EXHIBIT 4.5
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE COMPANY THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER
THIS SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS
AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH
RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE, ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES
(II)(D) AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY
AND THE PROPERTY TRUSTEE FOR SUCH SECURITIES TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION
ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
2
OLD KENT FINANCIAL CORPORATION
Floating Rate Junior Subordinated Debenture due 2027
$103,092,784
No. D-1
CUSIP No. 679833 AD 5
(R144A)
OLD KENT FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to Bankers Trust Company, as Trustee, or registered assigns, the
principal sum of One Hundred Three Million Ninety-Two Thousand Seven
Hundred Eighty Four Dollars ($103,092,784) on February 1, 2027, and to pay
interest on said principal sum from January 31, 1997 or from the most
recent interest payment date (each such date, an "Interest Payment Date")
to which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on the 1st day of February, May,
August and November of each year, commencing May 1, 1997, at a variable per
annum rate equal to LIBOR (as defined in the Indenture) plus .80% until the
principal hereof shall have become due and payable (plus Additional
Interest, if any), and on any overdue principal and (without duplication
and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum. The amount of interest payable for any period will be computed on
the actual number of days elapsed and a year of 360 days. The amount of
interest payable for any period shorter than a full quarterly period for
which interest is computed, will be computed on the basis of actual number
of days elapsed in such 90-day period. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on the
date the payment was originally payable. A "Business Day" shall mean any
day other than a Saturday or a Sunday or a day on which banking
institutions in the City of New York or Grand Rapids, Michigan are
authorized or required by law or executive order to remain closed or a day
on which the Corporate Trust Office of the Trustee, or the principal office
of the Property Trustee under the Declaration, is closed for business. The
interest installment so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name the Securities (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of
business on the Regular Record Date for such interest installment, which
shall be the first day of the month of such Interest Payment Date. Any
3
such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name the Securities for one or
more Predecessor Securities is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities not
less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in
said Indenture.
The Company shall have the right at any time during the term of
this Security, from time to time and as long as no Event of Default shall
have occurred or is continuing, to defer payment of interest on such
Security for up to 20 quarterly periods (an "Extension Period"), provided
that no Extension Period may extend past the Maturity of this Security.
There may be multiple Extension Periods of varying lengths during the term
of this Security. At the end of each Extension Period, if any, the Company
shall pay all interest then accrued and unpaid, together with interest
thereon, compounded quarterly at the rate specified on this Security to the
extent permitted by applicable law. During any such Extension Period, the
Company may not, and may not permit any subsidiary of the Company to, (i)
declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of
the Company that rank PARI PASSU with or junior in interest to the
Securities or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any subsidiary of the Company if such
guarantee ranks PARI PASSU or junior in interest to the Securities (other
than (A) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants or in connection
with a dividend reinvestment or stockholder stock purchase plan, (B) as a
result of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class or series of
the Company's indebtedness for any class or series of the Company's capital
stock, (C) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (D) any
declaration of a dividend in connection with any shareholder's rights plan,
or the issuance of rights, stock or other property under any shareholder's
rights plan, or the redemption or repurchase of rights pursuant thereto or
(E) any dividend in the form of stock, warrants, options or other rights
where the dividend stock of the stock issuable upon exercise of such
warrants, options, or other rights is the same stock as that on which the
dividend is being paid or ranks PARI PASSU with or junior to such stock).
4
Prior to the termination of any such Extension Period, the Company may
further extend the interest payment period, provided that no Extension
Period may exceed 20 consecutive quarterly periods or extend beyond the
Stated Maturity of the Securities. Upon the termination of any such
Extension Period and the payment of all amounts then due on any Interest
Payment Date, the Company may elect to begin a new Extension Period subject
to the above requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company shall give the
Trustee notice of its election of such Extension Period at least one
Business Day prior to the record date for the related interest payment.
