REGIONS GUARANTEE AGREEMENT BETWEEN REGIONS FINANCIAL CORPORATION, AS GUARANTOR, AND DEUTSCHE BANK TRUST COMPANY AMERICAS as Guarantee Trustee REGIONS FINANCING TRUST II DATED AS OF APRIL 27, 2007
Exhibit 4.28
EXECUTION VERSION
REGIONS GUARANTEE AGREEMENT
BETWEEN
REGIONS FINANCIAL CORPORATION,
AS GUARANTOR,
AS GUARANTOR,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Guarantee Trustee
as Guarantee Trustee
DATED AS OF APRIL 27, 2007
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Sections 310 through 318 of the
Trust Indenture Act of 1939:
| Section of | ||||
| Trust Indenture | Section of | |||
| Act Agreement | Guarantee | |||
310(a)
|
4.1 | (a) | ||
(b)
|
4.1(c), 2.8 | |||
(c)
|
Inapplicable | |||
311(a)
|
2.2 | (b) | ||
(b)
|
2.2 | (b) | ||
(c)
|
Inapplicable | |||
312(a)
|
2.2 | (a) | ||
(b)
|
2.2 | (b) | ||
313
|
2.3 | |||
314(a)
|
2.4 | |||
(b)
|
Inapplicable | |||
(c)
|
2.5 | |||
(d)
|
Inapplicable | |||
(e)
|
1.1, 2.5, 3.2 | |||
(f)
|
2.1, 3.2 | |||
315(a)
|
3.1 | (d) | ||
(b)
|
2.7 | |||
(c)
|
3.1 | |||
(d)
|
1 | (d) | ||
316(a)
|
1.1, 2.6, 5.4 | |||
(b)
|
5.3 | |||
(c)
|
8.2 | |||
317(a)
|
Inapplicable | |||
(b)
|
Inapplicable | |||
318(a)
|
2.1 | (b) | ||
(b)
|
2.1 | |||
(c)
|
2.1 | (a) | ||
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to be a part of the
Guarantee Agreement.
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TABLE OF CONTENTS
ARTICLE 1. INTERPRETATION AND DEFINITIONS |
1 | |||
SECTION 1.1. Interpretation |
1 | |||
SECTION 1.2. Definitions |
2 | |||
ARTICLE 2. TRUST INDENTURE ACT |
4 | |||
SECTION 2.1. Trust Indenture Act; Application |
4 | |||
SECTION 2.2. List of Holders |
4 | |||
SECTION 2.3. Reports by the Guarantee Trustee |
4 | |||
SECTION 2.4. Periodic Reports to the Guarantee Trustee |
5 | |||
SECTION 2.5. Evidence of Compliance with Conditions Precedent |
5 | |||
SECTION 2.6. Events of Default; Waiver |
5 | |||
SECTION 2.7. Event of Default; Notice |
5 | |||
SECTION 2.8. Conflicting Interests |
6 | |||
ARTICLE 3. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE |
6 | |||
SECTION 3.1. Powers and Duties of the Guarantee Trustee |
6 | |||
SECTION 3.2. Certain Rights of Guarantee Trustee |
7 | |||
SECTION 3.3. Indemnity |
8 | |||
ARTICLE 4. GUARANTEE TRUSTEE |
9 | |||
SECTION 4.1. Guarantee Trustee: Eligibility |
9 | |||
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee |
9 | |||
ARTICLE 5. GUARANTEE |
10 | |||
SECTION 5.1. Guarantee |
10 | |||
SECTION 5.2. Waiver of Notice and Demand |
10 | |||
SECTION 5.3. Obligations Not Affected |
10 | |||
SECTION 5.4. Rights of Holders |
11 | |||
SECTION 5.5. Guarantee of Payment |
11 | |||
SECTION 5.6. Subrogation |
11 | |||
SECTION 5.7. Independent Obligations |
12 | |||
ARTICLE 6. SUBORDINATION |
12 | |||
SECTION 6.1. Subordination |
12 | |||
SECTION 6.2. Pari Passu Guarantees |
12 | |||
ARTICLE 7. TERMINATION |
12 | |||
SECTION 7.1. Termination |
12 | |||
ARTICLE 8. MISCELLANEOUS |
13 | |||
SECTION 8.1. Successors and Assigns |
13 | |||
SECTION 8.2. Amendments |
13 | |||
SECTION 8.3. Notices |
13 | |||
SECTION 8.4. Benefit |
14 | |||
SECTION 8.5. Governing Law |
14 | |||
SECTION 8.6. Counterparts |
14 |
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GUARANTEE AGREEMENT, dated as of April 27, 2007, executed and delivered by REGIONS
FINANCIAL CORPORATION, a Delaware corporation (the “Guarantor”) having its principal office at 0000
Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and DEUTSCHE BANK TRUST COMPANY AMERICAS, a banking
corporation organized under the laws of the State of New York, as trustee (the “Guarantee
Trustee”), having a corporate trust office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the
benefit of the Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of Regions Financing Trust II, a Delaware business trust (the “Issuer”).
