________ ___, _____, together in the case of any
such redemption with accrued interest to but excluding the Redemption
Date.]
<PAGE>
[If applicable, insert --- If a Special Event as defined in the
Indenture shall occur and be continuing, the Company shall have the right,
subject to receipt of any necessary prior approval of the Board of
Governors of the Federal Reserve System and 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 [describe formulation].]
[If applicable, insert --- Any redemption provided above 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.
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 no such modification may,
without the consent of the Holder of each Outstanding Security of each
series to be 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), (ii)
reduce the percentage in principal amount of the Outstanding Securities of
any series, 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 1005 of
the Indenture, except to increase any such percentage or to provide that
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<PAGE>
certain other provisions of the Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security of each
series affected thereby, PROVIDED that, with respect to the Securities of
any series, so long as any of the corresponding series of Capital
Securities remains outstanding, no such amendment shall be made that
adversely affects the holders of such 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 such Capital Securities then
outstanding 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,
premium, if any, and interest (including any Additional 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 maintained under Section
1002 of the Indenture, 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 this
series, 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 $1,000.00 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.
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<PAGE>
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree that for United States Federal,
state and local tax purposes it is intended that this Security constitute
indebtedness.
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>
EXHIBIT 4(d)
FIRST SUPPLEMENTAL INDENTURE
between
OLD KENT FINANCIAL CORPORATION
and
BANKERS TRUST COMPANY
Dated as of _______________, _____
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE - DEFINITIONS
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . 3
ARTICLE TWO - GENERAL TERMS AND
CONDITIONS OF THE DEBENTURES
SECTION 201. Designation and Principal Amount . . . . . . . . 4
SECTION 202. Maturity . . . . . . . . . . . . . . . . . . . . 5
SECTION 203. Form and Payment . . . . . . . . . . . . . . . . 6
SECTION 204. Interest . . . . . . . . . . . . . . . . . . . . 6
ARTICLE THREE - REDEMPTION OF THE DEBENTURES
SECTION 301. Special Event Redemption . . . . . . . . . . . . 7
SECTION 302. Optional Redemption by Company . . . . . . . . . 7
SECTION 303. No Sinking Fund. . . . . . . . . . . . . . . . . 8
ARTICLE FOUR - EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 401. Extension of Interest Payment Period . . . . . . 8
SECTION 402. Notice of Extension. . . . . . . . . . . . . . . 8
ARTICLE FIVE - FORM OF DEBENTURE
SECTION 501. Form of Debenture. . . . . . . . . . . . . . . . 9
ARTICLE SIX - ORIGINAL ISSUE OF DEBENTURES
SECTION 601. Original Issue of Debentures . . . . . . . . . . 9
ARTICLE SEVEN - MISCELLANEOUS
SECTION 701. Ratification of Indenture. . . . . . . . . . . . 9
SECTION 702. Trustee Not Responsible for Recitals . . . . . .10
SECTION 703. Governing Law . . . . . . . . . . . . . . . . .10
SECTION 704. Separability . . . . . . . . . . . . . . . . . .10
SECTION 705. Counterparts . . . . . . . . . . . . . . . . . .10
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE is made as of ____________,
199__ (the "First Supplemental Indenture"), between Old Kent Financial
Corporation, a Michigan corporation (the "Company"), and Bankers Trust
Company, a New York banking corporation, as indenture trustee (the
"Trustee"), under the Indenture dated as of ______________, 199__ between
the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
junior subordinated debt securities to be issued from time to time in one
or more series as determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and
delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities
to be known as its [____%] [Variable Rate] Junior Subordinated Deferrable
Interest Debentures Series II due _________ ___, _____ (the "Debentures"),
the form and substance of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this
First Supplemental Indenture;
WHEREAS, Old Kent Capital Trust II, a Delaware statutory business
trust (the "Trust"), has offered to the public $_____ million aggregate
liquidation amount of its [____%] [Variable Rate] Subordinated Capital
Income Securities Series II (the "Capital Securities"), representing
undivided preferred beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $_____
million aggregate liquidation amount of its [____%] [Variable Rate] Common
Securities, in $_____ million aggregate principal amount of the Debentures;
and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture pursuant to Sections 301 and 901
of the Indenture and all requirements necessary to make this First
Supplemental Indenture a valid instrument in accordance with its terms, and
to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental
Indenture have been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the Holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS
SECTION 101. Definitions.
For all purposes of this First Supplemental Indenture, except as
expressly provided or unless the context otherwise requires:
(a) 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;
(b) all other terms used in this First Supplemental Indenture
that are defined in the Indenture, either directly or by reference
therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean the accounting principles that are generally
accepted at the date or time of such computation; PROVIDED, that when
two or more principles are so generally accepted, it shall mean that
set of principles consistent with those in use by the Company;
(d) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this First Supplemental Indenture as a
whole and not to any particular Article, Section or other subdivision;
(e) a reference to any Person shall include its successor and
assigns;
(f) 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;
(g) 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;
(h) 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;
(i) the following terms have the meanings given to them in this
Section 101(i):
"Additional Sums" shall have the meaning set forth in Section
204(c).
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"Compounded Interest" shall have the meaning set forth in Section
401.
"Coupon Rate" shall have the meaning set forth in Section 204(a).
"Declaration" means the Amended and Restated Declaration of Trust
of Old Kent Capital Trust II, a Delaware statutory business trust, dated as
of ________________, 199__.
"Deferred Interest" shall have the meaning set forth in Section
401.
"Extension Conditions" shall mean the following conditions: (i)
the Company is not in bankruptcy, otherwise insolvent or in liquidation;
(ii) the Company is not in default in the payment of any interest or
principal on the Debentures; (iii) the Trust is not in arrears on payments
of distributions on the Capital Securities and no deferred Distributions
are accumulated; and (iv) the Debentures are rated not less than BBB- by
Standard & Poor's Ratings Service, or Baa3 by Moody's Investors Service,
Inc., or not less than the equivalent by any other nationally recognized
statistical rating organization.
"Interest Payment Date" shall have the meaning set forth in
Section 204(a).
"Maturity Date" shall have the meaning set forth in Section
202(a).
"Preceding Maturity Date" shall have the meaning set forth in
Section 202(c).
"Redemption Price" shall mean, with respect to any redemption of
the Debentures pursuant to Article Three hereof, an amount in cash equal to
100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest and Additional Sums, if
any, to the date of redemption.
"Scheduled Maturity Date" shall mean ________, ____.
"Trust Securities" shall mean the Capital Securities and the
Common Securities, collectively.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 201. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the
"____% [Variable Rate] Junior Subordinated Deferrable Interest Debentures
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Series II due _______________, ____ ", limited in aggregate principal
amount to $_________, which amount shall be as set forth in any written
order of the Company for the authentication and delivery of Debentures
pursuant to Section 303 of the Indenture.
SECTION 202. Maturity.
(a) The Maturity Date (which shall constitute the Stated
Maturity of the Debentures for purposes of the Indenture) shall be the
date on which the Debentures mature and on which the principal thereof
shall be due and payable together with all accrued and unpaid interest
thereon (including Compounded Interest and Additional Sums, if any),
which date shall be the Scheduled Maturity Date unless the Maturity
Date has been changed pursuant to this Section 202, in which case the
Maturity Date shall be the Maturity Date most recently established in
accordance with this Section 202.
(b) The Company may at any time elect to change the Maturity
Date to a date earlier than the Scheduled Maturity Date, but in no
event to a date earlier than __________, ____, subject to obtaining
any necessary prior approval of the Federal Reserve, and such change
in the Maturity Date shall be effective on the date specified in the
notice thereof given in accordance with Section 202(d).
(c) The Company may at any time before the date which is 90 days
before the Maturity Date, elect to extend the Maturity Date for one or
more periods, but in no event to a date later than ____________, ____,
if as of the date such election is made and the time that the
extension begins the Extension Conditions are satisfied. Such
election shall be made, and such extension of the Maturity Date shall
be effective, on the date specified in the notice thereof given in
accordance with Section 202(d); PROVIDED that if the Extension
Conditions are not also satisfied on the Maturity Date in effect prior
to such extension (the "Preceding Maturity Date"), then on the
Preceding Maturity Date, the Maturity Date shall be automatically
changed, without any action on the part of the Company, the Trustee or
any other Person, to be the Preceding Maturity Date.
(d) If the Company elects to change the Maturity Date pursuant
to Section 202(b) or (c), the Company shall give prompt written notice
thereof to the Trustee, and the Trustee shall give written notice of
the change in the Maturity Date to the Holders of the Debentures no
less than 30 days and no more than 90 days prior to the effectiveness
thereof. The Company shall deliver to the Trustee together with the
foregoing notices and, in the case of an extension of the Maturity
Date, on the Preceding Maturity Date, an Officers' Certificate to the
effect that the conditions to the foregoing changes to the Maturity
Date have been satisfied as of the date of such Officers' Certificate.
Notice of any election pursuant to Section 202(b) shall be given by
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the Company to the Trustee no earlier than 45 days prior to
effectiveness of the change to the Maturity Date.
SECTION 203. Form and Payment.
Except as provided in Section 204, the Debentures shall be issued
in fully registered certificated form without interest coupons in minimum
denominations of $_____ and in integral multiples thereof. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of the Debentures will be registrable and the Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the
office or agency of the Company as set forth in Section 1002 of the
Indenture; PROVIDED, HOWEVER, that payment of interest may be made, at the
option of the Company, by check mailed to the Holder at such address as
shall appear in the Security Register or by wire transfer to an account
designated by a Holder in writing not less than fifteen days prior to the
due date of payment. The Company selects each of The City of New York, New
York and The City of Grand Rapids, Michigan as a place of payment for the
Debentures and hereby appoints Trustee as Securities Registrar for the
Debentures. Notwithstanding the foregoing, so long as the Holder of any
Debentures is the Property Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Sums, if any) on
such Debentures held by the Property Trustee will be made at such place and
to such account as may be designated by the Property Trustee.
SECTION 204. Interest.
(a) Each Debenture will bear interest at a [variable] annual
rate equal to _____ (the "Coupon Rate") from ______________ until the
principal thereof becomes due and payable, and on any overdue
principal at the Coupon Rate and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article Four) quarterly in
arrears on [March 31, June 30, September 30 and December 31] of each
year (each, an "Interest Payment Date"), commencing ______________,
____, to the Person in whose name such Debenture or any predecessor
Debenture is registered at the close of business on the Regular Record
Date for such interest installment, which, in respect of any
Debentures of which the Property Trustee is the Holder or in respect
of a Global Debenture, shall be the close of business on the Business
Day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if the Debentures are no longer in book-entry only
form, unless the Debentures are held by the Property Trustee, the
Regular Record Date shall be the fifteenth day preceding the relevant
Interest Payment Date (whether or not a Business Day).
(b) The amount of interest payable for any period less than a
full interest period will be computed on the basis of a 360-day year
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of twelve 30-day months and the actual days elapsed in a partial month
in a period. The amount of any interest payable for any full interest
period will be computed by dividing the per annum rate by four. In
the event that any date on which interest is payable on the Debentures
is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar
year, such payment shall 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 due.
(c) If a Tax Event has occurred and is continuing while the
Property Trustee is the Holder of any Debentures, and the Trust or the
Property Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other taxing authority, then, in
any case, the Company will pay any additional sums ("Additional Sums")
on the Debentures held by the Property Trustee necessary so that the
net amounts received and retained by the Trust and the Property
Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had the Trust and the Property
Trustee not been subject to such taxes, duties, assessments or other
government charges as a result of the Tax Event.
ARTICLE THREE
REDEMPTION OF THE DEBENTURES
SECTION 301. Special Event Redemption.
If a Special Event has occurred and is continuing then,
notwithstanding Section 302(a) but subject to Section 302(b) and the
provisions of Article Twelve of the Indenture, the Company shall have the
right upon not less than 30 days nor more than 60 days notice to the
Holders of the Debentures to redeem the Debentures, in whole, but not in
part, for cash within 120 days following the occurrence of the Special
Event at the Redemption Price.
SECTION 302. Optional Redemption by Company.
(a) Subject to the provisions of Section 302(b) and to the
provisions of Article Twelve of the Indenture, except as otherwise may
be specified in this First Supplemental Indenture, the Company shall
have the right to redeem the Debentures, in whole or in part, from
time to time, on or after _______ ___, ____, at the Redemption Price.
Any redemption pursuant to this paragraph will be made upon not less
than 30 days nor more than 60 days notice to the Holders of the
Debentures.
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(b) Any redemption of Debentures pursuant to Section 301 or
Section 302(a) shall be subject to the Company obtaining the prior
approval of the Federal Reserve, if such approval is then required
under applicable law or capital guidelines of the Federal Reserve.
SECTION 303. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE FOUR
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 401. Extension of Interest Payment Period.
Subject to Section 310 of the Indenture, the Company shall have
the right, at any time and from time to time during the term of the
Debentures, to defer payments of interest by extending the interest payment
period of the Debentures for an Extension Period not exceeding 20
consecutive quarters, during which Extension Period no interest shall be
due and payable; PROVIDED that no Extension Period may end on a date other
than an Interest Payment Date or extend beyond the Maturity Date. To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant
to this Section 401, will bear interest thereon at a rate equal to the
Coupon Rate, compounded quarterly for each quarter of the Extension Period
("Compounded Interest"). At the end of the Extension Period, the Company
shall pay all interest accrued and unpaid on the Debentures, including any
Additional Sums and Compounded Interest (together, "Deferred Interest")
that shall be payable to the Holders of the Debentures in whose names the
Debentures are registered in the Security Register on the Regular Record
Date relating to the Interest Payment Date in which the Extension Period
ends. Before the termination of any Extension Period, the Company may
further defer payments of interest by further extending such period,
PROVIDED that such period, together with all such further extensions
thereof, shall not exceed 20 consecutive quarters, or extend beyond the
Maturity Date of the Debentures. Upon the termination of any Extension
Period and the payment of all Deferred Interest then due, the Company may
commence a new Extension Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extension Period, except at the
end thereof.
SECTION 402. Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extension Period, the
Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extension
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<PAGE>
Period at least two Business Days before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities issued
by the Trust are payable, or (ii) the date the Trust is required to
give notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Capital Securities
issued by the Trust, but in any event at least one Business Day before
such record date.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the
Company shall give the Holders of the Debentures and the Trustee
written notice of its selection of the Extension Period at least 10
Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to the New York
Stock Exchange or other applicable self-regulatory organization or to
Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 402 shall be counted as one of
the 20 quarters permitted in the maximum Extension Period permitted
under Section 401.
ARTICLE FIVE
FORM OF DEBENTURE
SECTION 501. Form of Debenture.
The Debentures and the Trustee's certificate of authentication to
be endorsed thereon are to be in substantially the form attached hereto as
Exhibit A.
ARTICLE SIX
ORIGINAL ISSUE OF DEBENTURES
SECTION 601. Original Issue of Debentures.
Debentures in the aggregate principal amount of $_____________
may, upon execution of this First Supplemental Indenture, be executed by
the Company and delivered to the Trustee for authentication as provided in
Sections 301 and 303 of the Indenture.
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<PAGE>
ARTICLE SEVEN
MISCELLANEOUS
SECTION 701. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 702. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 703. Governing Law.
This First Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New
York without regard to its conflict of laws principles.
SECTION 704. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 705. Counterparts.
This First Supplemental Indenture may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument.
SECTION 706. Trustee's Rights.
The rights and privileges afforded to the Trustee under Article
Six of the Indenture shall apply to this First Supplemental Indenture as if
fully set forth herein.
* * * * *
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<PAGE>
The parties hereto have caused this First Supplemental Indenture
to be duly executed as of the day and year first written above.