Payment of the principal of and interest on this Security will
be made at the office or agency of the Paying Agent maintained for that
purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts; PROVIDED, HOWEVER, that at the option of the Company,
payment of interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds at such
place and to such account as may be designated by the Person entitled
thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (i) agrees to and shall be
bound by such provisions, (ii) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided and (iii) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of
Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the
Indenture summarized on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
5
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated:
OLD KENT FINANCIAL CORPORATION
By:____________________________________
Name:
Title:
6
This Security is one of a duly authorized issue of Securities of
Old Kent Financial Corporation (the "Company"), designated as its Floating
Rate Junior Subordinated Debentures due 2027 (herein called the
"Securities"), issued under an Indenture, dated as of January 31, 1997
(herein called the "Indenture"), between the Company and Bankers Trust
Company, a New York banking corporation, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
At any time on or after February 1, 2007, the Company shall have
the right, subject to the terms and conditions of Article Twelve of the
Indenture, to redeem this Security at the option of the Company, in whole
or in part, at a Redemption Price equal to the principal amount so redeemed
plus accrued but unpaid interest (including any Additional Interest) to the
Redemption Date.
If a Special Event as defined in Article Twelve of the Indenture
shall occur and be continuing, the Company shall have the right, subject to
the terms and conditions of Article Twelve of the Indenture, to redeem this
Security at the option of the Company within 120 days of the occurrence of
a Special Event, without premium or penalty, in whole but not in part, at a
Redemption Price equal to 100% of the principal amount so redeemed plus
accrued but unpaid interest (including any Additional Interest) to the
Redemption Date. Any redemption pursuant to this paragraph will be made
upon not less than 30 nor more than 60 days notice, at the Redemption
Price. If the Securities are only partially redeemed by the Company, the
Securities will be redeemed by lot (or such other method of selection as
the Trustee may customarily employ). In the event of redemption of this
Security in part only, a new Security or Securities for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for satisfaction and discharge
or legal defeasance of the entire indebtedness of this Security and for the
defeasance of certain covenants under the Indenture at any time upon
compliance by the Company with certain conditions set forth in the
Indenture.
7
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than a majority in
principal amount of the Outstanding Securities affected by such
modification, to modify the Indenture in a manner affecting the rights of
the Holders of the Securities; PROVIDED that so such modification may,
without the consent of the Holder of each Outstanding Security affected
thereby, (i) except to the extent permitted and subject to the conditions
set forth in the Indenture with respect to the extension of the Maturity of
the Security, change the maturity of, the principal of, or any installment
of interest on, the Security or reduce the principal amount thereof, or the
rate of payment of interest thereon, or change the place of payment where,
or the coin or currency in which, this Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of such
payment on or after the Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or modify the provisions of the Indenture
with respect to the subordination of the Securities in a manner adverse to
the Holders, (ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for such
supplemental Indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of the Indenture or certain
defaults hereunder and their consequences) provided for in the Indenture,
or (iii) modify any of the provisions of Section 513, Section 902 or
Section 1008 of the Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding Security
affected thereby, PROVIDED that, so long as any of the Capital Securities
remains outstanding, no such amendment shall be made that adversely affects
the holders of the Capital Securities, and no termination of the Indenture
shall occur, and no waiver of an Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation
preference of the outstanding Capital Securities unless and until the
principal of and any premium on the Securities and all accrued and unpaid
interest thereon have been paid in full.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities, of authorized denominations and for the same
8
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
THE SECURITIES AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
This is one of the Securities referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:__________________________________________
Authorized Signatory
Dated:
9
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the
declaration by the Commission of the effectiveness of a registration
statement under the Securities Act covering resales of this Security
(which effectiveness shall not have been suspended or terminated at
the date of the transfer) and (ii) three years after the later of the
date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Security (or any
predecessor thereto) (the "Resale Restriction Termination Date"), the
undersigned confirms that it has not utilized any general solicitation
or general advertising in connection with the transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act of 1933, as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the
registration requirements of the Securities Act of 1933, as
amended.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered Holder thereof; PROVIDED,
HOWEVER, that if box (3), (4) or (6) is checked, the Company or the
Trustee may require, prior to registering any such transfer of the
Securities, in its sole discretion, such written legal opinions,
certifications (including an investment letter in the case of box (3))
and other information as the Trustee or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
10
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any
person other than the Holder hereof unless and until the conditions to
any such transfer of registration set forth herein and in Section 315
of the Indenture shall have been satisfied.
Dated: __________________ Signed:____________________________
(Sign exactly as name
appears on the other side of
this Security)
Signature Guarantee: ____________________
1
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor
is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________________ ___________________________________
NOTICE: To be executed by an
executive officer