WITNESSETH:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust, dated as of April 27, 2007
(the “Declaration”), among the Guarantor, as Depositor, the Property Trustee (as defined below),
the Delaware Trustee (as defined in the Declaration) and the Administrative Trustees named therein
and the Holders from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing $700,000,000 aggregate Liquidation Amount (as defined in the Declaration) of
its 6.625% Trust Preferred Securities, Liquidation Amount $1,000 per capital security) (the
“Preferred Securities”) representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and the proceeds thereof,
together with the proceeds from the issuance of the Issuer’s Common Securities (as defined below),
will be used to purchase the Debentures (as defined in the Declaration) of the Guarantor which will
be deposited with Deutsche Bank Trust Company Americas, as Property Trustee under the Declaration
(the “Property Trustee”), as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities, the Guarantor desires
irrevocably and unconditionally to agree, to the extent set forth herein, to pay to the Holders of
the Preferred 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 Preferred Securities, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee Agreement to provide as follows for the benefit of the Holders from time to
time of the Preferred Securities:
ARTICLE 1. INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in the preamble hereto
have the respective meanings assigned to them in Section 1.2;
(b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout;
(c) all references to “the Guarantee Agreement” or “this Guarantee Agreement” are to this
Guarantee Agreement as modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are to Articles and
Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee
Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise
requires;
(f) a reference to the singular includes the plural and vice-versa; and
(g) the masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
SECTION 1.2. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings:
“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; provided,
however, that the Issuer shall not be deemed to be an Affiliate of the Guarantor. For the purposes
of this definition, “control” when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Board of Directors” means either the board of directors of the Guarantor or any executive or
other committee duly authorized by the board of directors of the Guarantor to act hereunder.
“Common Securities” means the securities representing common undivided beneficial interests in
the assets of the Issuer.
“Event of Default” means a default by the Guarantor on any of its payment or other obligations
under this Guarantee Agreement; provided, however, that, except with respect to a default in any
obligation other than a payment obligation under this Guarantee Agreement, the Guarantor shall have
received written notice of default and shall not have cured such default within 60 days after
receipt of such notice.
“Guarantee Payments” means the following payments or distributions, without duplication, with
respect to the Preferred Securities, to the extent not paid or made by or on behalf of the Issuer:
(i) any accumulated and unpaid Distributions (as defined in the Declaration) required to be paid on
the Preferred Securities, to the extent the Issuer shall have funds on hand available therefor at
such time, (ii) the Redemption Price (as defined in the Declaration), with respect to any Preferred
Securities called for redemption by the Issuer, to the extent the Issuer shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary termination, winding up
or liquidation of the Issuer, unless Debentures are distributed to
the
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Holders, the lesser of (a) the Liquidation Distribution, with respect to the Preferred
Securities, to the extent that the Issuer shall have funds available therefor at such time and (b)
the amount of assets of the Issuer remaining available for distribution to Holders in liquidation
of the Issuer.
“Guarantee Trustee” means Deutsche Bank Trust Company Americas, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the terms of this
Guarantee Agreement, and thereafter means each such Successor Guarantee Trustee.
“Holder” means any holder, as registered on the books and records of the Securities Registrar,
of any Preferred Securities; provided, however, that in determining whether the holders of the
requisite percentage of Preferred Securities have given any request, notice, consent or waiver
hereunder, “Holder” shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
“Indenture” means the Indenture dated as of May 15, 2002, as supplemented and amended between
the Guarantor and Deutsche Bank Trust Company Americas, as trustee.
