_________________________________________________________________
GUARANTEE AGREEMENT
Between
BROAD NATIONAL BANCORPORATION,
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
Dated as of
June 30, 1997
_________________________________________________________________
BNB CAPITAL TRUST
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Guarantee
Agreement
Trust Indenture Act Section Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . 4.1(a)
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
(a)(3). . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . .2.8, 4.1(c)
Section 311(a) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . 2.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
(c) . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . .2.3
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . .2.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . .2.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . .2.5
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . .2.5
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . .2.5
(e) . . . . . . . . . . . . . . . . . . . . . .1.1, 2.5, 3.2
Section 315(a) . . . . . . . . . . . . . . . . . . . . . 3.1(d)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .2.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
(e) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . .1.1, 2.6, 5.4
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . .5.4
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . .5.4
(a)(2) . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .5.3
(c) . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 317(a)(1). . . . . . . . . . . . . . . . Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . .2.1
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Guarantee Agreement.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions . . . . . . . . .1
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application4
SECTION 2.2. List of Holders . . . . . . .4
SECTION 2.3. Reports by the Guarantee Trustee4
SECTION 2.4. Periodic Reports to the
Guarantee Trustee. . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.5. Evidence of Compliance with
Conditions Precedent . . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.6. Events of Default; Waiver . .4
SECTION 2.7. Event of Default; Notice. . .5
SECTION 2.8. Conflicting Interests . . . .5
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE
GUARANTEE TRUSTEE SECTION 3.1.
Powers and Duties of the Guarantee Trustee.. . . .5
SECTION 3.2. Certain Rights of Guarantee
Trustee. . . . . . . . . . . 6
SECTION 3.3. Indemnity . . . . . . . . . .7
SECTION 3.4. Expenses. . . . . . . . . . .7
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility7
SECTION 4.2. Appointment, Removal and
Resignation of the
Guarantee Trustee. . . . . . .8
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee . . . . . . . . . .8
SECTION 5.2. Waiver of Notice and Demand .9
SECTION 5.3. Obligations Not Affected. . .9
SECTION 5.4. Rights of Holders . . . . . .9
SECTION 5.5. Guarantee of Payment. . . . 10
SECTION 5.6. Subrogation . . . . . . . . 10
SECTION 5.7. Independent Obligations . . 10
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.l. Subordination . . . . . . . 10
SECTION 6.2. Pari Passu Guarantees . . . 10
ARTICLE VII. TERMINATION
SECTION 7.1. Termination . . . . . . . . 10
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Successors and Assigns. . . 11
SECTION 8.2. Amendments. . . . . . . . . 11
SECTION 8.3. Notices . . . . . . . . . . 11
SECTION 8.4. Benefit . . . . . . . . . . 12
SECTION 8.5. Interpretation. . . . . . . 12
SECTION 8.6. Governing Law . . . . . . . 12
SECTION 8.7. Counterparts. . . . . . . . 13
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of June 30, 1997 is
executed and delivered by BROAD NATIONAL BANCORPORATION, a New
Jersey corporation (the "Guarantor"), having its principal office
at 000 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, and BANKERS TRUST
COMPANY, a New York banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of BNB
Capital Trust, a Delaware statutory business trust (the "Issuer
Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of June 30, 1997, among Broad
National Bancorporation, as Depositor, Bankers Trust Company, as
Property Trustee (the "Property Trustee"), Bankers Trust
(Delaware), as Delaware Trustee (the "Delaware Trustee")
(collectively, the "Issuer Trustees") and the Holders from time to
time of preferred undivided beneficial ownership interests in the
assets of the Issuer Trust, the Issuer Trust is issuing $11,500,000
aggregate Liquidation Amount (as defined herein) of its 9.50%
Cumulative Trust Preferred Securities, Liquidation Amount $10 per
capital security (the "Preferred Securities"), representing
preferred undivided beneficial ownership interests in the assets of
the Issuer Trust and having the terms set forth in the Trust
Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer
Trust and the proceeds thereof, together with the proceeds from the
issuance of the Issuer Trust's Common Securities (as defined
herein), will be used to purchase the Junior Subordinated
Debentures due June 30, 2027 (as defined in the Trust Agreement)
(the "Junior Subordinated Debentures") of the Guarantor which will
be deposited with Bankers Trust Company, as Property Trustee under
the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires irrevocably and unconditionally
to agree, to the extent set forth herein, to pay to the Holders of
the Preferred 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 of Preferred
Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, and intending to be
legally bound hereby, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to
time of the Preferred 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 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 .
"Additional Amounts" has the meaning specified in the Trust
Agreement.
"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.
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.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer Trust.
"Distributions" means preferential cumulative cash
distributions accumulating from June 30, 1997 and payable quarterly
in arrears on the last day of March, June, September and December
of each year, commencing September 30, 1997, at the annual rate of
9.50% of the Liquidation Amount.