OLD KENT FINANCIAL CORPORATION
By
Name:
Title:
BANKERS TRUST COMPANY,
as Trustee
By
Name:
Title:
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<PAGE>
EXHIBIT A
OLD KENT FINANCIAL CORPORATION
Junior Subordinated Debenture Series II due ____
$___________
No. __
CUSIP No. ___________
OLD KENT FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to ________________, as Trustee, or registered assigns, the principal
sum of ____________________ Dollars ($________) on ______ __, _____;
PROVIDED that the Company may (i) shorten the Stated Maturity of the
principal of this Security to a date not earlier than ______ __, ____ and
(ii) extend the Stated Maturity of the principal of this Security at any
time on one or more occasions, subject to certain conditions specified in
Section 316 of the Indenture, but in no event to a date later than ______
__, ____. The Company further promises to pay interest on said principal
sum from _______ __, _____ or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on [March 31, June 30, September 30 and December 31] of
each year, commencing _______ __, _____, at a [variable] per annum rate
equal to ________________________, until the principal hereof shall have
become due and payable, 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, compounded quarterly. The amount of interest payable for
any period less than a full interest period shall be computed on the basis
of twelve 30-day months and a 360-day year and the actual number of days
elapsed in a partial month in a period. The amount of interest payable for
any full interest period shall be computed by dividing the rate per annum
by four. 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
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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, if the Holder of this Security
is the Property Trustee or if this Security is a Global Security, shall be
the close of business on the Business Day next preceding that Interest
Payment Date; PROVIDED, HOWEVER, that if this Security is not held in book-entry
only form, unless the Holder of this Security is the Property
Trustee, the Regular Record Date shall be the fifteenth day preceding the
relevant Interest Payment Date (whether or not a Business Day). 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
the Indenture.
The Company shall have the right at any time during the term of
this Security, from time to time and so long as no Event of Default has
occurred or is continuing, to defer payment of interest on this Security
for up to 20 consecutive quarterly interest payment periods (each, an
"Extension Period"). There may be multiple Extension Periods of varying
lengths during the term of this Security. During any Extension Period the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together with
Additional 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 this Security 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 this
Security (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
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<PAGE>
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 interest payment
period, PROVIDED that no Extension Period may extend beyond the Stated
Maturity of the principal of this Security. 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.
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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.
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated: ________ ___, _______
OLD KENT FINANCIAL CORPORATION
By
Name:
Title:
Attest:
By
Name:
Title: [Secretary] [Assistant Secretary]
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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") (herein called the
"Securities"), issued and to be issued under an Indenture, dated as of
_______ __, ____ (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. This Security
is one of the series designated on the face hereof limited in aggregate
principal amount to $______.
All terms used in this Security that are defined in the Indenture
or in the Amended and Restated Declaration of Trust, dated as of _______
__, _____ (the "Declaration"), for Old Kent Capital Trust II, among the
Company, as Sponsor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or the Declaration, as the case
may be.
At any time on or after _______ __, ____, 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 or in part, at a Redemption Price equal to the
principal amount so redeemed plus accrued but unpaid interest to the
Redemption Date.
If a Special Event as defined in the Indenture shall occur and be
continuing, the Company shall have the right, subject to receipt of any
necessary prior approval of the Board of Governors of the Federal Reserve
System and 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 the
principal amount so redeemed plus accrued but unpaid interest to the
Redemption Date.
Any redemption provided above 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
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<PAGE>
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.
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 no such modification may,
without the consent of the Holder of each Outstanding Security of each
series to be 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), (ii)
reduce the percentage in principal amount of the Outstanding Securities of
any series, 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 1005 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 of each
series affected thereby, PROVIDED that, with respect to the Securities of
any series, so long as any of the corresponding series of Capital
Securities remains outstanding, no such amendment shall be made that
adversely affects the holders of such 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 such Capital Securities then
outstanding 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,
premium, if any, and interest (including any Additional Interest) on this
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<PAGE>
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 maintained under Section
1002 of the Indenture, 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 this
series, 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 $1,000.00 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 Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree that for United States Federal,
state and local tax purposes it is intended that this Security constitute
indebtedness.
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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EXHIBIT 4(g)
- -----------------------------------------------------------------------------
GUARANTEE AGREEMENT
OLD KENT CAPITAL TRUST [II, III or IV]
Dated as of _______ __, _______
- -----------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE
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)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 - INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions . . . . . . . .1
ARTICLE 2 - TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . .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. . . . .5
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. . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 4 - GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustee. . . . . . . . . . . . . . . . . . 12
ARTICLE 5 - GUARANTEE
SECTION 5.1 Guarantee. . . . . . . . . . . . . . . . . . 13
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 - SUBORDINATION; RANKING
SECTION 6.1 Subordination. . . . . . . . . . . . . . . . 15
SECTION 6.2 Ranking. . . . . . . . . . . . . . . . . . . 16
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ARTICLE 7 - TERMINATION
SECTION 7.1 Termination. . . . . . . . . . . . . . . . . 16
ARTICLE 8 - INDEMNIFICATION
SECTION 8.1 Exculpation. . . . . . . . . . . . . . . . . 16
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
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<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of ______
___, , is executed and delivered by Old Kent Financial
Corporation, a Michigan corporation (the "Guarantor"), and Bankers Trust
Company, a New York banking corporation, as indenture trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Securities (as defined herein) of Old Kent Capital
Trust [II, III or IV], a Delaware statutory business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the Declaration (as defined herein), the
Trust is issuing on the date hereof, and may in the future issue
additional, capital securities having a liquidation amount of $____________
per capital security and designated the Subordinated Capital Income
Securities, Series [II, III or IV] (the "Capital Securities"), and common
securities having a liquidation amount of $___________ per common security
and designated the Common Securities (the "Common Securities" and, together
with the Capital Securities, the "Securities");
WHEREAS, as incentive for the Holders to purchase the Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the
extent set forth in this Guarantee, to pay to the Holders of the Securities
the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the
benefit of the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. In this Guarantee,
unless the context otherwise requires:
(i) capitalized terms used in this Guarantee but not defined in
the preamble above have the respective meanings assigned to them in
this Section 1.1;
(ii) a term defined anywhere in this Guarantee has the same
meaning throughout;
(iii) all references to "the Guarantee" or "this Guarantee" are to
this Guarantee as modified, supplemented or amended from time to time;
<PAGE>
(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 it 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
________________________________________________, Attention:
_________________.
"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 [____%] [Variable Rate]
Junior Subordinated Debentures, Series [II, III or IV], 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 _______ __, 199_, 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; PROVIDED,
HOWEVER, that except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not
have cured the default within 60 days after receipt of the notice.
"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.
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"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 the Securities to the extent the Trust shall have sufficient funds
available therefor at the time, (ii) the Redemption Price (as defined in
the Declaration), 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 or (B) the amount of
assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust (in either case, the "Liquidation Distribution").
If a Trust Enforcement Event (as defined in the Declaration) has occurred
and is continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under this Guarantee are subordinated to the
rights of Holders of the Capital Securities to receive payments hereunder.
"Holder" shall mean any holder of Securities, as registered on
the books and records of the Trust; PROVIDED, HOWEVER, that, in determining
whether the Holders of the requisite percentage of Capital Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor or any other
obligor on the Capital Securities; and PROVIDED FURTHER, that in
determining whether the Holders of the requisite liquidation amount of
Capital Securities have voted on any matter provided for in this Guarantee,
then for the purpose of such determination only (and not for any other
purpose hereunder), if the Capital Securities remain in the form of one or
more Global Certificates (as defined in the Declaration), the term
"Holders" shall mean the holder of the Global Certificate acting at the
direction of the beneficial holders of the Securities.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or
agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of ________ __, _____,
among the Guarantor and Bankers Trust Company, as trustee, and any
indenture supplemental thereto pursuant to which the Debentures are to be
issued to the Property Trustee 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
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<PAGE>
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 brief statement as to the nature and scope of the
examination and investigation upon which the statements and opinions
contained in such certificate or opinion are based;
(iii) 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
(iv) 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 the President, any Principal Vice President, any
Assistant Vice President, any Managing Director, 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.
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<PAGE>
"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 (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, in each case as of a date no more than 15 days before the List of
Holders is given to the Guarantee Trustee; provided, however, that if and so
long as the Guarantee Trustee is the Securities Registrar for the Securities,
no such lists need be furnished with respect to the Securities. 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
December 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.
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<PAGE>
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 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.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Guarantee that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) shall be given in the form of
an Officers' Certificate.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of
a Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any
such Guarantee Event of Default shall cease to exist, and any Guarantee
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any
right consequent thereon.
SECTION 2.7 GUARANTEE EVENT OF DEFAULT; NOTICE. (a) The
Guarantee Trustee shall, within 90 days after the occurrence of a Guarantee
Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all Guarantee Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; PROVIDED,
that the Guarantee Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Guarantee Trustee shall have
received written notice thereof or a Responsible Officer of the Guarantee
Trustee charged with the administration of this Guarantee 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
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<PAGE>
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.
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
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<PAGE>
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
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 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
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<PAGE>
(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,
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;
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(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,
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 may (but shall have no obligation to) 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.
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(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.
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
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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) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and
delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint 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 Extension Period (as defined in the Indenture) with
respect to the Distributions 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 of the following:
(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, Liquidation
Distribution or any other sums payable under 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,
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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 Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on 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.
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.
(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. 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.
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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.
ARTICLE 6
SUBORDINATION; RANKING
SECTION 6.1 SUBORDINATION.
The obligations of the Guarantor under this Guarantee will
constitute unsecured obligations of the Guarantor and will rank subordinate
and junior in right of payment to all Indebtedness (as defined in the
Indenture) to the extent and in the manner set forth in the Indenture. The
obligations of the Guarantor under this Guarantee do not constitute
Indebtedness.
SECTION 6.2 RANKING.
The obligations of the Guarantor under this Guarantee will rank
PARI PASSU with the obligations of the Guarantor (i) under any similar
guarantee made by the Guarantor on behalf of holders of securities issued
by any other trust under the Indenture, (ii) under the Guarantee Agreement
dated as of January 31, 1997 between the Guarantor and Bankers Trust
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Company concerning securities issued by Old Kent Capital Trust I, or
(iii) made PARI PASSU 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.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate upon (i) full payment of the
Redemption Price 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
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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
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 or the
earlier resignation or termination of the Guarantee Trustee.
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). The Guarantor's
obligations under this Section 8.3 shall survive the termination of this
Guarantee or the earlier resignation or termination of the Guarantee
Trustee.
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
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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 11.2 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:
(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
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Corporate Market Services
Fax: (212) 250-6392
(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
111 Lyon Street, N.W.
Grand Rapids, MI 49503
Attn: Corporate Secretary
Fax: (616) 771-5272
(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.
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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 (WITHOUT
REGARD TO ITS CONFLICT OF LAW PROVISIONS).
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This Guarantee is executed as of the day and year first written
above.
OLD KENT FINANCIAL CORPORATION,
as Guarantor
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
By:
Name:
Title:
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EXHIBITS 5(a) and 23(b)
[RICHARDS, LAYTON & FINGER LETTERHEAD]
July 16, 1998
Old Kent Capital Trust II
Old Kent Capital Trust III
Old Kent Capital Trust IV
c/o Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Re: OLD KENT CAPITAL TRUST II, OLD KENT CAPITAL TRUST III AND
OLD KENT CAPITAL TRUST IV
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 II, Old Kent Capital Trust III and Old Kent Capital Trust IV,
each a Delaware business trust (collectively, the "Trusts"), 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 Certificates of Trust of the Trusts (the "Certificates"),
as filed in the office of the Secretary of State of the State of Delaware
(the "Secretary of State") on July 14, 1998;
(b) The Declaration of Trust of each of the Trusts, dated as
of July 14, 1998, between the Company and the trustee of
the Trusts named therein;
(c) The Registration Statement (the "Registration Statement") on
Form S-3, including a preliminary prospectus (the "Prospectus") relating
to its Junior Subordinated Deferrable Interest Debentures of Old Kent
Financial Corporation and Capital Securities of each of the Trusts
representing preferred undivided beneficial interests in the assets of each
of the respective Trusts (each, a "Capital Security" and collectively, the
"Capital Securities"), as originally filed by the Company and the
Trusts with the Securities and Exchange Commission on or about July 17,
1998;
<PAGE>
Old Kent Capital Trust II
Old Kent Capital Trust III
Old Kent Capital Trust IV
July 16, 1998
Page 2
____________________________________
(d) The form of the Amended and Restated Declaration of Trust of
each of the Trusts filed as an Exhibit to the Registration Statement
(the "Declaration"), to be entered into among the Company, the Trust,
and Bankers Trust Company, as Property Trustee, Bankers Trust (Delaware),
as Delaware Trustee; and
(e) A Certificate of Good Standing of each of the Trusts,
dated July 16, 1998, 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 Certificates 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 Capital
Security is to be issued by the Trusts (collectively, the "Capital Security
<PAGE>
Old Kent Capital Trust II
Old Kent Capital Trust III
Old Kent Capital Trust IV
July 16, 1998
Page 3
____________________________________
Holders") of an appropriate certificate for such Capital Security and the
payment for the Capital Security acquired by it, in accordance with the
Declaration and the Registration Statement, and (vii) that the
Capital Securities are issued and sold to the Capital Security Holders in
accordance with the Declarations and the Registration Statement.
We have not participated in the preparation of the Registration Statement
and assume no responsibility for its contents.
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. Each of the Trusts has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust Act.
2. The 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 each of the respective Trusts.
3. The Capital Security Holders of each of the Trusts, as beneficial
owners of the respective Trusts, 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 Capital Security Holders may be obligated to make payments as
set forth in the respective Declarations.
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,
<PAGE>
Old Kent Capital Trust II
Old Kent Capital Trust III
Old Kent Capital Trust IV
July 16, 1998
Page 4
______________________________
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 5(b) and 23(c)
[WARNER NORCROSS & JUDD LLP LETTERHEAD]
July 16, 1998
Old Kent Financial Corporation
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
Re: Old Kent Capital Trust II
Old Kent Capital Trust III
Old Kent Capital Trust IV
Registration Statement on Form S-3
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-3
filed with the Securities and Exchange Commission on or about July 17, 1998
(the "Registration Statement"), of $200,000,000 aggregate principal amount of
the Company's junior subordinated debentures to be issued from time to time
in one or more series (the "Debentures"), and the related Guarantee
Agreements (the "Guarantees") from the Company to Bankers Trust Company, as
Guarantee Trustee for the benefit of holders of capital securities (the
"Capital Securities") that may be issued from time to time by any of Old
Kent Capital Trust II, Old Kent Capital Trust III and Old Kent Capital
Trust IV, each a Delaware business trust (the "Trusts"), representing
undivided preferred beneficial interests in the assets of the Trusts. We
have also represented the Company in connection with the qualification under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
an Indenture with respect to the Debentures to be entered into between the
Company and Bankers Trust Company, as Trustee (as it may be amended or
supplemented from time to time, the "Indenture"), and of the Guarantees.
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with the opinions contained herein, we have
examined the Registration Statement, the Indenture, the form of Debenture
filed as an exhibit to the Registration Statement, the form of Guarantee
filed as an exhibit to the Registration Statement, the Restated Articles of
<PAGE>
Old Kent Financial Corporation
July 16, 1998
Page 2
_______________________________
Incorporation and Bylaws of the Company, the corporate action taken by the
Company relating to the Debentures and their issuance under the Indenture
and the Guarantees, and such other documents as we have deemed appropriate
as a basis for the opinions hereinafter expressed. In our review, we have
assumed the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted
to us as copies and the authenticity of the originals of such copies. In
making our review of documents executed, or to be executed, by parties
other than the Company and the Trusts, we have assumed that the parties
had, or will have, the power, corporate or other, to enter into and perform
all obligations under the documents and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by those parties of the documents and that the documents
constitute valid and binding obligations of those parties. In addition, we
have assumed that the Indenture, the Debentures and the Guarantees when
executed will be substantially in the forms reviewed by us. As to any facts
material to the opinions expressed in this letter that were not independently
verified or established, we have relied upon oral or written statements and
representations of officers, trustees and other representatives of the
Company and the Trusts.
Based upon and subject to the foregoing we are of the opinion
that when (i) the Registration Statement becomes effective (ii) the Indenture
and any supplement or amendment thereto have been duly executed and (iii) the
terms of the Debentures corresponding to each series of Capital Securities
issued by the Trusts have been established in accordance with the Indenture
(including any supplement or amendment thereto):
(a) The Debentures to be issued by the Company will have
been duly and validly authorized and, upon proper execution,
authentication and delivery thereof in accordance with the
Indenture against payment therefor, will be legally issued and
will constitute binding obligations of the Company entitled to
the benefits of the Indenture; and
(b) Each Guarantee to be issued by the Company has been
duly and validly authorized and, upon proper execution,
authentication and delivery thereof in accordance with its terms,
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 Trusts, has rendered its
opinion that, among other things, the Capital Securities of each Trust will
represent valid and, subject to certain qualifications set forth in that
<PAGE>
Old Kent Financial Corporation
July 16, 1998
Page 3
_______________________________
opinion letter, fully paid and nonassessable undivided beneficial interests
in the assets of the issuing Trust.
We hereby consent to filing this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the
reference to our firm under the heading "Legal Opinions" contained therein.