“List of Holders” has the meaning specified in Section 2.2(a).
“Majority in Liquidation Amount of the Preferred Securities” means, except as provided by the
Trust Indenture Act, a vote by the Holder(s), voting separately as a class, of more than 50% of the
Liquidation Amount of all then outstanding Preferred Securities issued by the Issuer.
“Officers’ Certificate” means, with respect to any Person, a certificate signed by the
President or a Vice President of such Person, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the Guarantee Trustee. Any
Officers’ Certificate delivered with respect to compliance with a condition or covenant provided
for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers’ Certificate has read the covenant or
condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officers’ Certificate;
(c) a statement that each 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
(d) a statement as to whether, in the opinion of each officer, 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 including any vice president, any assistant vice president, managing
director, assistant treasurer, secretary, assistant secretary, associate or any other officer of
the
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Guarantee Trustee customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the administration of this Guarantee
Agreement, and also any other officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
“Senior Debt” has the meaning set forth in the Indenture.
“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.
Capitalized or otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Declaration as in effect on the date hereof.
ARTICLE 2. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are
or would be required to be part of this Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement 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. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (if the
Guarantee Trustee is not the Securities Registrar) (a) semi-annually, on or before June 1 and
December 1 of each year, a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders (the “List of Holders”) as of a date not more than 15 days
prior to the delivery thereof, and (b) at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such request, a List of Holders
as of a date not more than 15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and is not identical to a
previously supplied list of Holders or has not otherwise been received by the Guarantee Trustee in
its capacity as such. The Guarantee Trustee 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 Section 311(a), Section
311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than March 15 of each year, commencing March 15, 2008, the Guarantee
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Trustee shall provide to the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange Commission
and the Holders such documents, reports and information, if any, as required by Section 314 of the
Trust Indenture Act and the compliance certificate required by Section 314 of the Trust Indenture
Act, in the form, in the manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee Agreement 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) may be given in the form of an
Officers’ Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred Securities may, by vote, on
behalf of the Holders of all Preferred Securities, waive any past default or Event of Default and
its consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of all Preferred Securities, notices
of all Events of Default actually known to a Responsible Officer of the Guarantee Trustee, unless
such Events of Default have been cured before the giving of such notice, provided, that, except in
the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be
protected in withholding such notice if and so long as the Board of Directors and/or Responsible
Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless
the Guarantee Trustee shall have received written notice, or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice, of such Event of
Default.
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SECTION 2.8. Conflicting Interests.
The Declaration shall be deemed to be specifically described in this Guarantee Agreement for
the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
ARTICLE 3. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the
Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except
a Holder exercising his or her rights pursuant to Section 5.4(iv) or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest
in any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its
appointment hereunder, and such vesting and cessation 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 an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce
this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing
of all Events of Default that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee Agreement, 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 Agreement 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 Event of Default and after the curing or waiving of
all such 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 Agreement, 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 Agreement; 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
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of this Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee Agreement;
(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 Preferred 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 Agreement; and
(iv) no provision of this Guarantee Agreement 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
Agreement or adequate indemnity 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 reasonably 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 Agreement
shall be sufficiently evidenced by an Officers’ Certificate unless otherwise prescribed
herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee
Trustee shall deem it desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers’ Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the advice or opinion
of such legal counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted to be
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taken by it hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its Affiliates and may
be one of its employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee Trustee such adequate
security and indemnity satisfactory to it, against the costs, expenses (including
attorneys’ fees and expenses) 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)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents, attorneys,
custodians or nominees, and the Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement 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, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C) shall be fully
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement 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 to
act in accordance with such power and authority.
SECTION 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence, willful misconduct or bad faith on the
part of the Guarantee Trustee, arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, 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
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or duties hereunder. The provisions of this Section shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee. The Guarantee Trustee
will not claim, set-off or exact any lien or charge on any Guarantee Payments as a result of any
amount due to it under this Guarantee Agreement.
ARTICLE 4. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000, and shall be a corporation
meeting the requirements of Section 310(a) of the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority, then, for the purposes of this Section 4.1 and to
the extent permitted by the Trust Indenture Act, 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 immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the 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
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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.
