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*


 


	
  Section of

  Trust Indenture Act

  of 1939, as amended

  	
   

  	
  Section of

  Guarantee Agreement

  
	
   

  	
   

  	
   

  
	
  310(a).

  	
   

  	
   

  	
  4.1(a)

  
	
  310(b).

  	
   

  	
   

  	
  4.1(c), 2.8

  
	
  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)

  
	
  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).

  	
   

  	
   

  	
  1.1, 2.5, 3.2

  
	
  314(f).

  	
   

  	
   

  	
  3.2

  
	
  315(a).

  	
   

  	
   

  	
  3.1(d)

  
	
  315(b).

  	
   

  	
   

  	
  2.7

  
	
  315(c).

  	
   

  	
   

  	
  3.1(c)

  
	
  315(d).

  	
   

  	
   

  	
  3.1(d)

  
	
  315(e).

  	
   

  	
   

  	
  2.1

  
	
  316(a).

  	
   

  	
   

  	
  2.6, 5.4

  
	
  316(b).

  	
   

  	
   

  	
  5.3

  
	
  316(c).

  	
   

  	
   

  	
  2.1

  
	
  317(a).

  	
   

  	
   

  	
  Inapplicable

  
	
  317(b).

  	
   

  	
   

  	
  Inapplicable

  
	
  318(a).

  	
   

  	
   

  	
  2.1(b)

  
	
  318(b).

  	
   

  	
   

  	
  2.1

  
	
  318(c).

  	
   

  	
   

  	
  2.1

  



 






*                 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 specifically set forth in this Guarantee
Agreement, and no implied covenants shall be read into this Guarantee Agreement
against the Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6), the Guarantee
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.


 


(d)                                 No
provision of this Guarantee Agreement shall be construed to relieve the Guarantee
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:


 


6

















 


(i)                                     prior
to the occurrence of any Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:


 


(A)                              the
duties and obligations of the Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee Agreement, and the Guarantee Trustee
shall not be liable except for the performance of such duties and obligations
as are specifically set forth in this Guarantee Agreement; and


 


(B)                                in
the absence of bad faith on the part of the Guarantee Trustee, the Guarantee
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to the requirements
of this Guarantee Agreement; but in the case of any such certificates or opinions
that by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they conform to
the requirements of this Guarantee Agreement;


 


(ii)                                  the
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that the Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;


 


(iii)                               the
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a Majority in aggregate 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 Agreement; and


 


(iv)                              no
provision of this Guarantee Agreement shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.


 


Section 3.2.                Certain Rights of
Guarantee Trustee.


 


(a)                                  Subject
to the provisions of Section 3.1:


 


7

















 


(i)                                     The
Guarantee Trustee may rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably believed
by it to be genuine and to have been signed, sent or presented by the proper
party or parties.


 


(ii)                                  Any
direction or act of the Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by an Officers’ Certificate unless otherwise
prescribed herein.


 


(iii)                               Whenever,
in the administration of this Guarantee Agreement, the Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers’ Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly delivered
by the Guarantor.


 


(iv)                              The
Guarantee Trustee may consult with legal counsel of its selection, and the
advice or opinion of such legal counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.


 


(v)                                 The
Guarantee Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee Agreement at the request or direction of
any Holder, unless such Holder shall have provided to the Guarantee Trustee
such adequate security and indemnity as would satisfy a reasonable person in
the position of the Guarantee Trustee, against the costs, expenses (including
attorneys’ fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Guarantee Trustee; provided that
nothing contained in this Section 3.2(a)(v) shall be taken to relieve
the Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Guarantee
Agreement.


 


(vi)                              The
Guarantee Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, 


 


8

















 


but the Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit.


 


(vii)                           The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents or attorneys,
and the Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care by
it hereunder.


 


(viii)                        Whenever
in the administration of this Guarantee Agreement the Guarantee Trustee shall
deem it desirable to receive written instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such written instructions are
received, and (C) shall be protected in acting in accordance with such
written instructions.


 


(ix)                                The
Guarantee Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Guarantee Agreement.


 


(b)                                 No
provision of this Guarantee Agreement shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.


 


Section 3.3.                Indemnity.


 


The
Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.


 


9
















 


ARTICLE
IV.



GUARANTEE TRUSTEE


 


Section 4.1.                Guarantee Trustee:
Eligibility.