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
/S/ GORDON R. LEWIS
Gordon R. Lewis, a Partner
<PAGE>
Exhibits 8 and 23(c)
[WARNER NORCROSS & JUDD LLP LETTERHEAD]
July 16, 1998
Old Kent Capital Trust II
Old Kent Financial Corporation
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503
Re: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Old Kent Financial Corporation, a
Michigan corporation (the "Corporation"), and Old Kent Capital Trust II, a
statutory business trust formed under the laws of the State of Delaware
(the "Trust"), in connection with a Registration Statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
(the "Commission") on or about July 17, 1998 for the purpose or registering
capital income securities representing undivided preferred beneficial
interests in the assets of the Trust (the "Capital Securities"), junior
subordinated deferrable interest debentures to be issued by the Corporation
to the Trust, and a guarantee by the Corporation with respect to the
Capital Securities.
We hereby confirm our opinions set forth under the heading
"Certain United States Federal Income Tax Consequences" contained in the
form of Prospectus Supplement for an offering of Capital Securities filed
as an exhibit to the Registration Statement (the "Form of Prospectus
Supplement").
This opinion assumes that any instrument that is issued under
the Form of Prospectus Supplement will have terms identical to those set
forth in the Form of Prospectus Supplement. We express no opinion with
respect to the transactions referred to in the Registration Statement or
the Form of Prospectus Supplement other than as expressly set forth herein.
Moreover, we note that there is no authority directly on point dealing with
securities such as the Capital Securities or transactions of the type
described herein. Our opinion is not binding on the Internal Revenue Service
or the courts, either of which could take a contrary position. Nevertheless,
we believe that if challenged, the opinions we express herein would be
sustained by a court with jurisdiction in a properly presented case.
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 any
such change, our opinion would not be different. We undertake no
responsibility to update or supplement our opinion.
<PAGE>
Old Kent Financial Corporation
Old Kent Capital Trust II
July 16, 1998
Page 2
______________________________
We are admitted to practice law only in the State of Michigan and
the opinions we express herein are limited solely to matters governed by
laws of the State of Michigan and the federal law of the United States.
This opinion is furnished to you solely for your benefit in
connection with the filing of the Registration Statement and, except as
provided below, this opinion may not be furnished, circulated or quoted to,
or relied upon by, any other person for any purpose. 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 headings "Certain United States Federal Income Tax Consequences"
and "Legal Opinions" in the Form of Prospectus Supplement and under the
heading "Legal Opinions" in the Prospectus forming a part of the
Registration Statement.
WARNER NORCROSS & JUDD LLP
By /s/ Stephen R. Kretschman
Stephen R. Kretschman, a Partner
<PAGE>
EXHIBIT 12
OLD KENT FINANCIAL CORPORATION
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30 YEARS ENDED DECEMBER 31
---------------- ------------------------------------------
(dollar amounts in thousands)
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes $147,182 $142,017 $273,885 $238,722 $214,613 $205,702 $198,298
Fixed charges 68,326 42,916 99,490 70,477 70,682 38,646 22,137
-------- -------- -------- -------- -------- -------- --------
$215,508 $184,933 $373,375 $309,199 $285,295 $244,348 $220,435
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest expense
(other than interest on deposits) $ 68,306 $ 42,896 $ 99,449 $ 70,436 $ 70,641 $ 38,605 $ 22,096
Interest factor in rent expense -- -- -- -- -- -- --
Other 20 20 41 41 41 41 41
-------- -------- -------- -------- -------- -------- --------
$ 68,326 $ 42,916 $ 99,490 $ 70,477 $ 70,682 $ 38,646 $ 22,137
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges,
excluding interest on deposits 3.15 4.31 3.75 4.39 4.04 6.32 9.96
Including Interest On Deposits
Earnings:
Income before income taxes $147,182 $142,017 $273,885 $238,722 $214,613 $205,702 $198,298
Fixed charges 258,018 239,945 495,383 453,060 433,167 303,592 264,605
-------- -------- -------- -------- -------- -------- --------
$405,200 $381,962 $769,268 $691,782 $647,780 $509,294 $462,903
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest expense $257,998 $239,925 $495,342 $453,019 $433,126 $303,551 $264,564
Interest factor in rent expense -- -- -- -- -- -- --
Other 20 20 41 41 41 41 41
-------- -------- -------- -------- -------- -------- --------
$258,018 $239,945 $495,383 $453,060 $433,167 $303,592 $264,605
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges,
including interest on deposits 1.57 1.59 1.55 1.53 1.50 1.68 1.75
</TABLE>
<PAGE>
EXHIBIT 23(a)
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 14, 1998 included in Old Kent Financial
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Chicago, Illinois,
July 17, 1998
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ ROBERT H. WARRINGTON
Robert H. Warrington
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ RICHARD M. DEVOS, JR.
Richard M. DeVos, Jr.
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ JOHN D. BOYLES
John D. Boyles
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ KEVIN T. KABAT
Kevin T. Kabat
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 23, 1998 /S/ JOHN P. KELLER
John P. Keller
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ DAVID J. WAGNER
David J. Wagner
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ MARGARET SELLERS WALKER
Margaret Sellers Walker
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ RICHARD L. ANTONINI
Richard L. Antonini
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 21, 1998 /S/ WILLIAM G. GONZALEZ
William G. Gonzalez
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ HENDRIK G. MEIJER
Hendrik G. Meijer
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ PERCY A. PIERRE
Percy A. Pierre
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ MARILYN J. SCHLACK
Marilyn J. Schlack
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ PETER F. SECCHIA
Peter F. Secchia
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ WILLIAM P. CRAWFORD
William P. Crawford
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ JAMES P. HACKETT
James P. Hackett
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ ERINA HANKA
Erina Hanka
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ EARL D. HOLTON
Earl D. Holton
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ MICHAEL J. JANDERNOA
Michael J. Jandernoa
<PAGE>
EXHIBIT 24(a)
LIMITED POWER OF ATTORNEY
(Capital Securities)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact 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 Old Kent Financial
Corporation (the "Company"), a Registration Statement 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) $200,000,000 in aggregate liquidation amount of
Capital Securities of one or more trusts, (b) up to $200,000,000 in
aggregate principal amount of the Company's Subordinated Debentures, and
(c) the Company's Guarantee;
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate 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 documents
and instruments which such attorney-in-fact may deem appropriate 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.
February 16, 1998 /S/ FRED P. KELLER
Fred P. Keller
<PAGE>
EXHIBIT 25
- ---------------------------------------------------------------------------
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 13-4941247
(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 MICHIGAN 38-1986608
OLD KENT CAPITAL TRUST II DELAWARE 51-6508993
OLD KENT CAPITAL TRUST III DELAWARE 51-6508994
OLD KENT CAPITAL TRUST IV DELAWARE 51-6508995
(Exact name of each obligor (State or other jurisdiction of (I.R.S. employer
as specified in its charter) Incorporation or organization) Identification no.)
111 LYON STREET, N.W. ALBERT T. POTAS
GRAND RAPIDS, MICHIGAN 49503 SENIOR VICE PRESIDENT OF OLD KENT
(ADDRESS, INCLUDING ZIP CODE, FINANCIAL CORPORATION
OF REGISTRANT'S PRINCIPAL 111 LYON STREET, N.W.
EXECUTIVE OFFICES) GRAND RAPIDS, MICHIGAN 49503
(616) 752-2752
(NAME, ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, OF AGENT FOR SERVICE)
<PAGE>
CAPITAL SECURITIES OF OLD KENT CAPITAL TRUSTS II, III, AND IV(SEVERALLY,
"CAPITAL SECURITIES") JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
OF OLD KENT CORPORATION OLD KENT CORPORATION GUARANTEES 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.
NAME ADDRESS
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(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,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated March 20,
1996, incorporate by referenced to Exhibit 1 filed with
Form T-1 Statement, Registration No. 333-25843 and
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 19,
1997, 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 November 18, 1997. Copy attached.
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 - The latest report of condition of Bankers Trust Company
dated as of March 31, 1998. Copy attached.
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 13th day of July, 1998.
BANKERS TRUST COMPANY
By: /S/MARC PARILLA
Marc Parilla
Assistant Treasurer
-4-
<PAGE>
STATE OF NEW YORK,
BANKING DEPARTMENT
I, MANUEL KURSKY, Deputy Superintendent of Banks 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 June 19, 1997, providing for an
increase in authorized capital stock from $1,601,666,670 consisting of
100,166,667 shares with a par value of $10 each designated as Common Stock
and 600 shares with a par value of $1,000,000 each designated as Series
Preferred Stock to $2,001,666,670 consisting of 100,166,667 shares with a
par value of $10 each designated as Common Stock and 1,000 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 27TH DAY OF JUNE IN THE YEAR OF OUR
LORD ONE THOUSAND NINE HUNDRED AND NINETY-SEVEN.
MANUEL KURSKY
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, Six Hundred and One Million,
Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,601,666,670), 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 600
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 Two Billion One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($2,001,666,670),
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 1000 shares with a par
value of One Million Dollars ($1,000,000) each designated as
Series Preferred Stock."
<PAGE>
5. 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
19th day of June, 1997.
JAMES T. BYRNE, JR.
James T. Byrne, Jr.
Managing Director
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.
LEA LAHTINEN
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
SANDRA L. WEST
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
BANKERS TRUST COMPANY
NEW YORK
<PAGE>
BY-LAWS
OF
BANKERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall
be held at the office of the Company in the Borough of Manhattan, City of New
York, on the third Tuesday in January of each year, for the election of
directors and such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated
by statute may be called at any time by a majority of the directors. It shall
be the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present,
either in person or by proxy, stockholders owning a majority of the capital
stock of the Company, in order to constitute a quorum, except at special
elections of directors, as provided by law, but less than a quorum shall have
power to adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief
Executive Officer or, in his absence, the President or, in their absence, the
senior officer present, shall preside at meetings of the stockholders and shall
direct the proceedings and the order of business. The Secretary shall act as
secretary of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate
powers exercised by a Board of Directors consisting of such number of
directors, but not less than ten nor more than twenty-five, as may from time to
time be fixed by resolution adopted by a majority of the directors then in
office, or by the stockholders. In the event of any increase in the number of
directors, additional directors may be elected within the limitations
so fixed, either by the stockholders or within the limitations imposed
by law, by a majority of directors then in office. One-third of the number
of directors, as fixed from time to time, shall constitute a quorum. Any one
or more members of the Board of Directors or any Committee thereof may
participate in a meeting of the Board of Directors or Committee thereof by
<PAGE>
means of a conference telephone or similar communications equipment which
allows all persons participating in the meeting to hear each other at the
same time. Participation by such means shall constitute presence in
person at such a meeting.
All directors hereafter elected shall hold office until the next
annual meeting of the stockholders and until their successors are
elected and have qualified. No person who shall have attained age 72
shall be eligible to be elected or re-elected a director. Such
director may, however, remain a director of the Company until the
next annual meeting of the stockholders of Bankers Trust New York
Corporation (the Company's parent) so that such director's retirement
will coincide with the retirement date from Bankers Trust New York
Corporation.
No Officer-Director who shall have attained age 65, or earlier
relinquishes his responsibilities and title, shall be eligible to
serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of
the Board of Directors may be filled by the affirmative vote of a majority
of the directors then in office, and the directors so elected shall hold
office for the balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of
the Board of Directors. In his absence, the Chief Executive Officer or, in
his absence, such other director as the Board of Directors from time to time
may designate shall preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations
for the conduct of its meetings and the management of the affairs of the
Company as it may deem proper, not inconsistent with the laws of the State of
New York, or these By-Laws, and all officers and employees shall strictly
adhere to, and be bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held
from time to time on the third Tuesday of the month. If the day appointed
for holding such regular meetings shall be a legal holiday, the regular
meeting to be held on such day shall be held on the next business day
thereafter. Special meetings of the Board of Directors may be called upon at
least two day's notice whenever it may be deemed proper by the Chairman of
the Board or, the Chief Executive Officer or, in their absence, by such
other director as the Board of Directors may have designated pursuant
to Section 3 of this Article, and shall be called upon like notice
whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of
committees shall be fixed from time to time by resolution of the Board of
Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board
consisting of not less than five directors who shall be appointed annually
by the Board of Directors. The Chairman of the Board shall preside at
meetings of the Executive Committee. In his absence, the Chief Executive
Officer or, in his absence, such other member of the Committee as the
Committee from time to time may designate shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent
permitted by law all of the powers of the Board of Directors, except
when the latter is in session, and shall keep minutes of its
proceedings, which shall be presented to the Board of Directors at
its next subsequent meeting. All acts done and powers and authority
conferred by the Executive Committee from time to time shall be and
be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the
Committee may act only by the concurrent vote of not less than one-third of
its members, at least one of whom must be a director other
than an officer. Any one or more directors, even though not members
of the Executive Committee, may attend any meeting of the Committee,
and the member or members of the Committee present, even though less
than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the
Committee, and each such substitute or substitutes shall be counted
for quorum, voting, and all other purposes as a member or members of
the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by
resolution adopted by a majority of the entire Board of Directors which
shall consist of such number of directors, who are not also officers of the
Company, as may from time to time be fixed by resolution adopted by the Board
of Directors. The Chairman shall be designated by the Board of Directors,
who shall also from time to time fix a quorum for meetings of the Committee.
Such Committee shall conduct the annual directors' examinations of the
Company as required by the New York State Banking Law; shall review the
reports of all examinations made of the Company by public authorities and
report thereon to the Board of Directors; and shall report to the Board of
Directors such other matters as it deems advisable with respect to the
Company, its various departments and the conduct of its operations.
In the performance of its duties, the Audit Committee may employ or
retain, from time to time, expert assistants, independent of the
officers or personnel of the Company, to make studies of the
<PAGE>
Company's assets and liabilities as the Committee may request and to
make an examination of the accounting and auditing methods of the
Company and its system of internal protective controls to the extent
considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are
being audited by the General Auditor in such a manner as to provide
prudent and adequate protection. The Committee also may direct the
General Auditor to make such investigation as it deems necessary or
advisable with respect to the Company, its various departments and
the conduct of its operations. The Committee shall hold regular
quarterly meetings and during the intervals thereof shall meet at
other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint
any other Committees as may seem necessary, and from time to time to suspend
or continue the powers and duties of such Committees. Each Committee
appointed pursuant to this Article shall serve at the pleasure of the Board
of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number
a Chairman of the Board and a Chief Executive Officer; and shall also elect
a President, and may also elect a Senior Vice Chairman, one or more Vice
Chairmen, one or more Executive Vice Presidents, one or more Senior Managing
Directors, one or more Managing Directors, one or more Senior Vice Presidents,
one or more Principals, one or more Vice Presidents, one or more General
Managers, a Secretary, a Controller, a Treasurer, a General Counsel,
one or more Associate General Counsels, a General Auditor, a General
Credit Auditor, and one or more Deputy Auditors, who need not be
directors. The officers of the corporation may also include such
other officers or assistant officers as shall from time to time be
elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the
Senior Vice Chairman or any Vice Chairman, may from time to time
appoint assistant officers. All officers elected or appointed by the
Board of Directors shall hold their respective offices during the
pleasure of the Board of Directors, and all assistant officers shall
hold office at the pleasure of the Board or the Chairman of the Board
or the Chief Executive Officer or, in their absence, the President,
the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give
security for the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive
Officer of the Company who may also hold the additional title of Chairman of
the Board, President, Senior Vice Chairman or Vice Chairman and such person
<PAGE>
shall have, subject to the supervision and direction of the Board of
Directors or the Executive Committee, all of the powers vested in such Chief
Executive Officer by law or by these By-Laws, or which usually attach
or pertain to such office. The other officers shall have, subject to
the supervision and direction of the Board of Directors or the
Executive Committee or the Chairman of the Board or, the Chief
Executive Officer, the powers vested by law or by these By-Laws in
them as holders of their respective offices and, in addition, shall
perform such other duties as shall be assigned to them by the Board
of Directors or the Executive Committee or the Chairman of the Board
or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit
Committee, to the Board of Directors for the determination of the
program of the internal audit function and the evaluation of the
adequacy of the system of internal controls. Subject to the Board of
Directors, the General Auditor shall have and may exercise all the
powers and shall perform all the duties usual to such office and
shall have such other powers as may be prescribed or assigned to him
from time to time by the Board of Directors or vested in him by law
or by these By-Laws. He shall perform such other duties and shall
make such investigations, examinations and reports as may be
prescribed or required by the Audit Committee. The General Auditor
shall have unrestricted access to all records and premises of the
Company and shall delegate such authority to his subordinates. He
shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system
of internal controls of the Company which he deems advisable or which
the Audit Committee may request. Additionally, the General Auditor
shall have the duty of reporting independently of all officers of the
Company to the Audit Committee at least quarterly on any matters
concerning the internal audit program and the adequacy of the system
of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for
which has been vested in the General Credit Auditor. Should the
General Auditor deem any matter to be of special immediate
importance, he shall report thereon forthwith to the Audit Committee.