"Event of Default" means (i) a default by the Guarantor in any
of its payment obligations under this Guarantee Agreement, or (ii)
a default by the Guarantor in any other obligation hereunder that
remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the
Issuer Trust: (i) any accrued and unpaid Distributions (as defined
in the Trust Agreement) required to be paid on the Preferred
Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time, (ii) the Redemption Price, with
respect to the Preferred Securities called for redemption by the
Issuer Trust to the extent that the Issuer Trust 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
Trust, unless Junior Subordinated Debentures are distributed to the
Holders, the lesser of (a) the aggregate of the Liquidation Amount
and all accumulated and unpaid Distributions to the date of payment
to the extent the Issuer Trust shall have funds on hand available
to make such payment at such time and (b) the amount of assets of
the Issuer Trust remaining available for distribution to Holders in
liquidation of the Issuer Trust (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee Agreement
and thereafter means each such Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"Holder" means any holder, as registered on the books and
records of the Issuer Trust, of any Preferred Securities; provided,
however, that, in determining whether the holders of the requisite
percentage of Preferred 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 Junior Subordinated Indenture dated as
of June 30, 1997, between Broad National Bancorporation and Bankers
Trust Company, as trustee, as may be modified, amended or
supplemented from time to time.
"Issuer Trust" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"Liquidation Amount" means the stated amount of $10 per
Preferred Security.
"Majority in Liquidation Amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, Preferred
Securities representing more than 50% of the aggregate Liquidation
Amount of all then outstanding Preferred Securities issued by the
Issuer Trust.
"Like Amount" means (a) with respect to a redemption of
Preferred Securities, Preferred securities having a Liquidation
Amount equal to the principal amount of Junior Subordinated
Debentures to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption
Price of such Preferred Securities, (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of
Preferred Securities in connection with a dissolution or
liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the
Preferred Securities of the Holder to whom such junior Subordinated
Debentures are distributed, and (c) with respect to any
distribution of Additional Amounts to Holders of Preferred
Securities, Junior Subordinated Debentures having a principal
amount equal to the Liquidation Amount of the Preferred Securities
in respect of which such distribution is made.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer,
President or a Vice President, and by the Treasurer, an Associate
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee Trustee.
Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in
rendering the Officers' Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer 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 such
officer, 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.
"Preferred Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"Redemption Date" means, with respect to any Preferred
Security to be redeemed, the date fixed for such redemption by or
pursuant to the Trust Agreement; provided that each Junior
Subordinated Debenture Redemption Date (as such term is defined in
the Indenture) and the stated maturity of the Junior Subordinated
Debentures shall be a Redemption Date for a Like Amount of
Preferred Securities.
"Redemption Price" shall have the meaning specified in the
Trust Agreement.
"Responsible Officer" means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust
Office, including any managing director, vice president, assistant
vice president, assistant treasurer, assistant secretary or any
other officer of the Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of
the Indenture, and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Senior Indebtedness" shall have the meaning specified in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee
under Section 4. 1.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated June 30, 1997, executed by Broad National
Bancorporation, as Depositor, Bankers Trust (Delaware), as Delaware
Trustee, and Bankers Trust Company, as Property Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb), as amended.
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such
Act to be a part of and govern this Guarantee Agreement, the
provision of the Trust Indenture Act shall control. If any
provision of this Guarantee Agreement modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Guarantee Agreement as so modified or excluded, as the case may be.
SECTION 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished to
the Guarantee Trustee:
(i) quarterly, not more than 15 days after March 15,
June 15, September 15 and December 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 date; 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.
(b) The Guarantee Trustee shall comply with the requirements
of Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than January 31 of each year, commencing January 31,
1998, the Guarantee Trustee shall provide to the Holders such
reports, if any, as are required by Section 313 of the Trust
Indenture Act in the form and in the manner provided by Section 313
of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, 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.
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 Liquidation Amount of the
Preferred 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
known to a Responsible Officer of the Guarantee Trustee, unless
such Events of Default 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.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer
charged with the administration of this Guarantee Agreement shall
have received 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 hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder 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 be obligated to perform only such duties as
are specifically set forth in this Guarantee Agreement (including
pursuant to Section 2.1), and no implied covenants shall be read
into this Guarantee Agreement against the Guarantee Trustee. If 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:
(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 (including pursuant to Section 2.1), 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 (including pursuant to Section
2.1); 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 Liquidation Amount of the Preferred 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
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:
(i) The Guarantee Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, 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 conclusively 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, and the advice or written 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 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.
(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, 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 negligence or
willful misconduct 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 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 instructions are received and (C) shall be fully protected in
acting in accordance with such instructions.
(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, its
directors, officers, employees and agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the
Guarantee Trustee, its directors, officers, employees and agents,
arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs and
expenses of defending against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien
or charge on any Guarantee Payments as a result of any amount due
to it under this Guarantee Agreement.
SECTION 3.4. Expenses.
The Guarantor shall from time to time reimburse the Guarantee
Trustee for its reasonable expenses and costs (including reasonable
attorneys' or agents' fees) incurred in connection with the
performance of its duties hereunder.
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 has 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(b).
