EXHIBIT 4.3
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GUARANTEE AGREEMENT
OLD KENT CAPITAL TRUST I
DATED AS OF _______________, 1997
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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)
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This Cross-Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its
terms or provisions.
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions . . . . . . . . . . . . 2
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . 5
SECTION 2.3 Reports by Guarantee Trustee . . . . . . . . . . . . . 5
SECTION 2.4 Periodic Reports to Guarantee Trustee. . . . . . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . 6
SECTION 2.6 Guarantee Event of Default; Waiver . . . . . . . . . . 6
SECTION 2.7 Guarantee Event of Default; Notice . . . . . . . . . . 6
SECTION 2.8 Conflicting Interests. . . . . . . . . . . . . . . . . 6
SECTION 2.9 Disclosure of Information. . . . . . . . . . . . . . . 6
SECTION 2.10 Guarantee Trustee May File Proofs of Claim . . . . . . 7
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee . . . . . . . . 7
SECTION 3.2 Certain Rights of Guarantee Trustee. . . . . . . . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance of
Guarantee. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility . . . . . . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
Trustee. . . . . . . . . . . . . . . . . . . . . . . . 11
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PAGE
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.2 Waiver of Notice and Demand. . . . . . . . . . . . . . 13
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . 13
SECTION 5.4 Rights of Holders. . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . 15
SECTION 5.6 Subrogation. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Independent Obligations. . . . . . . . . . . . . . . . 15
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . . 15
SECTION 6.2 Ranking. . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 7
TERMINATION
SECTION 7.1 Termination. . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8.2 Indemnification. . . . . . . . . . . . . . . . . . . . 17
SECTION 8.3 Compensation . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . . 18
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.4 Benefit. . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . 19
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of
_______________, 1997, is executed and delivered by Old Kent Financial
Corporation, a Michigan corporation (the "Guarantor"), and Bankers Trust
Company, a New York banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) of the
Securities (as defined herein) of Old Kent Capital Trust I, a Delaware
statutory business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the Declaration (as defined herein), the
Trust issued on January 31, 1997 (i) $100,000,000 aggregate liquidation
amount of capital securities (liquidation amount $1,000 per capital
security), designated the Floating Rate Subordinated Capital Income
Securities (the "Old Capital Securities") and (ii) $3,092,784 aggregate
liquidation amount of common securities, having a liquidation amount of
$1,000 per common security, designated the Floating Rate Common Securities
(the "Common Securities");
WHEREAS, the Old Capital Securities and the Common Securities
were guaranteed by the Guarantor to the extent and on the terms and
conditions set forth in the Guarantee Agreement, dated as of January 31,
1997 (the "Old Guarantee"), from the Guarantor to Guarantee Trustee for the
benefit of Holders of the Old Capital Securities and the Common Securities;
WHEREAS, pursuant to the Registration Rights Agreement (as
defined in the Declaration), the Trust has offered to exchange up to
$100,000,000 aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities, liquidation amount $1,000 per capital security
(the "New Capital Securities" and, together with the Old Capital
Securities, the "Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, pursuant to the Registration Rights Agreement (as
defined in the Declaration), the Guarantor and the Guarantee Trustee wish
to exchange the Old Guarantee for this Guarantee, which is substantially
the same as the Old Guarantee except that it has been registered under the
Securities Act and qualified under the Trust Indenture Act and does not
contain restrictions on transfer, and which is for the benefit of the
Holders of New Capital Securities, Old Capital Securities not exchanged for
New Capital Securities and the Common Securities (collectively, the
"Securities").