The General Auditor shall report to the Chief Financial Officer only
for administrative purposes.
The General Credit Auditor shall be responsible to the Chief
Executive Officer and, through the Audit Committee, to the Board of
Directors for the systems of internal credit audit, shall perform
such other duties as the Chief Executive Officer may prescribe, and
shall make such examinations and reports as may be required by the
Audit Committee. The General Credit Auditor shall have unrestricted
access to all records and may delegate such authority to
subordinates.
<PAGE>
SECTION 3. The compensation of all officers shall be fixed under
such plan or plans of position evaluation and salary administration as shall
be approved from time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman
of the Board, the Chief Executive Officer or any person authorized for this
purpose by the Chief Executive Officer, shall appoint or engage all other
employees and agents and fix their compensation. The employment of all such
employees and agents shall continue during the pleasure of the Board
of Directors or the Executive Committee or the Chairman of the Board
or the Chief Executive Officer or any such authorized person; and the
Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any such authorized person may
discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by
Section 7018 of the New York Banking Law, indemnify any person who is or
was made, or threatened to be made, a party to an action or proceeding,
whether civil or criminal, whether involving any actual or alleged breach
of duty, neglect or error, any accountability, or any actual or alleged
misstatement, misleading statement or other act or omission and whether
brought or threatened in any court or administrative or legislative body
or agency, including an action by or in the right of the Company to procure
a judgment in its favor and an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership,
joint venture, trust, employee benefit plan or other enterprise, which any
director or officer of the Company is servicing or served in any capacity at
the request of the Company by reason of the fact that he, his testator or
intestate, is or was a director or officer of the Company, or is serving or
served such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, against judgments, fines,
amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or
other final adjudication adverse to the director or officer establishes
that (i) his acts were committed in bad faith or were the result of active
and deliberate dishonesty and, in either case, were material to the cause
of action so adjudicated, or (ii) he personally gained in fact a financial
profit or other advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the
Company is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to,
or provided by, the New York Banking Law or other rights created by (i) a
<PAGE>
resolution of stockholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance
to any person referred to in Section 1 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action
or proceeding referred to in Section 1, upon receipt of a written undertaking
by or on behalf of such person to repay such amount(s) if a judgment or other
final adjudication adverse to the director or officer establishes
that (i) his acts were committed in bad faith or were the result of
active and deliberate dishonesty and, in either case, were material
to the cause of action so adjudicated, or (ii) he personally gained
in fact a financial profit or other advantage to which he was not
legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the
election of its directors is held by the Company, or (ii) any employee
benefit plan of the Company or any corporation referred to in clause (i) in
any capacity shall be deemed to be doing so at the request of the Company.
In all other cases, the provisions of this Article V will apply (i) only if
the person serving another corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise so served at the
specific request of the Company, evidenced by a written communication
signed by the Chairman of the Board, the Chief Executive Officer or
the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive
Officer or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other
enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the
reimbursement or advancement of expenses as a matter of right pursuant to
this Article V may elect to have the right to indemnification (or advancement
of expenses) interpreted on the basis of the applicable law in effect at the
time of occurrence of the event or events giving rise to the action or
proceeding, to the extent permitted by law, or on the basis of the applicable
law in effect at the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or
advancement of expense pursuant to this Article V (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or
restrictive modification hereof with respect to events occurring
prior thereto.
<PAGE>
SECTION 7. If a request to be indemnified or for the reimbursement
or advancement of expenses pursuant hereto is not paid in full by the
Company within thirty days after a written claim has been received by the
Company, the claimant may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and, if successful in whole
or in part, the claimant shall be entitled also to be paid the expenses of
prosecuting such claim. Neither the failure of the Company (including
its Board of Directors, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of such action that
indemnification of or reimbursement or advancement of expenses to the
claimant is proper in the circumstance, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant is not entitled to indemnification or
to the reimbursement or advancement of expenses, shall be a defense
to the action or create a presumption that the claimant is not so
entitled.
SECTION 8. A person who has been successful, on the merits or
otherwise, in the defense of a civil or criminal action or proceeding of
the character described in Section 1 shall be entitled to indemnification
only as provided in Sections 1 and 3, notwithstanding any provision of the
New York Banking Law to the contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company,
the counterpart dies of which shall be in the charge of the Secretary of the
Company and such officers as the Chairman of the Board, the Chief Executive
Officer or the Secretary may from time to time direct in writing, to be
affixed to certificates of stock and other documents in accordance with the
directions of the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a
specified occasion and for a specified transaction or transactions, for the
use of a printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon
the books of the Company by the registered holder in person, or by power of
<PAGE>
attorney, duly executed, witnessed and filed with the Secretary or other proper
officer of the Company, on the surrender of the certificate or certificates of
such shares properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall
be deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the
Board of Directors at any meeting, or by the stockholders at any annual or
special meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New
York, New York, hereby certify that the foregoing is a complete, true
and correct copy of the By-Laws of Bankers Trust Company, and that
the same are in full force and effect at this date.
__________________________
ASSISTANT TREASURER
DATED: July 13, 1998
<PAGE>
<TABLE>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/98 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
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1998
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.
SCHEDULE RC--BALANCE SHEET
<CAPTION>
_______________
C400
DOLLAR AMOUNTS IN THOUSANDS RCFD BIL MIL THOU
<S> <C> <C>
ASSETS / / / / / / / / / / / /
1. Cash and balances due from depository institutions
(from Schedule RC-A): / / / / / / / / / / / /
a. Noninterest-bearing balances and currency and
coin <F1>........................................... 0081 1,458,000 1.a.
b. Interest-bearing balances <F2>...................... 0071 2,253,000 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 6,444,000 2.b.
3. Federal funds sold and securities purchased under
agreements to resell.................................... 1350 30,836,000 3.
4. Loans and lease financing receivables: / / / / / / / / / / / /
a. Loans and leases, net of unearned income (from
Schedule RC-C)...................................... RCFD 2122 19,993,000 / / / / / / / / / / / / 4.a.
b. LESS: Allowance for loan and lease
losses.............................................. RCFD 3123 647,000 / / / / / / / / / / / / 4.b.
c. LESS: Allocated transfer risk reserve............. RCFD 3128 0 / / / / / / / / / / / / 4.c.
d. Loans and leases, net of unearned income, / / / / / / / / / / / /
allowance, and reserve (item 4.a minus 4.b and
4.c)................................................ 2125 19,346,000 4.d.
5. Trading Assets (from schedule RC-D)..................... 3545 45,690,000 5.
6. Premises and fixed assets (including capitalized
leases)................................................. 2145 791,000 6.
7. Other real estate owned (from Schedule RC-M)............ 2150 184,000 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M)............... 2130 104,000 8.
9. Customers' liability to this bank on acceptance
soutstanding............................................ 2155 542,000 9.
10. Intangible assets (from Schedule RC-M).................. 2143 81,000 10.
11. Other assets (from Schedule RC-F)....................... 2160 5,339,000 11.
12. Total assets (sum of items 1 through 11)................ 2170 113,068,000 12.
<PAGE>
<FN>
__________________________
<F1> Includes cash items in process of collection and unposted debits.
<F2> Includes time certificates of deposit not held for trading.
</FN>
</TABLE>
<PAGE>
<TABLE>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: 0 0 6 2 3
SCHEDULE RC--CONTINUED
_____________________________
<CAPTION>
--------------------------------
DOLLAR AMOUNTS IN THOUSANDS / / / / / / BIL MIL THOU
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES / / / / / / / / / / / /
13. Deposits: / / / / / / / / / / / /
a. In domestic offices (sum of totals of columns A and
C from Schedule RC-E, part I)....................... RCON 2200 26,465,000 13.a.
(1) Noninterest-bearing<F1>......................... RCON 6631 3,005,000 13.a(1)
/ / / / / / / / / / / /
(2) Interest-bearing ............................... RCON 6636 23,460,000 13.a(2)
/ / / / / / / / / / / /
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E........................ / / / / / / / / / / / /
part II) RCFN 2200 21,993,000 13.b.
(1) Noninterest-bearing ........................... RCFN 6631 1,712,000 13.b(1)
/ / / / / / / / / / / /
(2) Interest-bearing............................... RCFN 6636 20,281,000 13.b(2)
/ / / / / / / / / / / /
14. Federal funds purchased and securities sold under
agreements to repurchase................................ RCFD 2800 12,125,000 14.
15. a. Demand notes issued to the U.S. Treasury............ RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D)............ RCFD 3548 25,701,000 15.b.
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases): / / / / / / / / / / / /
a. With a remaining maturity of one year or less....... RCFD 2332 6,773,000 16.a.
b. With a remaining maturity of more than one year
through three years................................. A547 3,754,000 16.b.
c. With a remaining maturity of more than three
years............................................... A548 2,212,000 16.c
17. Not Applicable.......................................... / / / / / / / / / / / / 17.
18. Bank's liability on acceptances executed and
outstanding............................................. RCFD 2920 542,000 18.
19. Subordinated notes and debentures <F2>.................. RCFD 3200 1,308,000 19.
20. Other liabilities (from Schedule RC-G).................. RCFD 2930 6,135,000 20.
21. Total liabilities (sum of items 13 through 20).......... RCFD 2948 107,008,000 21.
22. Not Applicable.......................................... / / / / / / / / / / / /
/ / / / / / / / / / / / 22.
<PAGE>
EQUITY CAPITAL / / / / / / / / / / / /
23. Perpetual preferred stock and related surplus........... RCFD 3838 1,000,000 23.
24. Common stock............................................ RCFD 3230 1,352,000 24.
25. Surplus (exclude all surplus related to preferred
stock).................................................. RCFD 3839 544,000 25.
26. a. Undivided profits and capital reserves.............. RCFD 3632 3,583,000 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities ...................... RCFD 8434 ( 41,000) 26.b.
27. Cumulative foreign currency translation adjustments..... RCFD 3284 ( 378,000) 27.
28. Total equity capital (sum of items 23 through 27)....... RCFD 3210 6,060,000 28.
29. Total liabilities and equity capital (sum of items 21
and 28)................................................. RCFD 3300 113,068,000 29
<FN>
Memorandum
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 NUMBER
auditors as of any date during 1997
.......................................................................................... RCFD 6724 1 M.1
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)
______________________
<F1> Including total demand deposits and noninterest-bearing time and savings
deposits.
<F2> Includes limited-life preferred stock and related surplus.
</FN>
</TABLE>
<PAGE>
EXHIBIT 99
SUBJECT TO COMPLETION, DATED JULY 20, 1998
PROSPECTUS SUPPLEMENT
(To Prospectus Dated _________, 1998)
$_______________
OLD KENT CAPITAL TRUST II
[____%] [FLOATING RATE] SUBORDINATED CAPITAL INCOME SECURITIES SERIES II
(LIQUIDATION AMOUNT $_____ PER CAPITAL SECURITY) FULLY AND
UNCONDITIONALLY GUARANTEED, AS DESCRIBED IN THIS PROSPECTUS SUPPLEMENT, BY
OLD KENT FINANCIAL CORPORATION
The [____%] [Floating Rate] Subordinated Capital Income Securities,
Series II (the "Capital Securities"), offered by this Prospectus Supplement
(the "Offer") represent preferred beneficial interests in Old Kent Capital
Trust II, a Delaware statutory business trust (the "Trust"). Old Kent
Financial Corporation, a Michigan corporation ("Old Kent" or the
"Corporation"), will be the owner of all the beneficial interests represented
by common securities of the Trust (the "Common Securities" and, together with
the Capital Securities, the "Trust Securities"). The Trust exists for the
sole purpose of issuing the Trust Securities and investing the proceeds in
[______%] [Floating Rate] Junior Subordinated Deferrable Interest Debentures
Series II (the "Junior Subordinated Debentures") to be issued by the
Corporation. The Junior Subordinated Debentures will be unsecured and
subordinate in right of payment to all Indebtedness (as defined in
"Description of Junior Subordinated Debentures Subordination" in the
accompanying Prospectus) of the Corporation. Purchasers of the Capital
Securities will hold the Junior Subordinate Debentures indirectly through the
Trust, subject to the rights, limitations and risks described in this
Prospectus Supplement and in the accompanying Prospectus. The Corporation has
the right to defer payments of interest on the Junior Subordinated Debentures
at any time and from time to time for a period not exceeding 20 consecutive
quarters with respect to each deferral period, except that no deferral period
may extend beyond the Stated Maturity (as defined herein) of the Junior
Subordinated Debentures. The Corporation will guarantee payment of
distributions on the Capital Securities out of moneys held by the Trust and
payments on liquidation of the Trust or redemption of the Capital Securities
to the extent the Trust has funds available to make those distributions and
payments. The Capital Securities are not listed for trading on any national
securities exchange or the NASDAQ Stock Market.
SEE "RISK FACTORS" BEGINNING ON PAGE S-7 OF THIS PROSPECTUS SUPPLEMENT
FOR CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN THE CAPITAL SECURITIES.
THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT SUPPLEMENTS, AND SHOULD BE
READ IN CONJUNCTION WITH, THE INFORMATION CONTAINED IN THE ACCOMPANYING
PROSPECTUS.
<PAGE>
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.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR PASSED UPON THE ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
=============================================================================
<CAPTION>
UNDERWRITING PROCEEDS TO
PRICE TO COMMISSIONS THE TRUST
PUBLIC<F1> AND DISCOUNTS<F2> <F3><F4>
<S> <C> <C> <C>
Per Capital Security. . . . . . $ <F3> $
Total . . . . . . . . . . . . . $ <F3> $
=============================================================================
<FN>
<F1> Plus accrued distributions, if any, from ____________, 1998.
<F2> The Trust and the Corporation have each agreed to indemnify the
Underwriters against certain liabilities, including liabilities under
the Securities Act of 1933, as amended. See "Underwriting."
<F3> Because the proceeds of the sale of the Capital Securities will be
invested in the Junior Subordinated Debentures, the Corporation has
agreed to pay to the Underwriters as compensation for their arranging
the investment therein of such proceeds $___ per Capital Security (or
$______ in the aggregate). See "Underwriting."
<F4> Before deducting expenses of the offering payable by the Corporation
estimated to be $290,000.
</FN>
</TABLE>
---------------------
The Capital Securities are offered, subject to prior sale, when, as and if
accepted by the Underwriters named in this Prospectus Supplement and subject to
their right to reject orders in whole or in part. The Corporation and the ____,
Trust expect that delivery of the Capital Securities will be made on or about
1998 through the book entry facilities of The Depository Trust Corporation
("DTC") in New York, New York, against payment therefor in immediately available
funds.
---------------------
[names of managing or lead underwriters]
The date of this Prospectus Supplement is _________, 1998.
The information in this prospectus supplement is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus sup-
plement is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
S-2
<PAGE>
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PAGE
Summary . . . . . . . . . . . . S-3
Risk Factors. . . . . . . . . . S-7
Old Kent Capital Trust II . . . S-11
Old Kent Financial Corporation. S-12
Recent Developments . . . . . . S-13
Purpose of the Offering . . . . S-13
Ratio of Earnings to Fixed
Charges . . . . . . . . . . . S-13
Capitalization. . . . . . . . . S-14
Selected Consolidated Financial
Data . . . . . . . . . . . . S-15
Description of Capital
Securities. . . . . . . . . . S-17
Description of Junior
Subordinated Debentures . . . S-21
Certain United States Federal
Income Tax Consequences. . . S-24
Underwriting . . . . . . . . . S-29
Legal Opinions . . . . . . . . S-30
PROSPECTUS
PAGE
Old Kent Financial Corporation . . . . . . . . . . . . . . . . . . 2
The Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Regulatory Treatment . . . . . . . . . . . . . . . . . . . . . . . 3
Description of Junior
Subordinated Debentures. . . . . . . . . . . . . . . . . . . . . 4
Description of Capital
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Book-Entry Issuance. . . . . . . . . . . . . . . . . . . . . . . .26
Description of Guarantees. . . . . . . . . . . . . . . . . . . . .28
Relationship Among the Capital
Securities, the Junior Subordinated
Debentures and the Guarantees. . . . . . . . . . . . . . . . . .30
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . .32
Benefit Plan Considerations. . . . . . . . . . . . . . . . . . . .33
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . .34
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Available Information. . . . . . . . . . . . . . . . . . . . . . .35
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . . . . . . . . . . . .35
S-3
<PAGE>
--------------------
UNTIL ______, 19__, ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE
SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE
REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE DEALERS'
OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND
WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
--------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN
THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY OLD KENT FINANCIAL CORPORATION, OLD KENT CAPITAL
TRUST II OR ANY UNDERWRITER. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE
INFORMATION THEY CONTAIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR
RESPECTIVE DATES.