(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) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this
Article shall become effective until the acceptance of appointment
by the Successor Guarantee Trustee by written instrument executed
by the Successor Guarantee Trustee and delivered to the Holders and
the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a
Guarantee Trustee may resign at any time by giving written notice
thereof to the Holders. The Guarantee Trustee shall appoint a
successor by requesting from at least three Persons meeting the
eligibility requirements such Person's expenses and charges to
serve as the Guarantee Trustee, and selecting the Person who agrees
to the lowest expenses and charges. If the instrument of
acceptance by the Successor Guarantee Trustee shall not have been
delivered to the Guarantee Trustee within 60 days after the giving
of such notice of resignation, the Guarantee Trustee may petition,
at the expense of the Guarantor, any court of competent
jurisdiction for the appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any
time by Act (within the meaning of Section 6.8 of the Trust
Agreement) of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, delivered to the Guarantee
Trustee.
(d) If a resigning Guarantee Trustee shall fail to appoint a
successor, or if a Guarantee Trustee shall be removed or become
incapable of acting as Guarantee Trustee, or if any vacancy shall
occur in the office of any Guarantee Trustee for any cause, the
Holders of the Preferred Securities, by Act of the Holders of
record of not less than 25% in aggregate Liquidation Amount of the
Preferred Securities then outstanding delivered to such Guarantee
Trustee, shall promptly appoint a successor Guarantee Trustee. If
no Successor Guarantee Trustee shall have been so appointed by the
Holders of the Preferred Securities and such appointment accepted
by the Successor Guarantee Trustee, any Holder, on behalf of
himself and all others similarly situated, may petition any court
of competent jurisdiction for the appointment of a Successor
Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full on a subordinated basis as set forth in Section 6.1 hereof to
the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer Trust), as and when
due, regardless of any defense, right of set-off or counterclaim
which the Issuer Trust may have or assert, except the defense of
payment. 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 Trust to pay such
amounts to the Holders. The Guarantor shall give prompt written
notice to the Guarantee Trustee in the event it makes any direct
payment hereunder.
SECTION 5.2. Waiver of Notice and Demand
The Guarantor hereby waives 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, the Issuer Trust or
any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and
all other notices and demands.
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 Trust of any express
or implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer
Trust;
(b) the extension of time for the payment by the Issuer Trust
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 Junior Subordinated
Debentures as so provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the terms
of the Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Preferred 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 Preferred Securities, or any action on the part of the
Issuer Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer Trust or any of the
assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred 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
(other than payment of the underlying obligation), 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 Liquidation Amount of the
Preferred 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 Trust or
any other Person.
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 Trust) or
upon the distribution of Junior Subordinated Debentures to Holders
as provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of
the Holders against the Issuer Trust in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement;
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, 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 Trust with respect to
the Preferred 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. COVENANTS AND SUBORDINATION
SECTION 6.l. Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Indebtedness of the Guarantor to the
extent and in the manner set forth in the Indenture with respect to
the Junior Subordinated Debentures, and the provisions of Article
XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Guarantor hereunder. The obligations of the
Guarantor hereunder do not constitute Senior Indebtedness of the
Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee
Agreement shall rank pari passu with any similar guarantee
agreements issued by the Guarantor on behalf of the holders of
preferred or capital securities issued by the Issuer Trust and with
any other security, guarantee or other obligation that is expressly
stated to rank pari passu with the obligations of the Guarantor
under this Guarantee Agreement.
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 Preferred Securities, (ii) the distribution of Junior
Subordinated Debentures to the Holders in exchange for all of the
Preferred Securities or (iii) full payment of the amounts payable
in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. 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 is
required to repay any sums paid with respect to Preferred
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 Preferred Securities then outstanding.
Except in connection with a consolidation, merger or sale involving
the Guarantor that is permitted under Article VIII of the Indenture
and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment that is not
in accordance with these provisions shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not materially
adversely affect the rights of the Holders (in which case no
consent of the Holders will be required), this Guarantee Agreement
may only be amended with the prior approval of the Holders of not
less than a Majority in Liquidation Amount of the Preferred
Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of
such approval.
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 (confirmed
by delivery of the original) or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address or telecopy
number set forth below or such other address or telecopy number or
to the attention of such other Person as the Guarantor may give
notice to the Holders:
Broad National Bancorporation
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Office of the Secretary
(b) if given to the Issuer Trust, in care of the Guarantee
Trustee, at the Issuer Trust's (and the Guarantee Trustee's)
address set forth below or such other address or telecopy number or
to the attention of such other Person as the Guarantee Trustee on
behalf of the Issuer Trust may give notice to the Holders:
c/o Broad National Bancorporation
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Office of the Secretary
with a copy to:
Bankers Trust Company
Four Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust and Agency Group;
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer Trust.
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.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Preferred
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;
(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 WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY HAS BEEN LEFT BLANK]
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
BROAD NATIONAL BANCORPORATION
By:_____________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
and not in its individual
capacity
By:_______________________________
Name:
Title:
