EXHIBIT 4.7
CAPITAL SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
COLORADO BUSINESS BANKSHARES, INC.
AND
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
DATED AS OF_______________, 2000
TABLE OF CONTENTS
RECITALS.......................................................................2
ARTICLE I DEFINITIONS AND INTERPRETATION......................................2
SECTION 1.1. DEFINITIONS AND INTERPRETATION..................................2
ARTICLE II TRUST INDENTURE ACT................................................6
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION................................6
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES..................................6
SECTION 2.3. REPORTS BY THE CAPITAL GUARANTEE TRUSTEE........................6
SECTION 2.4. PERIODIC REPORTS TO CAPITAL GUARANTEE TRUSTEE...................7
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT................7
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.......................................7
SECTION 2.7. EVENT OF DEFAULT; NOTICE........................................7
SECTION 2.8. CONFLICTING INTERESTS...........................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF CAPITAL GUARANTEE TRUSTEE............8
SECTION 3.1. POWERS AND DUTIES OF THE CAPITAL GUARANTEETRUSTEE...............8
SECTION 3.2. CERTAIN RIGHTS OF CAPITAL GUARANTEE TRUSTEE.....................9
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OFGUARANTEE...........11
ARTICLE IV CAPITAL GUARANTEE TRUSTEE.........................................11
SECTION 4.1. CAPITAL GUARANTEE TRUSTEE; ELIGIBILITY.........................11
ARTICLE V GUARANTEE..........................................................13
SECTION 5.1. GUARANTEE......................................................13
SECTION 5.2. WAIVER OF NOTICE AND DEMAND....................................13
SECTION 5.3. OBLIGATIONS NOT AFFECTED.......................................13
SECTION 5.4. RIGHTS OF HOLDERS..............................................14
SECTION 5.5. GUARANTEE OF PAYMENT...........................................14
SECTION 5.6. SUBROGATION....................................................15
SECTION 5.7. INDEPENDENT OBLIGATIONS........................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.........................15
SECTION 6.1. LIMITATION OF TRANSACTIONS.....................................15
SECTION 6.2. RANKING........................................................16
ARTICLE VII TERMINATION......................................................16
SECTION 7.1. TERMINATION....................................................16
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ARTICLE VIII INDEMNIFICATION.................................................16
SECTION 8.1. EXCULPATION....................................................16
SECTION 8.2. INDEMNIFICATION................................................17
ARTICLE IX MISCELLANEOUS.....................................................17
SECTION 9.1. SUCCESSORS AND ASSIGNS.........................................17
SECTION 9.2. AMENDMENTS.....................................................17
SECTION 9.3. NOTICES........................................................17
SECTION 9.4. BENEFIT........................................................18
SECTION 9.5. GOVERNING LAW..................................................18
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CROSS REFERENCE TABLE
SECTION OF TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED GUARANTEE AGREEMENT
------------------------------- -------------------
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Not Applicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Not Applicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Not Applicable
314(c) 2.5
314(d) Not Applicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
317(a) 3.1
317(b) Not Applicable
318 2.1
Note: This Cross-Reference Table does not constitute part of this Agreement and
shall not affect the interpretation of any of its terms or provisions.
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CAPITAL SECURITIES GUARANTEE AGREEMENT
THIS CAPITAL SECURITIES GUARANTEE AGREEMENT (this "Capital Securities
Guarantee"), dated as of ________, 2000, is executed and delivered by COLORADO
BUSINESS BANKSHARES, INC., a Colorado corporation (the "Guarantor"), and FIRST
UNION TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as
trustee (the "Capital Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Capital Securities (as defined herein)
of Colorado Business Bankshares Capital Trust I, a Delaware statutory business
trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of ________, 2000, among the trustees of the Trust named
therein, the Guarantor, as depositor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
on the date hereof up to 2,000,000 Capital securities, having an aggregate
liquidation amount of $20,000,000, designated the ________% Cumulative Capital
Securities (the "Capital Securities");
WHEREAS, as incentive for the Holders to purchase the Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Capital Securities Guarantee, to pay to the Holders of the
Capital 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 Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Capital Securities Guarantee
for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION.
In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Capital Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) terms defined in the Trust Agreement as at the date of execution of
this Capital Securities Guarantee have the same meaning when used in this
Capital Securities Guarantee, unless otherwise defined in this Capital
Securities Guarantee;
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(c) a term defined anywhere in this Capital Securities Guarantee has the
same meaning throughout;
(d) all references to "the Capital Securities Guarantee" or "this Capital
Securities Guarantee" are to this Capital Securities Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Capital Securities Guarantee to Articles and
Sections are to Articles and Sections of this Capital Securities Guarantee,
unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Capital Securities Guarantee, unless otherwise defined in this
Capital Securities Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person; provided, however, that the Authorized Officer signing an
Officers' Certificate given pursuant to Section 314(a)(4) of the Trust Indenture
Act shall be the principal executive, financial or accounting officer of such
Person.
"Business Day" means any day other than a Saturday, Sunday, a day on which
federal or state banking institutions in New York, New York or Wilmington,
Delaware are authorized or required by law, executive order or regulation to
close or a day on which the Corporate Trust Office of the Capital Guarantee
Trustee is closed for business.
"Capital Guarantee Trustee" means First Union Trust Company, National
Association, until a Successor Capital Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Capital Securities
Guarantee and thereafter means each such Successor Capital Guarantee Trustee.
"Corporate Trust Office" means the office of the Capital Guarantee Trustee
at which the corporate trust business of the Capital Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One Xxxxxx Square, 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Debentures" means the ________% Subordinated Debentures due June 30, 2030,
of the Debenture Issuer held by the Property Trustee of the Trust.
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"Debenture Issuer" means Colorado Business Bankshares, Inc., issuer of the
Debentures under the Indenture.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Capital Securities Guarantee.
"Guarantor" means Colorado Business Bankshares, Inc., a Colorado
corporation.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or
made by the Trust: (i) any accumulated and unpaid Distributions (as defined in
the Trust Agreement) that are required to be paid on such Capital Securities,
to the extent the Trust shall have funds available therefor, (ii) the
redemption price, including all accumulated and unpaid Distributions to but
excluding the date of redemption (the "Redemption Price"), to the extent the
Trust has funds available therefor, with respect to any Capital Securities
called for redemption by the Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Debentures to the Holders in exchange for Capital
Securities as provided in the Trust Agreement), the lesser of (a) the aggregate
of the liquidation amount and all accumulated and unpaid Distributions on the
Capital Securities to the date of payment, to the extent the Trust shall have
funds available therefor, and (b) the amount of assets of the Trust remaining
available in either case for distribution to Holders in liquidation of the Trust
(the "Liquidation Distribution"). If an event of default (as defined in the
Indenture) with respect to the Debentures has occurred and is continuing, the
rights of holders of the Common Securities to receive payments under the Trust
Agreement are subordinated to the rights of Holders of Capital Securities to
receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records of
the Trust, of any Capital Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Capital Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Capital Guarantee Trustee or any of their respective
Affiliates.
"Indemnified Person" means the Capital Guarantee Trustee, any Affiliate of
the Capital Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents
of the Capital Guarantee Trustee.
"Indenture" means the Indenture dated as of ________, 2000, among the
Debenture Issuer and First Union Trust Company, National Association, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to the
Property Trustee of the Trust.
"List of Holders" shall have the meaning assigned thereto in Section 2.2(a)
hereof.
"Liquidation Amount" means the stated value of $10 per Capital Security.
"Liquidation Distribution" has the meaning provided therefor in the
definition of Guarantee Payments.
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"Majority in liquidation amount of the Capital Securities" means, except as
provided in the terms of the Capital Securities or, except as provided by the
Trust Indenture Act, a vote by Holder(s) of Capital Securities, voting
separately as a class, of more than 50% of the Liquidation Amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to but excluding the date upon which the
voting percentages are determined) of all Outstanding Capital Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person, at least one of whom shall be
the principal executive officer, principal financial officer, principal
accounting officer, treasurer or any vice president of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each 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 each 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.
"Redemption Price" has the meaning provided therefor in the definition of
Guarantee Payments.
"Responsible Officer" means, with respect to the Capital Guarantee Trustee,
any officer within the Corporate Trust Office of the Capital Guarantee Trustee
with direct responsibility for the administration of this Capital Securities
Guarantee, including any vice-president, any assistant vice-president, any
assistant secretary or other officer or assistant officer of the Capital
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Capital Guarantee Trustee" means a successor Capital Guarantee
Trustee possessing the qualifications to act as Capital Guarantee Trustee under
Section 4.1.