--------------------
As used in this Prospectus Supplement, (i) the "Indenture" means
the Indenture between the Corporation and Bankers Trust Company, as
Indenture Trustee, as supplemented by a First Supplemental Indenture,
relating to the Junior Subordinated Debentures, (ii) the "Declaration"
means the Amended and Restated Declaration of Trust relating to the
Trust among the Corporation, as Sponsor, Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and
the three Regular Trustees named in the Declaration, and (iii) the
"Guarantee" means the Guarantee Agreement relating to the Trust
Securities between the Corporation and Bankers Trust Company, as
Guarantee Trustee. The forms of the Indenture, Declaration and
Guarantee have been filed as exhibits to the Registration Statement of
which this Prospectus Supplement and the accompanying Prospectus form
a part. Each of the other capitalized terms used and not otherwise
defined in this Prospectus Supplement has the meaning set forth in the
accompanying Prospectus.
S-4
<PAGE>
SUMMARY
THE FOLLOWING IS A SUMMARY OF CERTAIN INFORMATION CONTAINED
ELSEWHERE IN BOTH THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS. THIS SUMMARY IS QUALIFIED BY THE MORE DETAILED INFORMATION
AND FINANCIAL STATEMENTS (INCLUDING NOTES) APPEARING ELSEWHERE, OR
INCORPORATED BY REFERENCE, IN THIS PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING PROSPECTUS.
THE TRUST
The Trust is a statutory business trust formed under Delaware law
pursuant to a declaration of trust (as amended and restated by the
Declaration) 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 Corporation or its subsidiary Old Kent Bank. 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 Corporation 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 will be owned by the Corporation. See "Old Kent Capital Trust
II."
THE CORPORATION
Old Kent is a Michigan business corporation registered as a bank
holding company. Old Kent has its headquarters in Grand Rapids,
Michigan, and conducts the business of commercial banking through Old
Kent Bank, its wholly owned principal banking subsidiary with banking
offices in Michigan and Illinois, and through Old Kent Bank, National
Association, also a wholly owned subsidiary. Old Kent also wholly owns,
directly or indirectly, operating nonbank subsidiaries offering various
financial and fiduciary products and services through offices located in
Michigan, Illinois and other states. Old Kent's common stock is traded
on The NASDAQ Stock Market under the symbol OKEN. Old Kent's principal
executive office is located at One Vandenberg Center, 111 Lyon Street,
N.W., Grand Rapids, Michigan 49503. Its telephone number is (616) 771-5000.
THE OFFERING
Securities Offered. . . Capital Securities evidencing undivided
preferred beneficial ownership interests in
the assets of the Trust. The holders of the
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Capital Securities will be entitled to a
preference in certain circumstances with
respect to Distributions (as defined below)
and amounts payable on redemption,
liquidation or otherwise over the Common
Securities. See "Description of Capital
Securities Subordination of Common
Securities" herein and in the accompanying
Prospectus.
Distributions . . . . . Holders of the Capital Securities will be
entitled to receive cumulative cash
distributions accruing from the date of
original issuance and payable quarterly in
arrears on [March 31, June 30, September 30
and December 31] of each year, commencing
_______________, ____, at a [variable] annual
rate equal to _______ ("Distributions"). The
Distribution rate will correspond to the
interest rate and interest payment dates and
other payment dates on the Junior
Subordinated Debentures, which will be the
sole assets of the Trust. See "Description
of Capital Securities" herein and in the
accompanying Prospectus.
Junior Subordinated The Trust will invest the proceeds
Debentures . . . . . . . from the issuance of the Capital
Securities and the Common Securities
in an equivalent amount of Junior
Subordinated Debentures issued by the
Corporation. The Junior Subordinate
Debentures will mature on
______________, ____, which date may
be (i) shortened to a date not
earlier than ______, ____, or (ii)
extended to a date not later than
______, ____ (each of those dates, in
context, being referred to as the
"Stated Maturity"), in each case
subject to satisfying certain
conditions, including obtaining any
necessary prior approval of the Board
of Governors of the Federal Reserve
System (the "Federal Reserve"). The
Junior Subordinated Debentures will
rank subordinate and junior in right
of payment to all Indebtedness of the
Corporation. In addition, the
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Corporation's obligations under the
Junior Subordinated 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,"
" Status of the Corporation as a
Holding Company," and "Description of
Junior Subordinated Debentures Subordination."
As of ______, ____, the Corporation had
approximately $____ aggregate
principal amount of Indebtedness
outstanding, and the Corporation's
subsidiaries had approximately $____
of indebtedness and other
liabilities. The terms of the Junior
Subordinate Debentures place no
limitation on the amount of
Indebtedness that may be incurred by
the Corporation or on the amount of
liabilities and obligations of the
Corporation's subsidiaries. See
"Description of Junior Subordinated
Debentures Subordination" in the
accompanying Prospectus.
Guarantee . . . . . . . Under the Guarantee, the Corporation
guarantees payment of distributions on the
Capital Securities out of moneys held by the
Trust and payments on liquidation of the
Trust or the redemption of Capital Securities
to the extent the Trust has funds available
to make those distributions and payments. If
the Corporation 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 will not apply to the Distributions
until the Trust has sufficient funds
available to make the Distributions. The
Corporation's obligations under the
Guarantee, taken together with its
obligations under the Junior Subordinated
Debentures, the Indenture and the
Declaration, including its obligation to pay
all costs, expenses and liabilities of the
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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 Guarantees" and "Relationship
Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee" in
the accompanying Prospectus. The obligations
of the Corporation under the Guarantee are
subordinate and junior in right of payment to
all general liabilities of the Corporation
(with certain exceptions). See "Risk
Factors Ranking of Subordinated Obligations
under the Guarantee and the Junior
Subordinated Debentures" herein and
"Description of Guarantees" in the
accompanying Prospectus.
Right to Defer Interest The Corporation has the right to defer
payment of interest on the Junior
Subordinated Debentures at any time or from
time to time for a period not exceeding 20
consecutive quarters with respect to each
deferral period (each, an "Extension
Period"), PROVIDED that no Extension Period
may 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 (as defined herein),
the Corporation may elect to begin a new
Extension Period subject to the requirements
set forth in this Prospectus Supplement.
Accordingly, 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 also will be deferred
and the Corporation may not, and may not
permit any subsidiary of the Corporation to,
(i) declare or pay any dividends or
distributions on, or redeem, purchase,
acquire, or make a liquidation payment with
respect to, the Corporation'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
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rank PARI PASSU with or junior to the Junior
Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the
Corporation of the debt securities of any
subsidiary of the Corporation if the
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 Corporation 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 Corporation's capital stock (or any
capital stock of a subsidiary of the
Corporation) for any class or series of the
Corporation's capital stock or of any class
or series of the Corporation's indebtedness
for any class or series of the Corporation's
capital stock, (C) the purchase of fractional
interests in shares of the Corporation'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 to such plans, 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 with
interest on that interest (to the extent
permitted by applicable law), and the amount
of Distributions to which holders of the
Capital Securities are entitled will
accumulate, at a [variable] annual rate equal
to _______, compounded quarterly. Holders of
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the Capital Securities will be required to
accrue interest income for United States
federal income tax purposes before receipt of
the cash related to the interest income. See
"Description of Junior Subordinated
Debentures Option to Extend Interest Payment
Period" and "Certain United States Federal
Income Tax Consequences Interest Income and
Original Issue Discount."
Redemption. . . . . . . The Junior Subordinated Debentures are not
redeemable before ______, ____, unless a
Special Event (as defined in "Description of
the Capital Securities Redemption or
Exchange" in the accompanying Prospectus) has
occurred. The Junior Subordinated Debentures
are redeemable before maturity at the option
of the Corporation, subject to the receipt of
any necessary prior approval of the Federal
Reserve, (i) on or after ______, ____, in
whole or in part, at a redemption price equal
to the principal amount of the Junior
Subordinated Debentures so redeemed plus the
accrued and unpaid interest thereon to the
Redemption Date, or (ii) at any time, in
whole, but not in part, upon the occurrence
and continuation of a Special Event, at the
same redemption price. The Capital
Securities are subject to a mandatory
redemption, in whole or in part, upon
repayment of the Junior Subordinated
Debentures at maturity or their earlier
redemption, in an amount equal to the amount
of Junior Subordinated Debentures maturing or
being redeemed and at a redemption price
equal to the redemption price of the Junior
Subordinated Debentures, in each case plus
accumulated and unpaid Distributions thereon
to the date of redemption.
Liquidation of the Trust The Corporation has the right at any time,
subject to the receipt of 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 Capital Securities Redemption
or Exchange" herein and in the accompanying
Prospectus.
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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 $1,000.00 per Capital
Security plus accumulated and unpaid
Distributions thereon to the date of payment,
which may be in the form of a distribution of
the same amount in Junior Subordinated
Debentures as described above. If the
liquidation amount can be paid only in part
because the Trust has insufficient assets
available to pay in full the aggregate
liquidation amount, then the amounts payable
directly by the Trust on the Capital
Securities will 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 (as defined in
"Description of Junior Subordinated
Debentures Indenture Events of Default" in
the accompanying Prospectus) has occurred and
is continuing, the Capital Securities will
have a priority over the Common Securities.
See "Description of Capital
Securities Liquidation Distribution Upon
Dissolution" herein and in the accompanying
Prospectus.
Purpose of the Offering The proceeds from the sale of the Capital
Securities will be used to purchase the
Junior Subordinated Debentures. The
Corporation expects to use the proceeds from
the sale of the Junior Subordinated
Debentures for general corporate purposes,
which may include the repayment of
indebtedness, investments in or extension of
credit to its subsidiaries and the financing
of possible acquisitions. See "Purpose of
the Offering" in this Prospectus Supplement.
Ratings . . . . . . . . The Corporation and the Trust expect that the
Capital Securities will be rated _____ by
Moody's Investors Service, Inc. and _____ by
Standard & Poor's Ratings Services. A
security rating is not a recommendation to
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buy, sell or hold securities and may be
subject to revision or withdrawal at any time
by the assigning rating organization.
Certain United States Prospective purchasers of the Capital
Federal Income Tax Securities should review the information set
Consequences; ERISA forth in "Certain United States Federal Income
Considerations . . . . . Tax Consequences" in this Prospectus Supplement
and the information set forth in "Benefit Plan
Considerations" in the accompanying Prospectus.
Absence of a Market . . The Capital Securities will be a new issue of
securities for which there is currently no
market. Although __________ has informed the
Corporation and the Trust that it currently
intends to make a market in the Capital
Securities, it is not obligated to do so, and
any such market making may be discontinued at
any time without notice. Accordingly,
neither the Corporation nor the Trust can
make any assurance as to either the
development of or the liquidity of any market
for the Capital Securities. See "Risk
Factors Absence of a Public Market."
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RISK FACTORS
AS A PROSPECTIVE PURCHASERS OF THE CAPITAL SECURITIES, YOU SHOULD
CAREFULLY REVIEW THE INFORMATION CONTAINED ELSEWHERE IN THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS AND SHOULD
PARTICULARLY CONSIDER THE FOLLOWING MATTERS. CERTAIN STATEMENTS IN
THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS AND
DOCUMENTS INCORPORATED IN THEM 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 CORPORATION'S CURRENT EXPECTATIONS. TO THE EXTENT
ANY OF THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS
CONSTITUTES A "FORWARD-LOOKING STATEMENT" AS DEFINED IN SECTION
21E(i)(1) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (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 THE FORWARD-LOOKING
STATEMENT.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR
SUBORDINATED DEBENTURES
The obligations of the Corporation under the Guarantee issued by
the Corporation for the benefit of the holders of the Trust's Capital
Securities and under the Junior Subordinated Debentures are unsecured
and rank subordinate and junior in right of payment to all
Indebtedness of the Corporation. Neither the Indenture, the Guarantee
nor the Declaration will place any limitation on the amount of secured
or unsecured Indebtedness that may be incurred by the Corporation or
any of its subsidiaries. See "Description of Guarantees Status of
the Guarantees," "Description of Junior Subordinated
Debentures Subordination" and "The Trusts," all in the accompanying
Prospectus
STATUS OF CORPORATION AS HOLDING COMPANY
The Corporation is a legal entity separate and distinct from Old
Kent Bank, its principal banking subsidiary, and the Corporation's
other subsidiaries, although the principal source of the Corporation's
cash revenues is dividends from Old Kent Bank. See "Old Kent
Financial Corporation" in the accompanying Prospectus. The right of
the Corporation to participate in the distribution of 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 the distribution) will be subject to the
claims of the subsidiary's creditors, which will take priority except
to the extent to which the Corporation itself may be a creditor with a
recognized claim. Old Kent Bank also is subject to restrictions under
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federal and state laws and regulations that limit the transfer of
funds by Old Kent Bank to the Corporation and its nonbanking
subsidiaries, whether in the form of loans, extensions of credit,
investments, asset purchases or otherwise.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Trust Enforcement Event (see "Description of Capital
Securities Trust Enforcement Events" in the accompanying Prospectus)
occurs and is continuing in regards to the Trust, then the holders of
the Capital Securities would rely on the enforcement by the Property
Trustee (see "The Trusts" in the accompanying Prospectus) of its
rights as a holder of the Junior Subordinated Debentures against the
Corporation. The holders of a majority in liquidation amount of the
Capital Securities will 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 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
the Capital Securities may institute legal proceedings directly
against the Corporation to enforce the Property Trustee's rights under
the Junior Subordinated Debentures without first instituting any legal
proceedings against the Property Trustee or any other person or
entity.
If the Corporation were to default on its obligation to pay
amounts payable under the Junior Subordinated Debentures, the Trust
would lack funds both for the payment of the Distributions to which
the holders of the Capital Securities are entitled and for amounts
payable on redemption of the Capital Securities or otherwise, and, in
that event, holders of the Capital Securities would not be able to
rely upon the Guarantee for payment of those amounts. However, if the
Corporation failed to pay interest on or principal of the Junior
Subordinated Debentures on the payment date on which the payment is
due and payable, then a holder of the Capital Securities may directly
institute a proceeding against the Corporation under the Indenture for
enforcement of payment to that holder of the interest on or principal
of the Junior Subordinated Debentures having a principal amount equal
to the aggregate liquidation amount of the related Capital Securities
of that holder (a "Direct Action"). In connection with a Direct
Action, the Corporation will be subrogated to the rights of the holder
of the Capital Securities under the Declaration to the extent of any
payment made by the Corporation to that holder of Capital Securities
in the Direct Action. Except as set forth in this Prospectus
Supplement and the accompanying Prospectus, holders of Capital
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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 Capital Securities Trust Enforcement
Events," "Description of Guarantees" and "Description of Junior
Subordinated Debentures Indenture Events of Default," all in the
accompanying Prospectus. The Declaration will provide that each
holder of the Capital Securities by acceptance of the Capital
Securities agrees to the provisions of the Guarantee and the
Indenture.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
The Corporation has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debentures at any time
and from time to time for the Extension Period, except that no
Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debentures. Distributions on the Capital Securities by
the Trust will be deferred during any Extension Period but will
continue to accumulate at the Distribution rate specified in this
Prospectus Supplement. During any Extension Period there will be
certain limitations on the Corporation's financial activities. Prior
to the termination of any Extension Period, the Corporation may
further extend the Extension Period, PROVIDED that no Extension Period
may exceed 20 interest payment periods or extend beyond the Stated
Maturity. Upon the termination of any Extension Period and the
payment of all amounts then due on any Interest Payment Date, the
Corporation may elect to begin a new Extension Period subject to the
above requirements. See "Description of Capital
Securities Distributions" and "Description of Junior Subordinated
Debentures Option to Extend Interest Payment Period" herein and in
the accompanying Prospectus.