 


(a)                                  There
shall at all times be a Guarantee Trustee which shall:


 


(i)                                     not
be an Affiliate of the Guarantor; and


 


(ii)                                  be
a Person that is eligible pursuant to the Trust Indenture Act to act as such
and have a combined capital and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority, then, for the purposes of this Section and to the
extent permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.


 


(b)                                 If
at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a),
the Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).


 


(c)                                  If
the Guarantee Trustee has or shall acquire any “conflicting interest” within
the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.


 


Section 4.2.                Appointment,
Removal and Resignation of the Guarantee Trustee.


 


(a)                                  Subject
to Section 4.2(b), the Guarantee Trustee may be appointed or removed
without cause at any time by the Guarantor.


 


(b)                                 The
Guarantee Trustee shall not be removed until a Successor Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Guarantee Trustee and delivered to the Guarantor. If an instrument
of acceptance by a Successor Guarantee Trustee shall not have been delivered to
the Guarantee Trustee within 30 days after such removal, the Guarantee Trustee
being removed may petition any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.


 


(c)                                  The
Guarantee Trustee appointed hereunder shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for prior
or 


 


10

















 


subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee Trustee.


 


(d)                                 If
no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery
to the Guarantor of an instrument of resignation, the resigning Guarantee
Trustee may petition, at the expense of the Guarantor, any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper,
appoint a Successor Guarantee Trustee.


 


ARTICLE
V.



GUARANTEE


 


Section 5.1.                Guarantee.


 


The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by or
on behalf of the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim which the Issuer may have or assert. The Guarantor’s
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.


 


Section 5.2.                Waiver of Notice
and Demand.


 


The
Guarantor hereby waives, to the extent it may be lawfully do so, notice of
acceptance of the Guarantee Agreement and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.


 


Section 5.3.                Obligations Not
Affected.


 


The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:


 


(a)                                  the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term or
condition relating to the Securities to be performed or observed by the Issuer;


 


11

















 


(b)                                 the
extension of time for the payment by the Issuer of all or any portion of the
Distributions (other than an extension of time for payment of Distributions
that results from the extension of any interest payment period on the
Debentures as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Securities or the
extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Securities;


 


(c)                                  any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred on
the Holders pursuant to the terms of the Securities, or any action on the part
of the Issuer 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 Issuer or any of the assets of the Issuer;


 


(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 Holders to give notice to, or obtain the consent
of, the Guarantor with respect to the happening of any of the foregoing.


 


Section 5.4.                Rights of Holders.


 


The
Guarantor expressly acknowledges that: (i) this Guarantee Agreement will
be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in aggregate 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 Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer or any other Person.


 


12

















 


Section 5.5.                Guarantee of
Payment


 


This
Guarantee Agreement creates a guarantee of payment and not of collection. This
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the
Issuer) or upon distribution of Debentures to Holders as provided in the Trust
Agreement.


 


Section 5.6.                Subrogation.


 


The
Guarantor shall be subrogated to all (if any) rights of the Holders against the
Issuer in respect of any amounts paid to the Holders by the Guarantor under
this Guarantee Agreement and shall have the right to waive payment by the
Issuer pursuant to Section 5.1; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under
this Guarantee Agreement, if, at the time of any such payment, any amounts are
due and unpaid under this Guarantee Agreement. If any amount shall be paid to
the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.


 


Section 5.7.                Independent
Obligations.


 


The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer with respect to the Securities and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.3 hereof.


 


ARTICLE
VI.



SUBORDINATION


 


Section 6.1.                Subordination.


 


The
obligations of the Guarantor under this Guarantee Agreement will constitute
unsecured obligations of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Indebtedness (as defined in the Indenture with
respect to the series of Debentures issued thereunder in respect of the Capital
Securities) of the Guarantor, except those made pari passu
or subordinate to such obligations expressly by their terms in the same manner
as set forth in Article XIV of the Indenture.


 


13

















 


Section 6.2.                Subordination of
Common Securities.


 


If a
Debenture Event of Default (as defined in the Trust Agreement) has occurred and
is continuing, the rights of the Holders of the Common Securities to receive
Guarantee Payments under this Guarantee shall be subordinated to the rights of
the Holders of the Capital Securities to receive Guarantee Payments under this
Guarantee.


 


ARTICLE
VII.



TERMINATION


 


Section 7.1.                Termination.