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"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 Capital Securities Guarantee is subject to the provisions of the
Trust Indenture Act that are required to be part of this Capital Securities
Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Capital Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) In the event the Capital Guarantee Trustee is not also acting in the
capacity of the Property Trustee under the Trust Agreement, the Guarantor shall
cause to be provided to the Capital Guarantee Trustee a list, in such form as
the Capital Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Capital Securities ("List of Holders") as of the date (i)
within five (5) Business Days after the last day of March, June, September and
December, and (ii) at any other time within 30 days of receipt by the Guarantor
of a written request for a List of Holders as of a date no more than 15 days
before such List of Holders is given to the Capital Guarantee Trustee; provided,
that the Guarantor shall not be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of Holders
caused to have been given to the Capital Guarantee Trustee by the Guarantor. The
Capital Guarantee Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Capital Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE CAPITAL GUARANTEE TRUSTEE.
On or before July 15 of each year, the Capital Guarantee Trustee shall
provide to the Holders of the Capital Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Capital Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
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SECTION 2.4. PERIODIC REPORTS TO CAPITAL GUARANTEE TRUSTEE.
The Guarantor shall provide to the Capital Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) 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 Capital Guarantee Trustee such evidence
of compliance with any conditions precedent, if any, provided for in this
Capital Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act, consisting of an Officers'
Certificate and an opinion of counsel, each containing the statements required
by Sections 314(c) and 314(e) of the Trust Indenture Act.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of Capital Securities may,
by vote, on behalf of the Holders of all of the Capital Securities, 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 Capital Securities
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Capital Guarantee Trustee shall, within five Business Days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Capital Securities, notices of all Events of
Default actually known to a Responsible Officer of the Capital Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
provided, that, except in the case of a default by Guarantor on any of its
payment obligations, the Capital Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Capital
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Capital Securities.
(b) The Capital Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Capital Guarantee Trustee shall have received
written notice, or of which a Responsible Officer of the Capital Guarantee
Trustee charged with the administration of the Trust Agreement shall have
obtained actual knowledge.
SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described in this
Capital Securities Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE CAPITAL GUARANTEE TRUSTEE.
(a) This Capital Securities Guarantee shall be held by the Capital
Guarantee Trustee for the benefit of the Holders of the Capital Securities, and
the Capital Guarantee Trustee shall not transfer this Capital Securities
Guarantee to any Person except a Holder of Capital Securities exercising his or
her rights pursuant to Section 5.4(b) or to a Successor Capital Guarantee
Trustee on acceptance by such Successor Capital Guarantee Trustee of its
appointment to act as Successor Capital Guarantee Trustee. The right, title and
interest of the Capital Guarantee Trustee shall automatically vest in any
Successor Capital Guarantee Trustee, 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 Capital Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the
Capital Guarantee Trustee has occurred and is continuing, the Capital Guarantee
Trustee shall enforce this Capital Securities Guarantee for the benefit of the
Holders of the Capital Securities.
(c) The Capital 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 Capital Securities Guarantee, and no implied covenants shall be read into
this Capital Securities Guarantee against the Capital Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Capital
Guarantee Trustee, the Capital Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Capital Securities Guarantee, 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 Capital Securities Guarantee shall be construed to
relieve the Capital Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that 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:
(i) the duties and obligations of the Capital Guarantee Trustee shall
be determined solely by the express provisions of this Capital
Securities Guarantee, and the Capital Guarantee Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Capital Securities Guarantee, and no
implied covenants or obligations shall be read into this Capital
Securities Guarantee against the Capital Guarantee Trustee; and
(ii) in the absence of bad faith on the part of the Capital Guarantee
Trustee, the Capital Guarantee Trustee may conclusively rely, as to the
truth of the statements and
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the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Capital Guarantee Trustee and conforming to
the requirements of this Capital Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Capital Guarantee Trustee,
the Capital Guarantee Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Capital Securities Guarantee;
(e) the Capital Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Capital Guarantee
Trustee, unless it shall be proved that the Capital Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was made;
(f) the Capital 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 Capital Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Capital Guarantee Trustee, or
exercising any trust or power conferred upon the Capital Guarantee Trustee under
this Capital Securities Guarantee; and
(g) no provision of this Capital Securities Guarantee shall require the
Capital 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 Capital 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 Capital
Securities Guarantee or indemnity, reasonably satisfactory to the Capital
Guarantee Trustee, against such risk or liability is not reasonably assured to
it.
