Exhibit 4.6
GUARANTEE
AGREEMENT
Between
TCF FINANCIAL
CORPORATION,
as Guarantor,
and
WILMINGTON TRUST
COMPANY,
as Trustee,
dated as of August 19,
2008
CROSS-REFERENCE TABLE*
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Section of
Trust Indenture Act
of 1939, as amended
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Section of
Guarantee Agreement
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310(a).
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4.1(a)
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310(b).
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4.1(c), 2.8
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310(c).
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Inapplicable
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311(a).
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2.2(b)
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311(b).
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2.2(b)
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311(c).
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Inapplicable
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312(a).
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2.2(a)
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312(b).
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2.2(b)
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313(a).
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2.3
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313(b).
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2.3
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313(c).
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2.3
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313(d).
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2.3
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314(a).
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2.4
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314(b).
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Inapplicable
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314(c).
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2.5
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314(d).
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Inapplicable
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314(e).
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1.1, 2.5, 3.2
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314(f).
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3.2
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315(a).
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3.1(d)
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315(b).
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2.7
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315(c).
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3.1(c)
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315(d).
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3.1(d)
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315(e).
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2.1
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316(a).
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2.6, 5.4
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316(b).
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5.3
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316(c).
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2.1
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317(a).
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Inapplicable
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317(b).
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Inapplicable
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318(a).
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2.1(b)
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318(b).
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2.1
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318(c).
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2.1
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*
This Cross-Reference Table does not
constitute part of the Guarantee Agreement and shall not affect the
interpretation of any of its terms or provisions.
i
GUARANTEE
AGREEMENT
This GUARANTEE AGREEMENT, dated as
of August 19, 2008, is executed and delivered by TCF FINANCIAL
CORPORATION, a Delaware corporation (the “Guarantor”),
having its principal office at 200 Lake Street East, Wayzata,
Minnesota 55391-1693, and Wilmington Trust Company, a Delaware
banking corporation, as trustee (the “Guarantee
Trustee”), for the benefit of the Holders (as defined herein)
from time to time of the Capital Securities and the Common
Securities (each as defined herein and together, the
“Securities”) of TCF CAPITAL I, a Delaware statutory
trust (the “Issuer”).
WHEREAS, pursuant to an Amended and
Restated Trust Agreement, dated as of August 19, 2008 (the
“Trust Agreement”), among the Guarantor, as Depositor,
the Property Trustee and the Delaware Trustee named therein, 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 initially issuing $100,000,000 aggregate Liquidation
Amount (as defined in the Trust Agreement) of its 10.75% Capital
Securities, Series I, Liquidation Amount $25 per capital
security (together with any other capital securities issued
pursuant to the Trust Agreement, including pursuant to any
over-allotment option, the “Capital Securities”),
representing preferred undivided beneficial interests in the assets
of the Issuer and having the terms set forth in the Trust
Agreement;
WHEREAS, the Capital Securities will
be issued by the Issuer and the proceeds thereof, together with the
proceeds from the issuance of the Issuer’s Common Securities,
will be used to purchase the Debentures (as defined in the Trust
Agreement) of the Guarantor which will be deposited with Wilmington
Trust Company, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the
Holders to purchase Securities the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth herein, to
pay to the Holders of the Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of
the purchase by each Holder of Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee Agreement for the benefit of
the Holders from time to time of the Securities.
ARTICLE I.
DEFINITIONS
Section 1.1.
Definitions.
As used in this Guarantee Agreement,
the terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise
defined herein shall have the meanings assigned to such terms in
the Trust Agreement as in effect on the date hereof.
“ 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 an Affiliate of the Guarantor shall not be
deemed to be an Affiliate of the Issuer. 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
committee of that board duly authorized to act hereunder or any
directors or officers of the Guarantor to whom such board of
directors or such committee shall have duly delegated its
authority.
“ 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 payment of
any Guarantee Payments, the Guarantor shall have received notice of
default and shall not have cured such default within 90 days after
receipt of such notice.
“ Guarantee Payments
” means the following payments or distributions, without
duplication, with respect to the 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 Trust Agreement) required
to be paid on the Securities, to the extent the Issuer shall have
funds on hand available therefor at such time, (ii) the
redemption price, including all accrued and unpaid Distributions to
the date of redemption (the “Redemption Price”), with
respect to any 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 Holders, the lesser of
(a) the aggregate of the Liquidation Amount plus accrued and
unpaid Distributions to the date of payment and (b) the amount
of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer after satisfaction of
liabilities to creditors of the Issuer as required by applicable
law (in either case, the “Liquidation
Distribution”).
“ Guarantee Trustee
” means Wilmington Trust Company, 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.
2
“ Holder ” means
any holder, as registered on the books and records of the Issuer,
of any Securities; provided , however , that in
determining whether the holders of the requisite percentage of
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 August 19, 2008, between the
Guarantor and Wilmington Trust Company, as trustee, as amended or
supplemented from time to time.
“ List of Holders
” has the meaning specified in
Section 2.2(a).
“ Majority in aggregate
Liquidation Amount of the 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 aggregate
Liquidation Amount of all then outstanding Securities issued by the
Issuer.
“ Officers’
Certificate ” means a certificate signed by any two of
the following: Chairman of the Board, the Chief Executive Officer,
the President, any Vice Chairman of the Board, the Chief Financial
Officer, any Vice President, the Treasurer, the Secretary, the
Controller, any Assistant Controller, any Assistant Treasurer or
any Assistant Secretary of the Company (as each term is used in the
Indenture). 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 individual signing such Officers’ Certificate has read
such covenant or condition and the definitions herein relating
thereto;
(b)
a brief statement
of the nature and scope of the examination or investigation upon
which the statements or opinions contained in such Officers’
Certificate are based;
(c)
a statement that,
in the opinion of each individual signing the Officer’s
Certificate, he has made such examination or investigation as is
necessary to enable him 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 individual signing the
Officers’ Certificate, 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.
3
“ Responsible Officer
” when used with respect to the Guarantee Trustee means any
officer of the Guarantee Trustee assigned by the Guarantee Trustee
from time to time to administer its corporate trust
matters.
“ 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.
ARTICLE II.
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 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
will furnish or cause to be furnished to the Guarantee
Trustee:
(i)
semi-annually,
not more than 15 days after January 15 and July 15 in
each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders as of
such January 1 and July 1, and
(ii)
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 similar form and content as of a date not more than 15 days
prior to the time such list is furnished, excluding from any such
list names and addresses received by the Guarantee Trustee in its
capacity as Securities Registrar.
(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.
The Guarantee Trustee shall transmit
to Holders such reports concerning the Guarantee Trustee and its
actions under this Guarantee Agreement as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided
pursuant
4
thereto. If required by
Section 313(a) of the Trust Indenture Act, the Guarantee
Trustee shall, within sixty days after each May 15 following
the date of this Guarantee Agreement deliver to Holders a brief
report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
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. Delivery of such
reports, information and documents to the Guarantee Trustee is for
informational purposes only and the Guarantee Trustee’s
receipt of such shall not constitute constructive notice of any
information contained therein, including the Guarantor’s
compliance with any of its covenants hereunder (as to which the
Guarantee Trustee is entitled to rely exclusively on
Officers’ Certificates).
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
aggregate Liquidation Amount of the Securities may, by vote, on
behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any 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, notices of all Events of Default actually known to the
Guarantee Trustee, unless such defaults 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, the executive committee or a trust
committee 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.
5
(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.
Section 2.8.
Conflicting
Interests.
The Trust Agreement 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 III.
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 spec