EXHIBIT 4(b)(ii)
DECLARATION OF TRUST
OF
OLD KENT CAPITAL TRUST III
THIS DECLARATION OF TRUST is made as of July 14, 1998 (this
"Declaration"), by and between Old Kent Financial Corporation, as sponsor
(the "Sponsor"), and Bankers Trust (Delaware), a Delaware banking corporation,
as trustee (the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created by this Declaration shall be known as "Old Kent
Capital Trust III" (the "Trust"), in which name the Trustee or the Sponsor,
to the extent provided in this Declaration, may conduct the business of the
Trust, make and execute contracts, and xxx and be sued.
2. By this Declaration, the Sponsor assigns, transfers, conveys and
sets over to the Trust the sum of $10. This amount shall constitute the
initial trust estate. The parties intend that the Trust created by this
Declaration constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. 3801, et seq. (the "Business Trust
Act"), and that this Declaration constitutes the governing instrument of
the Trust. By this Declaration, the Trustee is authorized and directed, to
execute and file a certificate of trust with the Delaware Secretary of
State in such form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each party to
provide for the contemplated operation of the Trust created by this
Declaration and the issuance of the Capital Securities and Common
Securities (collectively, the "Securities") referred to in the Declaration.
Prior to the execution and delivery of the amended and restated Trust
Agreement or Declaration, the Trustee shall not have any duty or obligation
under this Declaration or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to the execution and delivery of the amended and restated Trust Agreement
or Declaration any licenses, consents or approvals required by applicable
law or otherwise. The Trustee may, however, take all proper actions that
are necessary to effect the transactions contemplated in this Declaration.
4. By this Declaration, the Sponsor and the Trustee authorize and
direct the Sponsor (i) to file with the Securities and Exchange Commission
(the "Commission") and, as applicable, to execute on behalf of the Trust,
(a) one or more Registration Statements on Form S-3 or other appropriate
forms (including pre-effective or post-effective amendments to the
Registration Statements) relating to the registration under the Securities
Act of 1933, as amended (the "1933 Act"), of the Capital Securities of the
Trust (the "1993 Act Registration Statements"), (b) any preliminary
prospectus or supplement to that prospectus relating to the Capital
Securities required to be filed pursuant to Rule 424 under the 1933 Act,
and (c) one or more Registration Statements on Form 8-A or other
appropriate forms (including all pre-effective and post-effective
amendments to the Registration Statements) relating to the registration of
the Capital Securities of the Trust under the Securities Exchange Act of
1934, as amended (the "1934 Act Registration Statements"); (ii) to file and
execute on behalf of the Trust, applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and
other papers and documents that shall be necessary or desirable to register
or establish the exemption from registration of the Capital Securities of
the Trust under the securities or "Blue Sky" laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iii) to execute and file an application, and all other applications,
statements, certificates, agreements and other instruments that are
necessary or desirable, to the New York Stock Exchange or any other
national stock exchange or The Nasdaq Stock Market for listing or quotation
of the Capital Securities of the Trust; (iv) to execute and deliver letters
or documents to, or instruments for filing with, a depository relating to
the Capital Securities of the Trust; and (v) to execute, deliver and
perform on behalf of the Trust one or more underwriting agreements, dealer
manager agreements, escrow agreements and other related agreements
providing for or relating to the sale of the Capital Securities of the
Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be
executed on behalf of the Trust by the Trustee, the Trustee, in its
capacity as trustee of the Trust, is authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the
documents listed above, it being understood that the Trustee, in its
capacity as trustee of the Trust, is not required to join in any such
filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws.
In connection with all of the foregoing, by this Declaration, the
Trustee, solely in its capacity as trustee of the Trust, and the Sponsor
each constitutes and appoints Xxxxxx X. Xxxxx and Xxxx Xxxx, or either of
them, as its true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for the Sponsor or in the Sponsor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and post-effective amendments) to each 1933
Act Registration Statement and each 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every
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act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Sponsor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his or her respective substitute or substitutes, shall do or cause
to be done by virtue hereof.
5. The number of trustees of the Trust initially shall be one and
after that the number of trustees of the Trust will be fixed from time to
time by written instrument signed by the Sponsor which may increase or
decrease the number of trustees of the Trust; PROVIDED, HOWEVER, that to
the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of
business in the State of Delaware. Subject to these requirements, the
Sponsor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Sponsor.
6. The recitals contained in this Declaration shall be taken as
statements of the Sponsor, and the Trustee does not assume any
responsibility for their correctness. The Trustee makes no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustee makes no representations as to the validity or
sufficiency of this Declaration.
7. (a) The Trustee shall not be liable, responsible or accountable
for damages or otherwise to the Trust, the Sponsor, the other trustees or
any holder of the Securities for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by the Trustee in good
faith on behalf of the Trust and in a manner the Trustee reasonably
believed to be within the scope of authority conferred on the Trustee by
this Declaration or by law, except that the Trustee shall be liable for any
such loss, damage or claim incurred by reason of the Trustee's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) The Trustee shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any person as to matters
the Trustee reasonably believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or
on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which distributions to holders of the Securities might properly be
paid.
8. The Sponsor agrees, to the fullest extent permitted by applicable
law:
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(a) to indemnify and hold harmless the Trustee, or any of its
officers, directors, shareholders, employees, representatives or agents,
from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by the Trustee in good faith on behalf of the Trust in a manner
reasonably believed to be within the scope of authority conferred on the
Trustee by this Declaration, except that the Trustee shall not be entitled
to be indemnified in respect of any loss, damage or claim incurred by
reason of its gross negligence or willful misconduct with respect to such
acts or omissions; and
(b) to advance expenses (including the reasonable fees and
expenses of counsel) incurred by the Trustee in defending any claim,
demand, action, suit or proceeding from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding.
9. The provisions in Section 8 shall survive the termination of this
Declaration or the earlier resignation or removal of the Trustee.
10. The Trust may terminate without issuing any Securities at the
election of the Sponsor.
11. This Declaration may be executed in one or more counterparts.
12. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to
conflict of laws principles.
The parties to this Declaration have caused this Declaration to
be executed as of the day and year first written above.
OLD KENT FINANCIAL CORPORATION,
as Sponsor
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Controller
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By: /s/ M. Xxxx Xxxxxxx
Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
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