SECTION 3.2. CERTAIN RIGHTS OF CAPITAL GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) the Capital 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 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 Capital
Securities Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Capital Securities
Guarantee, the Capital Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Capital Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in
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the absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Capital Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof);
(v) the Capital Guarantee Trustee may consult with counsel, the
written advice or opinion of such counsel with respect legal matters
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel
to the Guarantor or any of its Affiliates and may include any of its
employees. The Capital Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Capital
Securities Guarantee from any court of competent jurisdiction;
(vi) the Capital Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Capital
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Capital Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Capital Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Capital Guarantee Trustee's agents,
nominees or custodians) 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 Capital Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Capital Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Capital Securities Guarantee;
(vii) the Capital 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 Capital Guarantee
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Capital Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Capital
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(ix) any action taken by the Capital Guarantee Trustee or its agents
hereunder shall bind the Holders of the Capital Securities, and the
signature of the Capital Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any
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such action. No third party shall be required to inquire as to the
authority of the Capital Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Capital
Securities Guarantee, both of which shall be conclusively evidenced by
the Capital Guarantee Trustee's or its agent's taking such action;
(x) whenever in the administration of this Capital Securities
Guarantee the Capital Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Capital Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation
amount of the Capital Securities, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(b) No provision of this Capital Securities Guarantee shall be deemed to
impose any duty or obligation on the Capital 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
Capital 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
Capital Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The Recitals contained in this Guarantee shall be taken as the statements
of the Guarantor, and the Capital Guarantee Trustee does not assume any
responsibility for their correctness. The Capital Guarantee Trustee makes no
representation as to the validity or sufficiency of this Capital Securities
Guarantee.
ARTICLE IV
CAPITAL GUARANTEE TRUSTEE
SECTION 4.1. CAPITAL GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Capital Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least
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50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), 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 Capital Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Capital Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Capital Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Capital 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 CAPITAL GUARANTEE TRUSTEES.
(a) Subject to Section 4.2(b), the Capital Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Capital Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Capital Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Capital Guarantee Trustee and delivered to the Guarantor.
(c) The Capital Guarantee Trustee appointed to office shall hold office
until a Successor Capital Guarantee Trustee shall have been appointed or until
its removal or resignation. The Capital Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Capital Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Capital Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Capital Guarantee Trustee and delivered to the
Guarantor and the resigning Capital Guarantee Trustee.
(d) If no Successor Capital 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 Capital
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Capital Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Capital Guarantee Trustee.
(e) No Capital Guarantee Trustee shall be liable for the acts or omissions
to act of any Successor Capital Guarantee Trustee.
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(f) Upon termination of this Capital Securities Guarantee or removal or
resignation of the Capital Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Capital Guarantee Trustee all amounts accrued to the
date of such termination, removal or resignation.
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 the Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust 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 Trust to pay such
amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Capital
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the 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 Capital Securities Guarantee 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 Trust of any express or implied agreement,
covenant, term or condition relating to the Capital Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Capital Securities or the extension
of time for the performance of any other obligation under, arising out of, or
in connection with, the Capital Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures);
(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
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terms of the Capital Securities, or any action on the part of the 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 Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Capital Securities;
(f) any failure or omission to receive any regulatory approval or consent
required in connection with the Capital Securities (or the common equity
securities issued by the Trust), including the failure to receive any approval
of the Board of Governors of the Federal Reserve System required for the
redemption of the Capital Securities;
(g) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(h) 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
consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. RIGHTS OF HOLDERS.
(a) Subject to Section 5.4(b), the Holders of a Majority in liquidation
amount of the Capital Securities have the right to direct the time, method and
place of conducting of any proceeding for any remedy available to the Capital
Guarantee Trustee in respect of this Capital Securities Guarantee or exercising
any trust or power conferred upon the Capital Guarantee Trustee under this
Capital Securities Guarantee.