WHEREAS, as incentive for the Holders to retain the Capital
Securities (which the Guarantor agrees will benefit it), the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth
in this Guarantee, to pay to the Holders of the Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the Guarantor
executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. In this Guarantee,
unless the context otherwise requires:
(i) capitalized terms used in this Guarantee but not defined in
the preamble above have the respective meanings assigned to them in
this Section 1.1;
(ii) a term defined anywhere in this Guarantee has the same
meaning throughout;
(iii) all references to "the Guarantee" or "this Guarantee" are to
this Guarantee as modified, supplemented or amended from time to time;
(iv) all references in this Guarantee to Articles and Sections
are to Articles and Sections of this Guarantee, unless otherwise
specified;
(v) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee, unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(vi) a reference to the singular includes the plural and vice
versa and a reference to the masculine includes, as applicable, the
feminine.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" has the meaning given to such term in the
Indenture.
"Corporate Trust Office" means the office of the Guarantee
Trustee at which the corporate trust business of the Guarantee Trustee
shall at any particular time, be principally administered, which office at
the date of execution of this Guarantee is located at Bankers Trust
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Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust and Agency Group - Structured Finance Team.
"Covered Person" means any Holder or beneficial owner of
Securities.
"Debentures" means the series of junior subordinated debentures
to be issued by the Guarantor, designated the Floating Rate Junior
Subordinated Debentures due 2027 held by the Property Trustee (as defined
in the Declaration) of the Trust.
"Declaration" means the Amended and Restated Declaration of
Trust, dated as of January 31, 1997, as amended, modified or supplemented
from time to time, among the trustees of the Trust named therein, the
Guarantor, as sponsor, and the holders from time to time of undivided
beneficial ownership interests in the assets of the Trust.
"Guarantee Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Guarantee.
"Guarantee Trustee" means Bankers Trust Company, until a
successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means
each such Successor Guarantee Trustee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Securities, to the
extent not paid or made by the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid
on such Securities to the extent the Trust shall have sufficient funds
available therefor at the time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption with respect to
any Securities called for redemption by the Trust, to the extent the Trust
shall have sufficient funds available therefor at the time, and (iii) upon
a voluntary or involuntary dissolution, winding-up or termination of the
Trust (other than in connection with the distribution of Debentures to the
Holders in exchange for Securities as provided in the Declaration), the
lesser of (A) the aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Securities to the date of payment and (B) the
amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution"). If a Trust Enforcement Event (as defined in the
Declaration) has occurred and is continuing, the rights of holders of the
Common Securities to receive Guarantee Payments under this Guarantee are
subordinated to the rights of Holders of the Capital Securities to receive
payments hereunder.
"Holder" shall mean any holder of Securities, as registered on
the books and records of the Trust; provided, however, that, in determining
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whether the Holders of the requisite percentage of Capital Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor or any other
obligor on the Capital Securities; and provided further, that in
determining whether the Holders of the requisite liquidation amount of
Capital Securities have voted on any matter provided for in this Guarantee,
then for the purpose of such determination only (and not for any other
purpose hereunder), if the Capital Securities remain in the form of one or
more Global Certificates (as defined in the Declaration), the term
"Holders" shall mean the holder of the Global Certificate acting at the
direction of the beneficial holders of the securities.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or
agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of January 31, 1997,
among the Guarantor (the "Company") and Bankers Trust Company, as trustee,
and any indenture supplemental thereto pursuant to which the Debentures are
to be issued to the Property Trustee (as defined in the Declaration) of the
Trust.