 


This
Guarantee Agreement shall terminate and be of no further force and effect upon (i) full
payment of the Redemption Price of all Securities, (ii) the distribution
of Debentures to the Holders in exchange for all of the Securities or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with
respect to Securities or this Guarantee Agreement.


 


ARTICLE
VIII.



MISCELLANEOUS


 


Section 8.1.                Successors and
Assigns.


 


All
guarantees and agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Securities then
outstanding. Except in connection with a consolidation, merger, conveyance or
transfer involving the Guarantor that is permitted under Article X of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor’s obligations hereunder, the Guarantor shall not assign
its obligations hereunder.


 


Section 8.2.                Amendments.


 


Except
with respect to any changes which do not adversely affect the rights of the
Holders or the Guarantee Trustee in any material respect (in which case no
consent of the Holders or the Guarantee Trustee, as the case may be, will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than a Majority in aggregate Liquidation Amount of
all the outstanding Securities and of the Guarantee Trustee. The provisions of Article VI
of the Trust Agreement concerning meetings of the Holders shall apply to the
giving of such approval.


 


14

















 


Section 8.3.                Notices.


 


Any
notice, request or other communication required or permitted to be given
hereunder shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:


 


(a)                                  if
given to the Guarantor, to the address set forth below or such other address,
facsimile number or to the attention of such other Person as the Guarantor may
give notice to the Holders:


 


TCF Financial Corporation

200 Lake Street East


Wayzata, Minnesota 55391-1693


Facsimile No.: (952) 475-7975

Attention: General Counsel


 


(b)                                 if
given to the Issuer, in care of the Guarantee Trustee, at the Issuer’s (and the
Guarantee Trustee’s) address set forth below or such other address as the
Guarantee Trustee on behalf of the Issuer may give notice to the Holders:


 


TCF Capital I


c/o TCF Financial Corporation


200 Lake Street East


Wayzata, Minnesota 55391-1693


Facsimile No.: (952) 475-7975

Attention: General Counsel


 


with a copy to:


 


Wilmington Trust Company

Rodney Square North


1100 North Market Street


Wilmington, Delaware  19890-1600


 


Facsimile No.: (302) 636-4140
 Attention: Corporate Trust Administration


 


(c)                                  if
given to any Holder, at the address set forth on the books and records of the
Issuer.


 


All
notices hereunder shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the
date of such refusal or inability to deliver.


 


15

















 


Section 8.4.                Benefit.


 


This
Guarantee Agreement is solely for the benefit of the Holders and is not
separately transferable from the Securities.


 


Section 8.5.                Interpretation.


 


In
this Guarantee Agreement, unless the context otherwise requires:


 


(a)                                  capitalized
terms used in this Guarantee Agreement but not defined in the preamble hereto
have the respective meanings assigned to them in Section 1.1, and
capitalized or otherwise defined terms used in this Guarantee Agreement but not
otherwise defined herein have the respective meanings assigned to them in the
Trust Agreement as in effect on the date hereof;


 


(b)                                 a
term defined anywhere in this Guarantee Agreement has the same meaning
throughout;


 


(c)                                  all
references to “the Guarantee Agreement” or “this Guarantee Agreement” are to
this Guarantee Agreement as modified, supplemented or amended from time to
time;


 


(d)                                 all
references in this Guarantee Agreement to Articles and Sections are to Articles
and Sections of this Guarantee Agreement unless otherwise specified;


 


(e)                                  a
term defined in the Trust Indenture Act has the same meaning when used in this
Guarantee Agreement unless otherwise defined in this Guarantee Agreement or
unless the context otherwise requires;


 


(f)                                    a
reference to the singular includes the plural and vice versa; and


 


(g)                                 the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.


 


Section 8.6.                Governing Law.


 


THIS
GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 8.7.                Counterparts


 


This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.


 


16

















 


This
GUARANTEE AGREEMENT is executed as of the day and year first above written.


 


	
   

  	
  TCF FINANCIAL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ James S.
  Broucek

  
	
   

  	
   

  	
  Name:

  	
  James S. Broucek

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President
  and

  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  as Guarantee Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Michael H.
  Wass

  
	
   

  	
   

  	
  Name:

  	
  Michael H. Wass

  
	
   

  	
   

  	
  Title:

  	
  Financial Services
  Officer