(b) Any Holder of Capital Securities may institute and prosecute a legal
proceeding directly against the Guarantor to enforce its rights under this
Capital Securities Guarantee without first instituting a legal proceeding
against the Trust, the Capital Guarantee Trustee or any other Person. The
Guarantor waives any right or remedy to require that any action be brought first
against the Trust or any other person or entity before proceeding directly
against the Guarantor.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Capital Securities Guarantee creates a guarantee of payment and not of
collection.
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SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Capital Securities against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Capital Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Capital Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Capital Securities Guarantee. 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 Trust with respect to the Capital Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Capital Securities remain outstanding, if there shall have
occurred an Event of Default under this Capital Securities Guarantee, an event
of default under the Indenture, an event of default under the Trust Agreement or
during an Extended Interest Payment Period (as defined in the Indenture), then
(a) the Guarantor shall not and will not permit any Subsidiary to declare or pay
any dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (I) as a result of a reclassification of its capital stock for
another class of its capital stock or (II) declarations or payments of dividends
on capital stock by a Subsidiary of the Company to the Company); (b) the
Guarantor shall not and will not permit any Subsidiary to make any payment of
interest or principal on or repay, repurchase or redeem any debt securities
issued by the Guarantor which rank pari passu with or junior to the Debentures;
(c) the Guarantor shall not make any Guarantee Payments with respect to debt
securities of any Subsidiary of the Guarantor that rank pari passu with or
junior to the Debentures (other than pursuant to this Capital Securities
Guarantee Agreement); and (d) the Guarantor shall not redeem, purchase or
acquire less than all of the outstanding Debentures or any of the Capital
Securities.
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SECTION 6.2. RANKING.
This Capital Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank (i) subordinate and junior in right of payment to
all Senior Debt, Subordinated Debt and Additional Senior Obligations, as defined
in the Indenture, of the Guarantor, to the extent and in the manner set forth in
the Indenture, and the applicable provisions of the Indenture will apply, in all
relevant respects, to the obligations of the Guarantor hereunder and (ii) senior
to the Guarantor's capital stock.
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Capital Securities Guarantee shall terminate upon (i) full payment of
the Redemption Price of all Capital Securities, (ii) upon full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of the
Trust, or (iii) upon distribution of the Debentures to the Holders of the
Capital Securities. Notwithstanding the foregoing, this Capital Securities
Guarantee shall continue to be effective or shall be reinstated, as the case may
be, if at any time any Holder of Capital Securities must restore payment of any
sums paid under the Capital Securities or under this Capital Securities
Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Capital Securities
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Capital Securities Guarantee or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the
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value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Capital Securities might properly be paid.
SECTION 8.2. INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Capital Securities Guarantee.
When the Capital Guarantee Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.1(a)(iv) or (v) of
the Indenture, the expenses including the reasonable charges and expenses of its
counsel) and the compensation for services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Capital Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity permitted
by Section 12.1 of the Indenture or any sale, transfer, conveyance or other
disposition of the property of the Guarantor permitted by Section 12.1 of the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Capital Securities Guarantee.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Capital Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Capital
Securities. The provisions of Article VI of the Trust Agreement with respect
to meetings of Holders of the Capital Securities apply to the giving of such
approval.
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SECTION 9.3. NOTICES.
All notices provided for in this Capital Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Capital Guarantee Trustee, at the Capital Guarantee
Trustee's mailing address set forth below (or such other address as the Capital
Guarantee Trustee may give notice of to the Holders of the Capital Securities):
First Union Trust Company, National Association
One Xxxxxx Square
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Holders
of the Capital Securities):
Colorado Business Bankshares, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Chairman of the Board and
Chief Executive Officer
(c) If given to any Holder of Capital Securities, at the address set forth
on the books and records of the Trust. All such notices 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 9.4. BENEFIT.
This Capital Securities Guarantee is solely for the benefit of the Holders
of the Capital Securities and, subject to Section 3.1(a), is not separately
transferable from the Capital Securities.
SECTION 9.5. GOVERNING LAW.
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE.
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This Capital Securities Guarantee is executed as of the day and year first
above written.
COLORADO BUSINESS BANKSHARES, INC., as Guarantor
By:_________________________________________
Its:_________________________________________
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Capital Guarantee Trustee
By:_________________________________________
Its:_________________________________________
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