If the Corporation defers payment of interest on the Junior
Subordinated Debentures, a holder of the Capital Securities will be
required to accrue income (in the form of original issue discount)
(which will include both stated interest and the DE MINIMIS original
issue discount, if any, on the Junior Subordinated Debentures) for
United States federal income tax purposes in respect of its PRO RATA
share of the Junior Subordinated Debentures held by the Trust. As a
result, a holder of Capital Securities will include the interest
income in gross income for United States federal income tax purposes
in advance of the receipt of cash attributable to the interest income,
and will not receive the cash related to that 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 the Extension Period.
See "Certain United States Federal Income Tax Consequences Interest
Income and Original Issue Discount" and " Sales of Capital
Securities."
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If the Corporation exercises its right to defer payments of
interest on the Junior Subordinated Debentures, 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 Corporation'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 the right to defer interest
payments.
SPECIAL EVENT REDEMPTION; POSSIBLE TAX LAW CHANGES
Upon the occurrence and continuation of a Special Event (see
"Description of Capital Securities Redemption or Exchange" herein and
in the accompanying Prospectus), the Corporation will have the right,
subject to any necessary prior approval of the Federal Reserve, to
redeem the Junior Subordinated Debentures held by the Trust in whole
(but not in part) within 120 days following the occurrence of the
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.
In recent years, there have been several proposals to adopt
legislation that, if enacted and made applicable to the Junior
Subordinated Debentures, would preclude the Corporation from deducting
interest thereon. The most recent proposal was made by the Clinton
Administration on March 19, 1997. These proposals have not been
adopted by Congress, but there can be no assurance that similar
proposals will not be adopted in the future and made applicable to the
Junior Subordinated Debentures. Accordingly, there can be no
assurance that any such legislation will not result in a Tax Event
that could result in an early mandatory redemption of the Trust
Securities or the dissolution of the Trust and the distribution of the
Junior Subordinated Debentures as described under "Description of
Capital Securities Redemption or Exchange" herein and in the
accompanying Prospectus.
In 1994, the Internal Revenue Service ("IRS") issued
Notice 94-47. In this Notice, the IRS stated that it was concerned
with a series of transactions in which instruments had been issued
that were "designed to be treated as debt for federal income tax
purposes but as equity for regulatory, rating agency, or financial
accounting purposes." The Notice further stated that "(u)pon
examination, the Service will scrutinize instruments of this type to
determine if their purported status as debt for federal income tax
purposes is appropriate."
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On April 6, 1998, Enron Corp. filed a Petition in the United
States Tax Court contesting the proposed disallowance by the IRS of a
deduction claimed by Enron Corp. relating to interest paid with
respect to certain instruments ("MIPS") issued in 1993 and 1994. The
Tax Court has not rendered an opinion on the deductibility of the
interest paid by Enron Corp. The Capital Securities have certain
characteristics that could be viewed as similar to the MIPS involved
in the Enron Corp. case. There can be no assurance that a Tax Court
opinion in the Enron Corp. case, or any similar case, will not result
in a Tax Event that could result in an early mandatory redemption of
the Trust Securities or the dissolution of the Trust and the
distribution of the Junior Subordinated Debentures as described under
"Description of Capital Securities Redemption or Exchange" herein
and in the accompanying Prospectus.
LIQUIDATION DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
The Corporation has the right at any time, 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 the holders. A liquidation of the Trust will result in
a holder of the Capital Securities receiving directly that holder's
PRO RATA share of the Junior Subordinated Debentures (previously held
indirectly through the Trust). Under current United States federal
income tax law and interpretations of that law, and assuming, as
expected, that the Trust is treated as a grantor trust for United
States 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. If, however, the liquidation of the Trust were to occur
because the Trust is subject to United States 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 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."
POSSIBLE ADVERSE EFFECT ON MARKET PRICES
Neither the Corporation nor the Trust can assure a particular
market price for either the Capital Securities or the Junior
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Subordinated Debentures distributed to the holders of Capital
Securities upon any liquidation or termination of the Trust.
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, a prospective
purchaser of Capital Securities also is making an investment decision
with respect to the Junior Subordinated Debentures and should
carefully review all the information regarding the Junior Subordinated
Debentures contained in this Prospectus Supplement and the
accompanying Prospectus.
EXTENSION OF STATED MATURITY OF JUNIOR SUBORDINATED DEBENTURES
The Corporation has the right to extend the maturity of the
Junior Subordinated Debentures held by the Trust, whether or not the
Trust is terminated and the Junior Subordinated Debentures are
distributed to holders of the Capital Securities, to a date not later
than the 49th anniversary of the initial issuance of the Capital
Securities, PROVIDED that the Corporation can extend the maturity only
if at the time that the election is made and at the time of the
extension (i) the Corporation is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Corporation is not in default in
the payment of any interest or principal of the Junior Subordinated
Debentures, (iii) the Trust is not in default on the payment of
Distributions on the Capital Securities and no deferred Distributions
are accumulated, and (iv) the Junior Subordinated Debentures are rated
not less than BBB- by Standard & Poor's Rating Services or Baa3 by
Moody's Investor Service, Inc. or the equivalent by any other
nationally recognized statistical rating organization.
LIMITED VOTING RIGHTS
Holders of Capital Securities will have limited voting rights
relating only to the modification of the Capital Securities and
certain other matters described in this Prospectus Supplement and the
accompanying Prospectus. 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 Corporation as the
holder of the Common Securities. The Trustees and the Corporation may
amend the Declaration without the consent of holders of the Capital
Securities to ensure that the Trust will be classified as a grantor
trust for United States federal income tax purposes even if that
action adversely affects the interests of the holders. See
"Description of Capital Securities Voting Rights; Amendment of the
Declarations" in the accompanying Prospectus.
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BANK REGULATORY RESTRICTIONS
The Corporation is a legal entity separate and distinct from its
subsidiaries. See "Old Kent Financial Corporation" in the
accompanying Prospectus. There are various legal limitations
governing the extent to which the Corporation's banking subsidiaries
may extend credit, pay dividends or otherwise supply funds to, or
engage in transactions with, the Corporation or certain of its other
subsidiaries. The right of the Corporation to participate in any
distribution of assets of any subsidiary upon its dissolution,
winding-up, liquidation or reorganization or otherwise (and thus the
ability of the holders of Capital Securities to benefit indirectly
from such distribution) would be subject to the prior claims of
creditors of that subsidiary, except to the extent that the
Corporation may itself be a creditor of that subsidiary and its claims
are recognized. Claims against the Corporation's subsidiaries by
creditors other than the Corporation include substantial obligations
with respect to deposit liabilities and federal funds purchased,
securities sold under repurchase agreements, other short-term
borrowing, and various other financial obligations.
Because the Trust is a subsidiary of the Corporation, federal
banking authorities will have the right to examine the Trust and its
activities. Under certain circumstances, including any determination
that the Corporation's relationship to the Trust results in an unsafe
and unsound banking practice, the banking authorities will have the
authority to issue orders which could restrict the ability of the
Trust to make Distributions on or to redeem its Capital Securities.
Under the Financial Institutions Reform, Recovery and Enforcement
Act of 1989 ("FIRREA"), a depositary 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
depositary institution or (ii) any assistance provided by the
FDIC to a commonly controlled FDIC-insured depositary 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 Federal Reserve expects the
Corporation to act as a source of financial strength to its subsidiary
banks and to commit resources to support the banks in circumstances
where it might not do so absent such policy. Any capital loans the
Corporation makes to the banks are subordinate in right of payment to
deposits and to certain other indebtedness of the banks. In the event
of a bank holding company's bankruptcy, the bankruptcy trustee will
S-19
<PAGE>
assume any commitment by the bank holding company to a federal
regulatory agency to maintain the capital of a subsidiary bank at a
certain level and will be 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 that 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
circumstances, a holding company of an undercapitalized bank may be
prohibited from making any capital distribution to its shareholders or
otherwise. As of June 30, 1998, the Corporation's principal banking
subsidiary, Old Kent Bank, met or exceeded the requirements of a
"well-capitalized" institution as prescribed by the rules of Old Kent
Bank's primary federal regulator.
ABSENCE OF PUBLIC MARKET
The Capital Securities will constitute a new issue of securities
with no established trading market. Neither the Corporation nor the
Trust can give any assurance that an active public or other market
will develop for the Capital Securities, and also cannot give any
assurance as to the liquidity of or the trading market for the Capital
Securities. If an active public market does not develop, the market
price and liquidity of the Capital Securities may be adversely
affected.
If a public trading market develops for the Capital Securities,
future trading prices will depend on many factors, including, among
other things, prevailing interest rates, the Corporation's financial
and operating results, and the market for similar securities.
Depending on prevailing interest rates, the market for similar
securities, the financial condition of the Corporation, and other
factors, the Capital Securities may trade at a discount.
The Capital Securities are not listed for trading on any
securities exchange or The NASDAQ Stock Market and the Corporation
does not intend to apply for such listing.
S-20
<PAGE>
OLD KENT CAPITAL TRUST II
The Trust is a statutory business trust formed under the Delaware
Business Trust Act, as amended, pursuant to a declaration of trust (as
amended and restated by the Declaration) and the filing of a
certificate of trust with the Secretary of State of the State of
Delaware. The Corporation will acquire Common Securities in an
aggregate liquidation amount equal to at least 3% of the total assets
of the Trust. The Trust will use all the proceeds derived from the
issuance of the Trust Securities to purchase the Junior Subordinated
Debentures and, accordingly, the assets of the Trust will consist
solely of the 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 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 for the Trust
must have received an opinion of counsel to the effect that the
issuance of the Trust Securities will not affect the Trust's status as
a grantor trust for United States federal income tax purposes.
Pursuant to the Declaration, there will be initially five
trustees (the "Trustees") for the Trust. ________, _________, and
___________, each of whom is an employee or officer of or otherwise
affiliated with the Corporation or its subsidiary Old Kent Bank,
initially will serve as the Regular Trustees for the Trust ("the
Regular Trustees"). The fourth trustee will be a financial
institution that is unaffiliated with the Corporation (the "Property
Trustee"). The fifth trustee will be an entity that maintains its
principal place of business in the State of Delaware (the "Delaware
Trustee"). Initially, Bankers Trust Company will act as Property
Trustee, and its affiliate, Bankers Trust (Delaware), will act as
Delaware Trustee until, in each case, removed or replaced by the
Corporation as the holder of the Common Securities. Bankers Trust
Company also will act as trustee under the Guarantee (the "Guarantee
Trustee") and trustee under the Indenture (the "Indenture Trustee").
The Property Trustee will hold title to the Junior Subordinated
Debentures for the benefit of the Trust and the holders of the Trust
Securities, and the Property Trustee will have the power to exercise
all rights, powers and privileges with respect to the Junior
Subordinated Debentures under the Indenture as the holder of the
Junior Subordinated Debentures. In addition, the Property Trustee
will maintain exclusive control of a segregated non-interest bearing
bank account (the "Property Account") to hold all payments made in
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<PAGE>
respect of the Junior Subordinated Debentures for the benefit of the
holders of the Trust Securities. The Guarantee Trustee will hold the
Guarantee for the benefit of the holders of the Capital Securities.
The Corporation as the holder of all the Common Securities will have
the right to appoint, remove or replace any of the Trustees and to
increase or decrease the number of Trustees, PROVIDED there will
always be a Delaware Trustee, a Property Trustee and a Regular
Trustee.
Under the Indenture, the Corporation, 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 Capital
Securities Expenses and Taxes" in the accompanying Prospectus.
For so long as the Capital Securities remain outstanding, the
Corporation has agreed (i) to maintain directly or indirectly 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 to be terminated, except as permitted by the 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 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 United States 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 and the Trust Indenture Act. See
"Description of Capital Securities" herein and in the accompanying
Prospectus. The Declaration 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, One Vandenberg Center, 111 Lyon
Street, N.W., Grand Rapids, MI 49503, Attention: Secretary, telephone
number (616) 771-5272.
It is anticipated that the Trust will not be subject to the
reporting requirements under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
S-22
<PAGE>
OLD KENT FINANCIAL CORPORATION
Old Kent is a Michigan business corporation registered as a bank
holding company. Old Kent has its headquarters in Grand Rapids,
Michigan, and conducts the business of commercial banking through Old
Kent Bank, its wholly owned principal banking subsidiary with banking
offices in Michigan and Illinois, and through Old Kent Bank, National
Association, also a wholly owned subsidiary. Old Kent also wholly
owns, directly or indirectly, various operating nonbank subsidiaries
offering various financial and fiduciary products and services through
offices located in Michigan , Illinois and other states. Old Kent's
common stock is traded on The NASDAQ Stock Market under the symbol
OKEN. Old Kent's principal executive office is located at One
Vandenberg Center, 111 Lyon Street, N.W., Grand Rapids, Michigan
49503. Its telephone number is (616) 771-5000.
RECENT DEVELOPMENTS
[Text to be provided based on any previously unreported recent
developments as of the date of this Prospectus Supplement.]
PURPOSE OF THE OFFERING
The primary purpose of the offering is to further strengthen the
Corporation's regulatory capital position. Because of regulatory
capital requirements, the level of assets that the Corporation may
maintain is limited by the level of regulatory capital. An increase
in the Corporation's regulatory capital, which would result from the
offering, would support an expansion of the Corporation's assets,
regardless of the immediate application of the cash proceeds of the
offering.
All of the proceeds from the sale of Capital Securities will be
invested by the Trust in Junior Subordinated Debentures. The
Corporation expects to use the proceeds from the sale of the Junior
Subordinated Debentures for general corporate purposes, which may
include the repayment of indebtedness, investments in or extensions of
credit to its subsidiaries and the financing of possible acquisitions.
The Corporation engages on a regular basis in discussions regarding
the potential acquisition of branches, deposits and other financial
institutions. Pending that use, the net proceeds may be temporarily
invested in short-term obligations. The Corporation reserves the
right to change the use of the proceeds. The precise amounts and
timing of the application of proceeds will depend upon the funding
requirements of the Corporation and its subsidiaries and the
availability of other funds. The Corporation may engage in other
financings in the future.
S-23
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The Corporation's consolidated ratios of earnings to fixed
charges for each of the periods indicated are set forth below:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
---------------- ----------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits 3.15 4.31 3.75 4.39 4.04 6.32 9.96
Including Interest on Deposits 1.57 1.59 1.55 1.53 1.50 1.68 1.75
</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.
S-24
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of
the Corporation and its subsidiaries and certain ratios as of March 31,
1998, and as adjusted to give effect to the consummation of the
offering of the Capital Securities. The following data should be read
in conjunction with the consolidated financial statements and related
notes of the Corporation and its subsidiaries incorporated herein by
reference.
<TABLE>
<CAPTION>
---------------------------------------
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 the Corporation's
Junior Subordinated Debentures due 2027 . . . . . . . . . . . . . 100,000 100,000
Guaranteed preferred beneficial interests in the Corporation's Junior
Subordinated Debentures due _____ <F1>. . . . . . . . . . . . . . -- 200,000
Shareholders' equity:
Preferred stock: 25,000,000 shares authorized and unissued. . . . -- --
Common stock, par value $1.00; 300,000,000 shares authorized;
__________ issued and outstanding. . . . . . . . . . . . . . . 91,548 91,548
Capital surplus . . . . . . . . . . . . . . . . . . . . . . . . . 154,111 154,111
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . . 757,864 757,864
--------- ---------
Total common stock, capital surplus and retained earnings . . . . 1,003,523 1,003,523
Unrealized gains (losses) on securities available-for-sale. . . . 4,796 4,796
--------- ---------
Total Shareholders' Equity . . . . . . . . . . . . . . . . . . 1,008,319 1,008,319
--------- ---------
Total Capitalization . . . . . . . . . . . . . . . . . . . . $1,208,319 $1,408,319
========= =========
Risk-based capital ratios:
Tier 1 capital to risk-adjusted assets <F2> . . . . . . . . . . . 9.16% 11.03%
Regulatory "well capitalized" tier 1 ratio. . . . . . . . . . . . 6% 6%
Regulatory minimum. . . . . . . . . . . . . . . . . . . . . . . . 4% 4%
Total capital to risk-adjusted assets <F2>. . . . . . . . . . . . 11.35% 12.55%
Regulatory "well capitalized" total capital ratio . . . . . . . . 10% 10%
Regulatory minimum. . . . . . . . . . . . . . . . . . . . . . . . 8% 8%
Leverage ratio. . . . . . . . . . . . . . . . . . . . . . . . . . 7.11% 9.28%
Regulatory "well capitalized" leverage ratio. . . . . . . . . . . 5% 5%
Regulatory minimum. . . . . . . . . . . . . . . . . . . . . . . . 3% 3%
S-25
<PAGE>
<FN>
_________________
<F1> As described herein, the sole assets of the Trusts will be
$200,000,000 aggregate principal amount of Junior
Subordinated Debentures issued by the Corporation to the
Trust. The Junior Subordinated Debentures will bear
interest at a [variable] rate equal to ____________ and will
mature on ____________, ____. The Corporation will own all
of the Common Securities of the Trust.