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 or on behalf of the Issuer),
as and when due, regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert, except the defense of payment. 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 Issuer to pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer 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.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this Guarantee
Agreement 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 Issuer of any express or implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion of the
Distributions (other than an extension of time for payment of Distributions that results from the
extension of any interest payment period on the Debentures as provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities;
(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 Preferred Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
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(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
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred 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 Holders to give notice to, or obtain the consent of, the
Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will be deposited with
the Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority
in Liquidation Amount of the Preferred 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 Agreement or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement, without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee
Agreement will not be discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of Debentures to
Holders as provided in the Declaration.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders against the Issuer in
respect of any amounts paid to the Holders by the Guarantor under this Guarantee Agreement and
shall have the right to waive payment by the Issuer pursuant to Section 5.1; provided, however,
that the Guarantor shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under
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this Guarantee Agreement. 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 Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred 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 Agreement notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE 6. SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will constitute unsecured
obligations of the Guarantor and will rank subordinate and junior in right of payment to all Senior
Debt (as defined in the Indenture) of the Guarantor to the extent and manner set forth in the
Indenture with respect to the Debentures. The obligations of the Guarantor under this Guarantee
Agreement do not constitute Senior Debt.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with its
obligations under (i) any similar guarantee agreements issued by the Guarantor on behalf of the
holders of preferred or common securities issued by any Regions Trust (as defined in the
Indenture); (ii) the Indenture and the Securities (as defined therein) issued thereunder; (iii) the
Expense Agreement (as defined in the Declaration) and any similar expense agreements entered into
by the Guarantor in connection with the offering of Preferred Securities (as defined in the
Indenture) by any Regions Trust (as defined in the Indenture), and (iv) any other security,
guarantee or other agreement or obligation that is expressly stated to rank pari passu with the
obligations of the Guarantor under this Guarantee Agreement or with any obligation that ranks pari
passu with the obligations of the Guarantor under this Guarantee Agreement.
ARTICLE 7. TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) the distribution of Debentures to
the Holders in exchange for all of the Preferred Securities or (iii) full payment of the amounts
payable in accordance with the Declaration upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder must restore payment of any sums paid with respect to
Preferred Securities or this Guarantee Agreement.
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ARTICLE 8. MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under Article Eight of the
Indenture and pursuant to which the successor or assignee agrees in writing to perform the
Guarantor’s obligations hereunder, the Guarantor shall not assign its obligations hereunder.
SECTION 8.2. Amendments.
Except with respect to any changes which do not adversely affect the rights of the Holders in
any material respect (in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not less than a Majority in
Liquidation Amount of the Preferred Securities. The provisions of Article VI of the Declaration
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and delivered, telecopied or mailed by
first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other address, facsimile
number or to the attention of such other Person as the Guarantor may give notice to the Holders:
Regions Financial Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: General Counsel
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: General Counsel
(b) if given to the Issuer at the Issuer’s address set forth below with a copy to the
Guarantee Trustee as set forth below:
Regions Financial Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: General Counsel
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: General Counsel
(c) if given to the Guarantee Trustee:
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Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx, 00xx Xxxxx
XX: XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Trust and Securities Services
00 Xxxx Xxxxxx, 00xx Xxxxx
XX: XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Trust and Securities Services
Copy to:
Deutsche Bank National Trust Company
for Deutsche Bank Trust Company Americas
00 XxXxxxxx Xxxxxx
XX: XXX00-0000
Xxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Trust and Securities Services
for Deutsche Bank Trust Company Americas
00 XxXxxxxx Xxxxxx
XX: XXX00-0000
Xxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Trust and Securities Services
(d) if given to any Holder, at the address set forth on the books and records of the Issuer.
All notices hereunder 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 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not separately
transferable from the Preferred Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. Counterparts.
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.
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IN WITNESS WHEREOF, the undersigned have executed this Guarantee Agreement as of the date
first above written.
| REGIONS FINANCIAL CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Executive Vice President and Treasurer | |||
| DEUTSCHE BANK NATIONAL TRUST COMPANY For: DEUTSCHE BANK TRUST COMPANY AMERICAS, as Guarantee Trustee |
||||
| By: | /s/ Yana Kalachikova | |||
| Name: | Yana Kalachikova | |||
| Title: | Assistant Vice President | |||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxxx | |||
| Title: | Assistant Vice President | |||
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