"Majority in Liquidation Amount of the Securities" means, except
as provided in the terms of the Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities, voting separately as a class, who are
the record holders of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all outstanding Securities. In
determining whether the Holders of the requisite amount of Securities have
voted, Securities which are owned by the Guarantor or any Affiliate of the
Guarantor shall be disregarded for the purpose of any such determination.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Declaration) of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided
for in this Guarantee shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer on behalf of such Person to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
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(iii) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such condition or covenant
has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the Guarantee
Trustee, including any vice president, any assistant vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION. (a) This
Guarantee is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee and shall, to the extent applicable,
be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES. (a) The Guarantor
shall provide the Guarantee Trustee with a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders"), (i) semi-annually, not later
than June 30 and December 31 of each year and current as of such date, and
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(ii) at such other times as the Guarantee Trustee may request in writing,
within 30 days of receipt by the Guarantor of a written request from the
Guarantee Trustee for a List of Holders as of a date no more than 15 days
before such List of Holders is given to the Guarantee Trustee; excluding
from any such list names and addresses received by the Guarantee Trustee in
its capacity as Security Registrar (as defined in the Indenture). The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it,
provided that it may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY GUARANTEE TRUSTEE. Within 60 days after
May 15 of each year (commencing with the year of the first anniversary of
the issuance of the Securities), the Guarantee Trustee shall provide to the
Holders of the Securities such reports as are required by Section 313 of
the Trust Indenture Act (if any) in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee such documents, reports
and information as required by Section 314 (if any) of the Trust Indenture
Act and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Guarantee that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) shall be given in the form of
an Officers' Certificate.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of
a Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any
such Guarantee Event of Default shall cease to exist, and any Guarantee
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any
right consequent thereon.
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SECTION 2.7 GUARANTEE EVENT OF DEFAULT; NOTICE. (a) The
Guarantee Trustee shall, within 90 days after the occurrence of a Guarantee
Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all Guarantee Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; provided,
that the Guarantee Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Guarantee Trustee shall have
received written notice thereof or a Responsible Officer of the Guarantee
Trustee charged with the administration of the Declaration shall have
obtained actual knowledge thereof.
SECTION 2.8 CONFLICTING INTERESTS. The Declaration shall be
deemed to be specifically described in this Guarantee for the purposes of
clause (i) of the first provision contained in Section 310(b) of the Trust
Indenture Act.
SECTION 2.9 DISCLOSURE OF INFORMATION. The disclosure of
information as to the names and addresses of the Holders of the Securities
in accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, shall not be deemed to
be a violation of any existing law, or any law hereafter enacted which does
not specifically refer to Section 312 of the Trust Indenture Act, nor shall
the Guarantee Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 2.10 GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM. Upon
the occurrence of a Guarantee Event of Default, the Guarantee Trustee is
hereby authorized to (i) recover judgment, in its own name and as trustee
of an express trust, against the Guarantor for the whole amount of any
Guarantee Payments remaining unpaid and (ii) file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have
its claims and those of the Holders of the Securities allowed in any
judicial proceedings relative to the Guarantor, its creditors or its
property.
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ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee on
behalf of the Trust for the benefit of the Holders of the Securities, and
the Guarantee Trustee shall not transfer this Guarantee to any Person
except a Holder of Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee in and to this Guarantee shall automatically vest in any
Successor Guarantee Trustee, and such vesting and succession of title shall
be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a
Responsible Officer of the Guarantee Trustee has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee for the
benefit of the Holders of the Securities.
(c) The Guarantee Trustee, before the occurrence of any
Guarantee Event of Default and after the curing of all Guarantee Events of
Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Guarantee, and no implied covenants
shall be read into this Guarantee against the Guarantee Trustee. In case a
Guarantee Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer of
the Guarantee Trustee, the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee, and use the same degree
of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such Guarantee
Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
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obligations as are specifically set forth in this Guarantee,
and no implied covenants or obligations shall be read into
this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Guarantee; but in the case of
any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee or indemnity,
satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE. (a) Subject
to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
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note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee may, in the absence of bad faith
on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration or any instrument (or any
rerecording, refiling or registration thereof);
(v) The Guarantee Trustee may consult with counsel, and the
advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee from any court of
competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such security
and indemnity, satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided, that nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of
a Guarantee Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee;
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
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certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit;
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and
the Guarantee Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Securities, and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the
Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Guarantee, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its
agent's taking such action; and
(x) Whenever in the administration of this Guarantee the
Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in Liquidation Amount
of the Securities, (B) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (C) shall be protected in conclusively relying on
or acting in accordance with such instructions.
(b) No provision of this Guarantee shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in
any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE. The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee.