<F2> Assumes the net proceeds of this offering are initially
invested in assets with a 100% risk weighting under the
risk-based capital rules of the Federal Reserve.
</FN>
</TABLE>
S-26
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected historical consolidated financial
information for the Corporation as of and for the periods indicated below. The
summary consolidated financial data as of and for the five years ended December
31, 1997 were derived from the audited consolidated financial statements of the
Corporation incorporated herein by reference. The selected consolidated finan-
cial data should be read in conjunction with the Corporation's audited financial
statements contained in the Corporation's Annual Report on Form 10-K for the
year ended December 31, 1997. The selected consolidated financial data as of and
for the six months ended June 30, 1998 and 1997 are unaudited and include all
adjustments consisting only of normal recurring accruals that, in the opinion
of management, are necessary for a fair statement of results for those periods.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEARS ENDED DECEMBER 31,
---------------- ------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OPERATIONS:
Interest income . . . . . . . . . . . $ 524,198 $ 500,306 $ 1,021,269 $ 947,307 $ 909,819 $ 759,186 $ 692,151
Interest expense. . . . . . . . . . . 257,998 239,925 495,342 453,019 433,126 303,551 264,564
----------- ----------- ----------- ----------- ------------ ----------- -----------
Net interest income . . . . . . . . . 266,200 260,381 525,927 494,288 476,693 455,635 427,587
Provision for credit losses . . . . . 26,439 21,962 45,677 35,236 21,666 22,465 34,822
----------- ----------- ----------- ----------- ------------ ----------- -----------
Net interest income after
provision for credit losses . . . . 239,761 238,419 480,250 459,052 455,027 433,170 392,765
Other income. . . . . . . . . . . . . 170,186 142,473 284,423 212,164 161,718 136,010 134,531
Other expense . . . . . . . . . . . . 262,765 238,875 490,788 432,494 402,132 363,478 328,998
----------- ----------- ----------- ----------- ------------ ----------- -----------
Income before income tax
expense. . . . . . . . . . . . . . 147,182 142,017 273,885 238,722 214,613 205,702 198,298
Income tax expense. . . . . . . . . . 51,053 48,202 93,581 80,021 72,799 68,618 66,974
----------- ----------- ----------- ----------- ------------ ----------- -----------
Net income. . . . . . . . . . . . . . $ 96,129 $ 93,815 $ 180,304 $ 158,701 $ 141,814 $ 137,084 $ 131,324
=========== =========== =========== =========== ============ =========== ===========
CONSOLIDATED AVERAGE BALANCES:
Total assets. . . . . . . . . . . . . $13,961,749 $13,013,850 $13,298,246 $12,251,860 $11,674,214 $10,761,022 $ 9,718,875
Loans . . . . . . . . . . . . . . . . 8,254,610 8,363,809 8,419,267 7,795,771 7,230,657 6,060,822 5,216,229
Deposits. . . . . . . . . . . . . . . 10,324,833 10,232,575 10,268,402 9,762,694 9,317,428 8,805,055 8,064,628
Subordinated debt . . . . . . . . . . 100,000 100,000 100,000 100,000 12,603 -- 5,028
Guaranteed preferred beneficial
interest in the Corporation's
junior subordinated debentures. 100,000 100,000 100,000 -- -- -- --
Total shareholders' equity <F1> . . 991,284 1,014,651 1,027,100 1,000,841 960,858 884,415 802,016
</TABLE>
S-27
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEARS ENDED DECEMBER 31,
---------------- ------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED RATIOS:
Return on average assets<F2> . . . . 1.38% 1.44% 1.36% 1.30% 1.21% 1.27% 1.35%
Return on average equity<F2> . . . . 19.39 18.49 17.55 15.86 14.76 15.50 16.37
Average equity to average
assets<F2>. . . . . . . . . . . . 7.10 7.80 7.72 8.17 8.23 8.22 8.25
Period end capital to risk
adjusted assets<F3>:
Tier 1 . . . . . . . . . . . . . 9.16 <F5> 10.56 9.52 9.45 10.59 10.84 12.61
Total. . . . . . . . . . . . . . 11.35 <F5> 12.84 11.73 11.75 13.01 12.11 13.87
Period end Tier 1 leverage
ratio <F3>. . . . . . . . . . . . 7.11 <F5> 7.94 7.37 7.31 7.88 7.30 7.78
Average net interest margin 4.21 4.40 4.34 4.41 4.46 4.63 4.82
Net Charge-offs to
average loans. . . . . . . . . . .47 .62 .58 0.54 0.19 0.16 0.33
Impaired loans to loans <F4> . . . . .85 .55 .65 0.53 0.58 0.88 1.12
Allowance to loans. . . . . . . . . 2.01 1.88 1.86 2.05 2.35 2.44 2.72
Allowance to impaired
loans<F4> . . . . . . . . . . . . 237 342 288 388 403 277 243
<FN>
____________________
<F1> Average total shareholders' equity includes average net
unrealized gains (losses) on investment securities available
for sale.
<F2> Average assets include average unrealized gains (losses) on
investment securities available for sale.
<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.
<F5> As of March 31, 1998.
</FN>
</TABLE>
S-28
<PAGE>
DESCRIPTION OF CAPITAL SECURITIES
GENERAL
The following summary of certain terms and provisions of the
Capital Securities supplements the description of the terms and
provisions of the Capital Securities set forth in the accompanying
Prospectus under the heading "Description of Capital Securities," to
which description reference is hereby made. This summary of certain
terms and provisions of the Capital Securities does not purport to be
complete and is subject to, and is qualified in its entirety by
reference to, the Declaration and the Trust Indenture Act. The form
of the Declaration has been filed as an exhibit to the Registration
Statement of which this Prospectus Supplement and accompanying
Prospectus form a part.
DISTRIBUTIONS
The 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. Distributions on each Capital Security will be payable
at a [variable] annual rate equal to _______________, payable
quarterly in arrears on [March 31, June 30, September 30 and
December 31] of each year. Distributions will accumulate from the date
of original issuance and will commence on ________, ____. The amount
of Distributions payable for any period less than a full Distribution
period will be computed on the basis of a 360-day year of twelve 30-day
months and the actual days elapsed in a partial month in a period.
Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by four.
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 the 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 Junior Subordinated Debentures" herein and in the accompanying
Prospectus. If the Corporation 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 Corporation 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
S-29
<PAGE>
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 Subordinated Debentures. As a
consequence of any extension, quarterly Distributions on the Capital
Securities will be deferred by the Trust during the Extension Period.
Distributions to which holders of the Capital Securities are entitled
will accumulate and compound quarterly at a [variable] annual rate
equal to ______________. The term "Distributions" as used herein
includes any compounded amounts unless the context otherwise requires.
During any Extension Period, the Corporation may not, and may not
permit any subsidiary of the Corporation 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 Corporation'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
Corporation that rank PARI PASSU with or junior to the Junior
Subordinated Debentures or make any guarantee payments with respect to
any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation 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 Corporation 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 Corporation's capital stock
(or any capital stock of a subsidiary of the Corporation) for any
other class or series of the Corporation's capital stock or of any
class or series of the Corporation's indebtedness for any class or
series of the Corporation's capital stock, (C) the purchase of
fractional interests in shares of the Corporation'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
Extension Period, the Corporation 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 Corporation may elect to begin a new Extension Period subject to
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<PAGE>
the foregoing requirements. See "Description of Junior Subordinated
Debentures Option to Extend Interest Payment Period" in the
accompanying Prospectus. The Corporation has no current intention of
exercising its right to defer payments of interest by extending the
interest payment period of the Junior Subordinated Debentures.
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, in each case 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" means 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 will 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 the Capital Securities are registered on the
relevant record date, and the defaulted Distribution will instead be
payable to the person in whose name the Capital Securities are
registered on the special record date or other specified date
determined in accordance with the Declaration.
REDEMPTION OR EXCHANGE
Unless a Special Event has occurred, the Junior Subordinated
Debentures are not be redeemable prior to ______________, ____. After
that date, the Corporation will have the right at any time, subject to
receipt of any necessary prior approval of the Federal Reserve, to
redeem, in whole or in part, the Junior Subordinated Debentures. Upon
the repayment or redemption, in whole or in part, of the Junior
Subordinated Debentures, whether at Stated Maturity (which may be
shortened or extended as provided herein) or upon earlier redemption
as provided in the Indenture, the proceeds from the repayment or
redemption will 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
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repaid or redeemed, then the proceeds from the repayment or redemption
will be allocated PRO RATA to the repayment or redemption of the
Capital Securities and the Common Securities. See "Description of
Capital Securities Subordination of Common Securities" herein and in
the accompanying Prospectus.
If a Special Event has occurred and is continuing, the
Corporation will have the right, subject to receipt of any necessary
prior approval of the Federal Reserve, to either (i) redeem within 120
days following the occurrence of the Special Event the Junior
Subordinated Debentures on the Redemption Date in whole (but not in
part) and thereby cause a mandatory redemption of the Capital
Securities in whole (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. In addition, the
Corporation will have the right at any time, subject to the receipt of
any necessary prior approval of the Federal Reserve, to dissolve the
Trust and distribute the Junior Subordinated Debentures as described
in clause (ii) above. Under current United States 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 a Special Event occurs and the Corporation does not elect
either option described in clause (i) or (ii) 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 Corporation will
be obligated to pay any additional taxes, duties, assessments and
other governmental charges (other than withholding taxes) to which the
Trust becomes subject as a result of the Tax Event.
REDEMPTION PROCEDURES
Capital Securities redeemed on each Redemption Date will 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
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the Capital Securities will be made and the Redemption Price will be
payable on each Redemption Date only to the extent that the Trust has
sufficient funds available for the payment of the Redemption Price.
See "Description of Capital Securities Subordination of Common
Securities" herein and in the accompanying Prospectus.
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 by or on behalf of
DTC or its nominee and will give DTC irrevocable instructions and
authority to pay the Redemption Price to the holders of the Capital
Securities. See "Book-Entry Issuance" in the accompanying Prospectus.
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 the holders
thereof upon surrender of their certificates evidencing the Capital
Securities. If notice of redemption is given and funds deposited as
required, then upon the date of the 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 the Redemption Price, and
such Capital Securities will cease to be outstanding. If any date
fixed for redemption of Capital Securities is not a Business Day, then
payment of the Redemption Price payable on that date will be made on
the next succeeding day which is a Business Day (and without any
interest or other payment in respect of the delay), except that, if
such Business Day falls in the next calendar year, the 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. If 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 Corporation
pursuant to the Guarantee as described under "Description of
Guarantee" in the accompanying Prospectus, 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 the 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
will be payable to the holders of that Capital Security on the
relevant record dates for the related Distribution Dates.
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Subject to applicable law (including United States federal
securities law) and to the provisions of the Declaration, the
Corporation 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 before 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
the Capital Securities and Common Securities to be redeemed will 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 in the accompanying Prospectus under
"Book-Entry Issuance." If not, the particular Capital Securities to be
redeemed will 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 any method that the Property Trustee deems fair and appropriate and
that may provide for the selection for redemption of portions (equal
to $1,000.00 or an integral multiple of $1,000.00 in excess thereof)
of the liquidation amount of Capital Securities of a denomination
larger than $1,000.00. The Property Trustee will 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
purposes of the Declaration, unless the context otherwise requires,
all provisions relating to the redemption of Capital Securities will
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 that 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, will be
made PRO RATA based on the liquidation amount of the Capital
Securities and Common Securities; PROVIDED, HOWEVER, that if on any
Distribution Date or Redemption Date an Indenture Event of Default has
occurred and is 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 the Common Securities, will 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 the Redemption Price on all of the outstanding Capital
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Securities then called for redemption, has been made or provided for,
and all funds available to the Property Trustee will be applied first
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, the Trust will automatically
dissolve upon expiration of its term and will dissolve on the first to
occur of: (i) certain events of bankruptcy, dissolution or liquidation
of the Corporation 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 Corporation or the Trust.
If an early dissolution occurs as described in clause (i),
(ii) or (iv) above, the Trust will 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 the distribution is determined by the
Property Trustee not to be practicable, in which event the 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 the aggregate of the liquidation amount plus accrued and unpaid
Distributions thereon to the date of payment (the "Liquidation
Distribution"). If 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 Capital Securities and Common Securities will
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 will 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
the distribution and (iii) any certificates representing Capital
Securities held in certificated form will be deemed to represent
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Junior Subordinated Debentures having an aggregate principal amount
equal to the liquidation amount of the Capital Securities, and bearing
accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on the Capital Securities until the certificates
are presented for cancellation, upon which the Corporation will issue
to the holder, and the Indenture Trustee will authenticate, a
certificate representing the Junior Subordinated Debentures.
Under current United States federal income tax law and
interpretations 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, a
Tax Event or other circumstances, however, the distribution could be a
taxable event to holders of the Capital Securities. See "Certain
Federal Income Tax Consequences Distribution of Junior Subordinated
Debentures to Holders of Capital Securities."
The amount payable on the Capital Securities in the event of any
liquidation of the Trust is $1,000.00 per Capital Security plus
accumulated and unpaid Distributions, which may be in the form of a
distribution of that amount in Junior Subordinated Debentures, subject
to certain exceptions.
REGISTRATION OF CAPITAL SECURITIES
The Capital Securities will be represented by global certificates
registered in the name of DTC or its nominee. Beneficial interests in
the Capital Securities will be shown on, and transfers thereof will be
effected only through, records maintained by participants in DTC.
Except as described below and in the accompanying Prospectus, Capital
Securities in certificated form will not be issued in exchange for the
global certificates. See "Book-Entry Issuance" in the accompanying
Prospectus.
A global security will be exchangeable for Capital Securities
registered in the names of persons other than DTC or its nominee only
if (i) DTC notifies the Corporation that it is unwilling or unable to
continue as a depositary for the global security and no successor
depositary has been appointed, or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act at a time when DTC
is required to be so registered to act as the depositary, (ii) the
Corporation in its sole discretion determines that the global security
will be so exchangeable or (iii) there has occurred and is continuing
an Event of Default under the Indenture with respect to the Junior
Subordinated Debentures. Any global security that is exchangeable
pursuant to the preceding sentence will be exchangeable for definitive
certificates registered in any names as DTC may direct. It is
expected that DTC's instructions will be based upon directions
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received by DTC from its Participants with respect to ownership of
beneficial interest in the global security. If Capital Securities are
issued in definitive form, the Capital Securities will be in
denominations of $1,000.00 and integral multiples thereof and may be
transferred or exchanged at the offices described below.
Payments on Capital Securities represented by a global security
will be made to DTC, as the depositary for the Capital Securities. If
Capital Securities are issued in definitive form, the Redemption Price
and Distributions will be payable, the transfer of the Capital
Securities will be registrable, and Capital Securities will be
exchangeable for Capital Securities of other denominations of a like
aggregate liquidation amount, at the corporate trust office of the
Property Trustee in New York, New York, or at the offices of any
paying agent of transfer agent appointed by the Regular Trustees,
PROVIDED that payment of any Distribution may be made at the option of
the Regular Trustees by check mailed to the address of the persons
entitled thereto or by wire transfer. In addition, if the Capital
Securities are issued in certificated form, the record dates for
payment of Distributions will be the 15th day of the last month of
each calendar quarter. For a description of DTC and the terms of the
depositary arrangements relating to payments, transfers, voting
rights, redemptions and other notices and other matters, see "Book-Entry
Issuance" in the accompanying Prospectus.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
GENERAL
The following summary of certain provisions of the Junior
Subordinated Debentures supplements the description of the terms and
provisions of the Junior Subordinated Debentures set forth in the
accompanying Prospectus under the heading "Description of Junior
Subordinated Debentures," to which description reference is hereby
made. The following summary does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the
Indenture and the Trust Indenture Act. The form of Indenture has been
filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and accompanying Prospectus form a part.
Concurrently with the issuance of the Capital Securities, the
Trust will invest the proceeds thereof, together with the
consideration paid by the Corporation for the Common Securities, in
the Junior Subordinated Debentures issued by the Corporation.