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ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act
as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
promptly resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEE.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the Successor
Guarantee Trustee by written instrument executed by the Successor Guarantee
Trustee and delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee
Trustee may resign at any time by giving written notice thereof to the
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Holders. The Guarantee Trustee shall appoint a successor by requesting
from at least three Persons meeting the eligibility requirements, such
Person's expenses and charges to serve as the Guarantee Trustee, and
selecting the Person who agrees to the lowest expenses and charges. If the
instrument of acceptance by the Successor Guarantee Trustee shall not have
been delivered to the Guarantee Trustee within 30 days after the giving of
such notice of resignation, the Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any time
by Act (within the meaning of Section 104 of the Indenture) of the Holders
of at least a Majority in Liquidation Amount of the Capital Securities,
delivered to the Guarantee Trustee.
(d) If a resigning Guarantee Trustee shall fail to appoint a
successor, or if a Guarantee Trustee shall be removed or become incapable
of acting as Guarantee Trustee, or if any vacancy shall occur in the office
of any Guarantee Trustee for any cause, the Holders of the Capital
Securities, by Act of the Holders of record of not less than 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding
delivered to such Guarantee Trustee, shall promptly appoint a successor
Guarantee Trustee. If no Successor Guarantee Trustee shall have been so
appointed by the Holders of the Capital Securities and such appointment
accepted by the Successor Guarantee Trustee, any Holder, on behalf of
himself and all other similarly situated, may petition any court of
competent jurisdiction for the appointment of a Successor Guarantee
Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation
of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall
pay to the Guarantee Trustee all amounts owing for fees and reimbursement
of expenses which have accrued to the date of such termination, removal or
resignation.
(g) The Guarantor shall promptly notify the Holders of the
resignation, removal or appointment of the Guarantee Trustee.
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ARTICLE 5
GUARANTEE
SECTION 5.1 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or
by causing the Trust to pay such amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this
Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands. Notwithstanding anything to
the contrary herein, the Guarantor retains all of its rights under the
Indenture to (i) extend the interest payment period on the Debentures and
the Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extended Interest Payment Period (as defined in the
Indenture) with respect to the Distributions (as defined in the
Declaration) on the Securities, and (ii) change the maturity date of the
Debentures to the extent permitted by the Indenture.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee shall be absolute and unconditional and
shall remain in full force and effect until the entire liquidation amount
of all outstanding Securities shall have been paid and such obligation
shall in no way be affected or impaired by reason of the happening from
time to time of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Securities to
be performed or observed by the Trust;
(b) The extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price (as defined in the
Indenture), Liquidation Distribution or any other sums payable under
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the terms of the Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution
or other sum payable that results from the extension of any interest
payment period on the Debentures or any change to the maturity date of
the Debentures permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence on the
part of the Property Trustee or the Holders to enforce, assert or
exercise any right, privilege, power or remedy conferred on the
Property Trustee or the Holders pursuant to the terms of the
Securities, or any action on the part of the Trust granting indulgence
or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings affecting,
the Trust or any of the assets of the Trust;
(e) Any invalidity of, or defect or deficiency in, the
Securities;
(f) The settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Guarantee Trustee or the
Holders to give notice to, or obtain consent of the Guarantor or any other
Person with respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any
obligation, or any defense of any kind or nature that the Guarantor has or
may have against any Holder shall be available hereunder to the Guarantor
against such Holder to reduce the payments to it under this Guarantee.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee.
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(b) If the Guarantee Trustee fails to enforce this Guarantee,
then any Holder of Securities may, subject to the subordination provisions
of Section 6.2, institute a legal proceeding directly against the Guarantor
to enforce the Guarantee Trustee's rights under this Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. Notwithstanding the foregoing, if
the Guarantor has failed to make a Guarantee Payment, a Holder of
Securities may, subject to the subordination provisions of Section 6.2,
directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the
principal of or interest on the Debentures on or after the respective due
dates specified in the Debentures, and the amount of the payment will be
based on the Holder's pro rata share of the amount due and owing on all of
the Securities. The Guarantor hereby waives any right or remedy to require
that any action on this Guarantee be brought first against the Trust or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Securities against the Trust in respect of any amounts paid to
such Holders by the Guarantor under this Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation of any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee, if at
the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of
the preceding sentence, the Guarantor agrees to hold such amount in trust
for the Holders and to pay over such amount to the Guarantee Trustee for
the benefit of the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Securities,
and that the Guarantor shall be liable as principal and as debtor hereunder
to make Guarantee Payments pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections
5.3(a) through 5.3(g), inclusive, hereof.
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ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Securities remain outstanding, if there shall have
occurred a Guarantee Event of Default or a Trust Enforcement Event, then
the Guarantor shall not, and shall not permit any subsidiary of the
Guarantor, to (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to,
the Guarantor's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu with or junior to the
Debentures or make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor if
such guarantee ranks pari passu with or junior to the Debentures (other
than (A) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants or in connection
with a dividend reinvestment or shareholder stock purchase plan, (B) as a
result of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class of series of
the Company's indebtedness for any class or series of the Company's capital
stock, (C) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (D) any
declaration of a dividend in connection with any shareholder's rights plan,
or the issuance of rights, stock or other property under any shareholder's
rights plan, or the redemption or repurchase of rights pursuant thereto or
(E) any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid (or PARI PASSU with or junior to such stock)).
SECTION 6.2 RANKING.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all
other liabilities of the Guarantor, except those liabilities of the
Guarantor made pari passu or subordinate by their express terms.
If a Trust Enforcement Event has occurred and is continuing under
the Declaration, the rights of the holders of the Common Securities to
receive Guarantee Payments hereunder shall be subordinated to the rights of
the holders of the Capital Securities to receive payment of all amounts due
and owing hereunder.
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ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate upon (i) full payment of the
Redemption Price (as defined in the Indenture) of all Securities, (ii) upon
the distribution of the Debentures to the Holders of all the Securities or
(iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Trust. Notwithstanding the foregoing,
this Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder of Securities must restore payment
of any sums paid under the Securities or under this Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to any matter the Indemnified Person reasonably believes is within such
other Person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Guarantor, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against any loss, liability or
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expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against, or investigating, any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth
in this Section 8.2 shall survive the termination of this Guarantee.
SECTION 8.3 COMPENSATION.
The Guarantor agrees to pay to the Guarantee Trustee from time to
time reasonable compensation, as mutually agreed to by the Guarantor and
the Guarantee Trustee, for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the
Securities then outstanding. Except in connection with any merger or
consolidation of the Guarantor with or into another entity or any sale,
transfer or lease of the Guarantor's assets to another entity, in each
case, to the extent permitted under the Indenture, the Guarantor may not
assign its rights or delegate its obligations under this Guarantee.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not adversely affect
the rights of the Holders (in which case no consent of the Holders will be
required), this Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Securities.
The provisions of Section 12.2 of the Declaration with respect to meetings
of, and action by written consent of the Holders of the Securities apply to
the giving of such approval.
SECTION 9.3 NOTICES.
All notices provided for in this Guarantee shall be in writing,
duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
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(a) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address as
the Guarantee Trustee may give notice of to the Guarantor and the
Holders of the Securities):
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Fax: (212)
(b) If given to the Guarantor, at the Guarantor's mailing
addresses set forth below (or such other address as the Guarantor may
give notice of to the Guarantee Trustee and the Holders of the
Securities):
Old Kent Financial Corporation
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Corporate Secretary
Fax: (000) 000-0000
(c) If given to any Holder of Securities, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Guarantee is solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable
from the Securities.
SECTION 9.5 GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, this Guarantee is executed as of the day and
year first above written.
OLD KENT FINANCIAL CORPORATION,
as Guarantor
By:_____________________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
By:_____________________________________
Name:
Title:
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