The Junior Subordinated Debentures are and will be in the
principal amount equal to the aggregate liquidation amount of the
Capital Securities plus the Corporation's concurrent investment in the
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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 from ______________,
____, at a [variable] annual rate equal to ______________________,
payable quarterly in arrears on [March 31, June 30, September 30 and
December 31] of each year (each, an "Interest Payment Date"),
commencing ______, ____, 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
less than a full interest period will be computed on the basis of a
360-day year of twelve 30-day months and the actual days elapsed in a
partial month in a period. The amount of any interest payable for any
full interest period will be computed by dividing the per annum rate
by four. 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 that date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of the delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on 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 applicable law) at a
[variable] annual rate equal to _________________. The term "interest"
as used herein will include quarterly interest payments and to the
extent permitted by applicable law, interest on quarterly interest
payments not paid on the applicable Interest Payment Date, as
applicable, as well as any Additional Sums (as defined herein).
The Junior Subordinated Debentures will be issued as a series of
junior subordinated debentures under the Indenture. The Junior
Subordinated Debentures will mature on ________________, ____. The
Corporation has the right to shorten that date at any time to a date
not earlier than ___________, ____, subject to receipt of any
necessary prior approval of the Federal Reserve. In addition, the
Corporation has the right to extend that date at any time to a date
not later than ____________, ____, PROVIDED that the Corporation can
extend the date only if at the time that the election is made and the
time of the extension (i) the Corporation is not in bankruptcy,
otherwise insolvent or in liquidation, (ii) the Corporation is not in
default in the payment of any interest or principal of the Junior
Subordinated Debentures, (iii) the Trust is not in default on the
payment of Distributions on the Capital Securities and no deferred
Distributions are accumulated and (iv) the Junior Subordinated
Debentures are rated not less than BBB- by Standard & Poor's Rating
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Services or Baa3 by Moody's Investor Service, Inc. or the equivalent
by any other nationally recognized statistical rating organization.
If the Corporation elects to shorten or extend the Stated Maturity of
the Junior Subordinated Debentures, it will give notice to the
Property Trustee, who will in turn give notice to the holders of the
Capital Securities not less than 30 and not more than 90 days before
the effectiveness thereof.
The Junior Subordinated Debentures will be unsecured and will
rank junior and be subordinate in right of payment to all Indebtedness
of the Corporation. The Indenture does not limit the incurrence or
issuance of other secured or unsecured debt of the Corporation,
whether under the Indenture or any other indenture that the
Corporation has entered into or may enter into in the future or
otherwise. See "Description of Junior Subordinated
Debentures Subordination" in the accompanying Prospectus.
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 Corporation that may
adversely affect holders of the Junior Subordinated Debentures.
[INTEREST]
[if applicable, describe variable rate formula]
ADDITIONAL SUMS
If a Tax Event has occurred and is continuing and the Trust is
required to pay any taxes, duties, assessments or governmental charges
of whatever nature (other than withholding taxes) imposed by the
United States, or any other taxing authority, then, in any such case,
the Corporation will pay as additional interest ("Additional Sums")
any additional amounts necessary so that the net amounts received and
retained by the Trust after paying any such taxes, duties, assessments
or other governmental charges will be not less than the amounts that
the Trust would have received had it not been subject to such taxes,
duties, assessments or other governmental charges as a result of the
Tax Event.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Indenture Event of Default has occurred and is
continuing, the Corporation 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
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Period, PROVIDED that no Extension Period may end on a date other than
an Interest Payment Date or extend beyond the Stated Maturity of the
Junior Subordinated Debentures. At the end of the Extension Period,
the Corporation must pay all interest then accrued and unpaid
(together with interest thereon at a [variable] annual rate equal to
_______________, 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 United States
federal income tax purposes. See "Certain United States Federal Income
Tax Consequences Interest Income and Original Issue Discount."
During any Extension Period, the Corporation may not, and may not
permit any subsidiary of the Corporation 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 Corporation'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
Corporation 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 Corporation of the debt securities of
any subsidiary of the Corporation if the 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 Corporation 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 Corporation's capital stock
(or any capital stock of a subsidiary of the Corporation) for any
other class or series of the Corporation's capital stock or of any
class or series of the Corporation's indebtedness for any class or
series of the Corporation's capital stock, (C) the purchase of
fractional interests in shares of the Corporation'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
Extension Period, the Corporation 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
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Subordinated Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due on any Interest Payment Date,
the Corporation may elect to begin a new Extension Period subject to
the above requirements. No interest will be due and payable during an
Extension Period, except at the end thereof. The Corporation must give
the Property Trustee, the Regular Trustees and the Indenture Trustee
notice of its election of each Extension Period not less than one
Business Day prior to the record date. The Property Trustee will give
notice of the Corporation'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
________________, ____, unless a Special Event has occurred. The
Junior Subordinated Debentures are redeemable prior to maturity at the
option of the Corporation, subject to the receipt of any necessary
prior approval of the Federal Reserve, (i) on or after
________________, ____, 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
the same 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 Capital
Securities Redemption or Exchange" and " Redemption Procedures"
herein and in the accompanying Prospectus.
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 the holder's registered
address. Unless the Corporation defaults in payment of the redemption
price, on and after the Redemption Date interest ceases to accrue on
the Junior Subordinated Debentures or portions thereof called for
redemption.
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.
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DTC, or any successor depositary, will act as depositary for the
global securities. It is anticipated that the depositary arrangements
for the 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" in
the accompanying Prospectus.
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.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In the opinion of Warner Norcross & Judd LLP, in its capacity as
tax counsel to the Corporation and the Trust ("Tax Counsel"), the
following summary accurately describes the material United States
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 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 created or organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate
the income of which is subject to United States 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 or (v) a partnership to the extent the
interests therein are owned by any of the persons described in clauses
(i), (ii), (iii) or (iv) above. 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,
tax-exempt investors or foreign entities. 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 Internal Revenue Code of 1986, as amended (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
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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 should be sustained by a court with jurisdiction in a properly
presented case.
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 CAPITAL SECURITIES REDEMPTION
OR EXCHANGE" IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Capital Securities in the
Offer, Tax Counsel is of the opinion that under current law and
assuming full compliance with the terms of the Declaration and other
documents, the Trust will be classified as a grantor trust and will
not be taxable as a corporation for United States federal income tax
purposes. Accordingly, for United States 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 Corporation, 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 United States federal income tax purposes. In
connection with the issuance of the Junior Subordinated Debentures in
the 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 United States federal income tax purposes. No assurance can be
given, however, that the IRS will not challenge such position or, if
challenged, that such a challenge will not be successful. The
remainder of this discussion assumes that the Junior Subordinated
Debentures will be treated as indebtedness of the Corporation for
United States federal income tax purposes.
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<PAGE>
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 the holder's regular method of tax accounting.
If, however, the Corporation exercises its right to defer
payments of interest on the Junior Subordinated Debentures, the Junior
Subordinated Debentures will become OID instruments at the 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
Corporation will not pay the 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 the 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 the holder's tax basis in the Capital Security,
and the amount of Distributions received by the holder in respect of
the accrued OID will reduce the tax basis of the 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 Corporation
exercises its option to defer payments of interest on such debentures,
all holders of Capital Securities would be required to include the
stated interest in income on a daily economic accrual basis as
described above.
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<PAGE>
Corporate holders of Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized by
those holders with respect to the Capital Securities.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON
LIQUIDATION OF THE TRUST
As described under the caption "Description of Junior
Subordinated Debentures Distribution of Junior Subordinated
Debentures; Book-Entry Issuance" herein and in the accompanying
Prospectus, Junior Subordinated Debentures may be distributed to
holders in exchange for the Capital Securities and in liquidation of
the Trust. Under current law, the distribution would be non-taxable,
and would 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 the distribution. If, however, the
liquidation of the Trust were to occur because the Trust is subject to
United States 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
Capital Securities Redemption or Exchange" herein and in the
accompanying Prospectus), the Junior Subordinated Debentures may be
redeemed for cash, with the proceeds of the redemption distributed to
holders in redemption of their Capital Securities. Under current law,
the redemption would constitute a taxable disposition of the redeemed
Capital Securities for United States federal income tax purposes, and
a holder would recognize gain or loss as if it sold the redeemed
Capital Securities for cash. See " Sales of Capital Securities"
below.
SALES OF CAPITAL SECURITIES
A holder that sells Capital Securities will recognize gain or
loss equal to the difference between the amount realized by the holder
on the sale of the Capital Securities (except to the extent that the
amount realized is characterized as a payment in respect of accrued
but unpaid interest on the 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.
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<PAGE>
NON-U.S. HOLDERS
As used herein, the term "Non-U.S. Holder" means any person that
is not a U.S. Holder. 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 United States federal income tax law, and
subject to the discussion below concerning backup withholding:
(i) no withholding of United States federal income tax will be
required with respect to the payment by the Trust (or the Corporation)
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 Corporation 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 Corporation through stock ownership, (C) the Beneficial
Owner is not a bank 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 United States 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 the Beneficial 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. Currently, these requirements will be met if (1) the
Beneficial Owner provides its 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. Under recently finalized Treasury regulations
(the "Final Regulations"), the statement requirement referred to in
(i)(D) above may also be satisfied with other documentary evidence for
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<PAGE>
interest paid after December 31, 1999 with respect to an offshore
account or through certain foreign intermediaries.
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 Corporation 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. Under the Final Regulations, Non-United States Holders
generally will be required to provide an IRS Form W-8 in lieu of an
IRS Form 1001 or an IRS Form 4224, although alternative documentation
may be applicable in certain situations and certain forms and
statements in effect on certain dates during the transition period
described in Notice 98-16, I.R.B. 1998-15 (March 27, 1998), may expire
and become ineffective, thus requiring the filing of new replacement
certificates or statements.
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 the trade or business, the Non-U.S. Holder, although
exempt from the withholding tax discussed above, will be subject to
United States federal income tax on that interest income on a net
income basis in the same manner as if it were a U.S. Holder. In
addition, if the 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, the interest income would be included
in the foreign corporation's earnings and profits.
Any gain realized by a Non-U.S. Holder upon the sale or other
disposition of the Capital Securities (or the Junior Subordinated
Debentures) generally will not be subject to United States federal
income tax unless (1) the 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, the individual is
present in the United States for 183 days or more in the taxable year
of the sale, exchange or retirement, and certain other conditions are
met, or (3) in the case of any gain representing accrued interest on
the Junior Subordinated Debentures, the "portfolio interest" described
above are not satisfied.
S-47
<PAGE>
HOLDERS SHOULD CONSULT NOTICE 98-16 AND THEIR OWN TAX ADVISORS
ABOUT THE NEW RULES CONCERNING WITHHOLDING ON NON-UNITED STATES
HOLDERS AND THE RELATED TRANSITION RULES.
INFORMATION REPORTING AND BACKUP WITHHOLDING
The amount of interest (including 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 the holders and
to the IRS. The Property Trustee currently intends to deliver these
reports to holders of record before January 31 after 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 (including 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 the
number is correct, certifies as to no loss of exemption from backup
withholding and meets certain other conditions.
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, the nominee,
custodian, agent or broker is, for United States 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,
the payments will not be subject to backup withholding but will be
subject to information reporting, unless (1) the 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 United States office of a broker is subject to
information reporting and backup withholding unless the holder or
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<PAGE>
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 the holder's United States federal income tax
liability, but only if the required information is furnished to the
IRS.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE
IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE
DEPENDING UPON A HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD
CONSULT THEIR 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.
UNDERWRITING
Subject to the terms and conditions set forth in the underwriting
agreement (the "Underwriting Agreement"), the Corporation and the
Trust have agreed that the Trust will sell to each of the Underwriters
named below, and each of the Underwriters, for whom _______________
[is] [are] acting as representative[s] (the "Representative[s]"), has
severally agreed to purchase from the Trust, the respective number of
Capital Securities set forth opposite its name below.
<TABLE>
<CAPTION>
Number
Of
Capital
Underwriter Securities
- --------------------------------------------------- ----------
<S> <C>
[insert name[s] of Representative[s]] . . . . . . . . . . . .
[insert names of other Underwriters] . . . . . . . . . . . . .
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . .
===========
</TABLE>
In the Underwriting Agreement, the several Underwriters have
agreed, subject to the terms and conditions set forth therein, to
purchase all the Capital Securities offered hereby if any of the
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<PAGE>
Capital Securities are purchased. If an Underwriter defaults, the
Underwriting Agreement provides that, in certain circumstances, the
purchase commitments of the nondefaulting Underwriters may be
increased or the Underwriting Agreement may be terminated.
The Underwriting Agreement provides that the obligations of the
several Underwriters to pay for and accept delivery of the Capital
Securities are subject to the approval of certain legal matters by
their counsel and to certain other conditions. The Underwriters are
committed to take and pay for all of the Capital Securities if any are
taken.
The Corporation estimates the various expenses relating to the
issuance and distribution of the Capital Securities, other than
underwriting compensation described below, to be approximately
$290,000. The Corporation has agreed to pay these expenses
and the underwriting compensation in view of the fact that the
proceeds of the sale of the Capital Securities will be used to
purchase the Junior Subordinated Debentures.
The following table sets forth the aggregate compensation to be
paid to the Underwriters in connection with the issuance and
distribution of the Capital Securities:
<TABLE>
<CAPTION>
COMMISSION PER CAPITAL SECURITY TOTAL COMMISSION
------------------------------- ----------------
<S> <C> <C>
$__________ $__________
</TABLE>
The Underwriters propose initially to offer the Capital
Securities to the public at the public offering price set forth on the
cover page of this Prospectus Supplement and to certain dealers at
that price less a concession not in excess of $_________ per Capital
Security. The Underwriters may allow, and the dealers may reallow, a
discount not in excess of $___________ per Capital Security to certain
other dealers. After the initial public offering, the public offering
price, concession and discount may be changed.
During a period of 30 days from the date of this Prospectus
Supplement, neither the Trust nor the Corporation will, without the
prior written consent of the Representative[s], directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Capital Securities, any security convertible
into or exchangeable into or exercisable for Capital Securities or
Junior Subordinated Debentures or any debt securities substantially
similar to the Junior Subordinated Debentures or equity securities
substantially similar to the Capital Securities (except for the Junior
Subordinated Debentures and the Capital Securities offered hereby).
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<PAGE>
The Capital Securities are a new issue of securities with no
established trading market. The Trust does not intend to apply for
listing of the Capital Securities on any securities exchange. [The
Corporation has been advised by the Underwriters that they presently
intend to make a market in the Capital Securities as permitted by
applicable laws and regulations. The Underwriters are not obligated,
however, to make a market in the Capital Securities and any market
making may be discontinued at any time at the sole discretion of the
Underwriters.] No assurance can be given as to the liquidity of, or
trading markets for, the Capital Securities.
In connections with this offering, the underwriters may
over-allot or effect transactions which stabilize or maintain
the market price of the Capital Securities at a level above that
which might otherwise prevail in the open market. Such
transactions may be effected in the over the counter market
or otherwise. Such stabilizing, if commenced, may be discontinued
at any time.
The Corporation and the Trust have agreed to indemnify the
several Underwriters against, or contribute to payments that the
Underwriters may be required to make in respect of, certain
liabilities, including liabilities under the Securities Act of 1933,
as amended.
Certain of the Underwriters or their affiliates have provided
from time to time, and expect to provide in the future, investment or
commercial banking services to the Corporation and its affiliates, for
which these Underwriters or their affiliates have received or will
receive customary fees and commissions.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the
Capital Securities will be passed upon for the Trust by Richards,
Layton & Finger, Wilmington, Delaware. The validity of the Junior
Subordinated Debentures and the Guarantee will be passed upon for the
Corporation by Warner Norcross & Judd LLP, Grand Rapids, Michigan, and
for the Underwriters by __________. Warner Norcross & Judd LLP and
certain members of the firm are indebted to, and have banking and
other trust relationships with Old Kent Bank, a subsidiary of the
Corporation. Warner Norcross & Judd LLP and ____________________ 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 Corporation and the Trust by
Warner Norcross & Judd LLP, as tax counsel to the Corporation and the
Trust. As of May 27, 1998, partners of and attorneys employed by
Warner Norcross & Judd LLP were the beneficial owners of 416,249
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<PAGE>
shares of the Corporation's common stock, which had an aggregate
market value of $16,259,560 on that date (such number of shares and
market value have not been adjusted for a subsequent 5% stock
dividend). Shares reported as beneficially owned include all shares
as to which those 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.
S-52
