EXHIBIT 4.7
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PREFERRED SECURITIES GUARANTEE AGREEMENT
NATIONAL CITY BANCSHARES, INC.
(as Guarantor)
and
WILMINGTON TRUST COMPANY
(as Preferred Guarantee Trustee)
DATED AS OF _______________ ____, 1998
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TABLE OF CONTENTS
1. Definitions And Interpretation. . . . . . . . . . . . . . 1
1.1 Definitions and Interpretations . . . . . . . . . . . 1
2. Trust Indenture Act.. . . . . . . . . . . . . . . . . . . 5
2.1 Trust Indenture Act; Application. . . . . . . . . . 5
2.2 Lists of Holders of Securities . . . . . . . . . . . 5
2.3 Reports by the Preferred Guarantee Trustee . . . . . 5
2.4 Periodic Reports to Preferred Guarantee Trustee. . . 6
2.5 Evidence of Compliance with Conditions Precedent.. . 6
2.6 Events of Default; Waiver. . . . . . . . . . . . . . 6
2.7 Event of Default; Notice . . . . . . . . . . . . . . 6
2.8 Conflicting Interests. . . . . . . . . . . . . . . . 6
3. Powers, Duties And Rights Of Preferred Guarantee Trustee. 7
3.1 Powers and Duties of the Preferred Guarantee
Trustee. . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Certain Rights of Preferred Guarantee Trustee. . . . 9
3.3 Not Responsible for Recitals or Issuance of
Guarantee. . . . . . . . . . . . . . . . . . . . . . 11
4. Preferred Guarantee Trustee.. . . . . . . . . . . . . . . 11
4.1 Preferred Guarantee Trustee; Eligibility.. . . . . . 11
4.2 Appointment, Removal and Resignation of Preferred
Guarantee Trustee. . . . . . . . . . . . . . . . . . 12
5. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1 Guarantee. . . . . . . . . . . . . . . . . . . . . . 13
5.2 Waiver of Notice and Demand. . . . . . . . . . . . . 13
5.3 Obligations Not Affected . . . . . . . . . . . . . . 13
5.4 Rights of Holders. . . . . . . . . . . . . . . . . . 14
5.5 Guarantee of Payment . . . . . . . . . . . . . . . . 14
5.6 Subrogation. . . . . . . . . . . . . . . . . . . . . 14
5.7 Independent Obligations. . . . . . . . . . . . . . . 15
6. Limitation Of Transactions; Subordination . . . . . . . . 15
6.1 Limitation of Transactions . . . . . . . . . . . . . 15
6.2 Ranking. . . . . . . . . . . . . . . . . . . . . . . 15
7. Termination . . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Termination. . . . . . . . . . . . . . . . . . . . . 15
8. Indemnification . . . . . . . . . . . . . . . . . . . . . 16
8.1 Exculpation. . . . . . . . . . . . . . . . . . . . . 16
8.2 Indemnification. . . . . . . . . . . . . . . . . . . 16
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9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 16
9.1 Successors and Assigns . . . . . . . . . . . . . . . 16
9.2 Amendments . . . . . . . . . . . . . . . . . . . . . 16
9.3 Notices. . . . . . . . . . . . . . . . . . . . . . . 17
9.4 Benefit. . . . . . . . . . . . . . . . . . . . . . . 17
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . 17
TRUST INDENTURE ACT
CROSS-REFERENCE TABLE
Section of Trust Indenture
Act of 1939, Amended Section of Guarantee Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . .2.8, 4.1(c)
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, 5.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2
317(a) . . . . . . . . . . . . . . . . . . . . . Not Applicable
317(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
NOTE: This reconciliation shall not for any purpose be deemed
to be part of the Guarantee Agreement.
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This Preferred Securities Guarantee Agreement (the "Preferred
Securities Guarantee"), dated as of _______________ ____, 1998, is executed
by and between National City Bancshares, Inc. (the "Guarantor"), an Indiana
corporation, and Wilmington Trust Company, a Delaware banking corporation,
as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of NCBE Capital Trust I ("NCBE Trust"), a Delaware statutory
business trust.
RECITALS:
A. Whereas, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of ________ __, 1998, among the trustees of
NCBE Trust named therein, the Guarantor, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of NCBE Trust,
NCBE Trust is issuing on the date hereof ________ preferred securities,
having an aggregate liquidation amount of $______________, designated the
_____% Cumulative Trust Preferred Securities (the "Preferred Securities") and
having the terms set forth in the Trust Agreement;
B. Whereas, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally
to agree, to the extent set forth in this Preferred Securities Guarantee, 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.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows: in
consideration of the purchase by each Holder of Preferred Securities, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Preferred Securities Guarantee for the
benefit of the Holders.
1. DEFINITIONS AND INTERPRETATION.
1.1 DEFINITIONS AND INTERPRETATIONS.
(a) In this Preferred Securities Guarantee, unless the
context otherwise requires:
(1) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(2) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(3) all references to "the Preferred Securities Guarantee"
or "this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended from time
to time;
(4) all references in this Preferred Securities Guarantee to
Sections are to Sections of this Preferred Securities Guarantee,
unless otherwise specified;
(5) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred Securities Guarantee or unless
the context otherwise requires; and
(6) a reference to the singular includes the plural and vice
versa.
(b) "Additional Senior Obligations" has the same meaning as given
to that term in the Indenture.
(c) "Affiliate" means, with respect to a specified Person, (i) any
Person directly or indirectly owning, controlling or holding with power
to vote 10% or more of the outstanding voting securities or other
ownership interests of the specified Person, (ii) any Person 10% or more
of whose outstanding voting securities or other ownership interests are
directly or indirectly owned, controlled or held with power to vote by
the specified Person, (iii) any Person directly or indirectly controlling,
controlled by, or under common control with the specified Person, (iv) a
partnership in which the specified Person is a general partner, (v) any
officer or director of the specified Person, and (vi) if the specified
Person is an individual, any entity of which the specified Person is an
officer, director or general partner.
(d) "Business Day" means any day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York
are authorized or required by law or executive order to remain closed,
or (c) a day on which the Corporate Trust Office of the Property
Trustee (as defined in the Trust Agreement) or the Corporate Trust
Office of the Debenture Trustee is closed for business.
(e) "Corporate Trust Office" means the office of the
Preferred Guarantee Trustee at which the corporate trust business of
the Preferred Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx, 00000-0000, Attn: Corporate Trust Administration.
(f) "Covered Person" means any Holder or beneficial owner of
Preferred Securities.
(g) "Debentures" means the series of subordinated debt securities
of the Guarantor designated the ___% Subordinated Debentures due 2028
issued pursuant to the Indenture.
(h) "Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Preferred Securities
Guarantee.
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(i) "Guarantee Payments" means the following payments or
distributions without duplication, with respect to the Preferred
Securities, to the extent not paid or made by NCBE Trust: (i) any
accumulated and unpaid Distributions (as defined in the Trust
Agreement) that are required to be paid on such Preferred Securities to
the extent NCBE Trust shall have funds legally and immediately
available therefor, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price") to the extent NCBE Trust has funds legally and
immediately available therefor, with respect to any Preferred
Securities called for redemption by NCBE Trust, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of NCBE
Trust (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Trust Agreement), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid Distributions on the Preferred
Securities to the date of payment, to the extent NCBE Trust shall have
funds legally and immediately available therefor and (b) the amount of
assets of NCBE Trust remaining available for distribution to Holders in
liquidation of NCBE Trust (in either case, the "Liquidation
Distribution").
(j) "Holder" shall mean any holder, as registered on the books
and records of NCBE 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
or any Affiliate of the Guarantor.
(k) "Indemnified Person" means the Preferred Guarantee Trustee,
any Affiliate of the Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Preferred Guarantee Trustee.
(l) "Indenture" means the Indenture dated as of ______________,
1998 between the Guarantor (the "Debenture Issuer") and Wilmington
Trust Company, 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 NCBE Trust.
(m) "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 liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the
date upon which the voting percentages are determined) of all Preferred
Securities.
(n) "Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Preferred Securities
Guarantee shall include:
(1) a statement that each officer signing the
Officers' Certificate has read the covenant or condition
and the definition relating thereto;
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(2) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(3) 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
(4) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
(o) "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.
(p) "Preferred Guarantee Trustee" means Wilmington Trust Company,
until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
(q) "Responsible Officer" means, with respect to the Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the Corporate Trust Officer of
the Preferred 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.
(r) "Senior Debt" has the same meaning as given to that term in
the Indenture.
(s) "Successor Preferred Guarantee Trustee" means a successor
Preferred Guarantee Trustee possessing the qualifications to act as
Preferred Guarantee Trustee under Section 4.1.
(t) "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
2. TRUST INDENTURE ACT.
2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of
this Preferred Securities Guarantee and shall, to the extent
applicable, be governed by such provisions; and
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(b) If and to the extent that any provision of this Preferred
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.
2.2 LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the
Preferred Securities ("List of Holders") as of such date, (i) within 1
Business Day after January 1 and June 30 of each year, 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 14 days before
such List of Holders is given to the Preferred 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 given to the Preferred Guarantee
Trustee by the Guarantor. The Preferred Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
2.3 REPORTS BY THE PREFERRED GUARANTEE TRUSTEE. Within
60 days after May 15 of each year, the Preferred Guarantee Trustee shall
provide to the Holders of the Preferred 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
Preferred Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
2.4 PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE. The
Guarantor shall provide to the Preferred 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.
2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Preferred Securities Guarantee 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.
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 of all of the Preferred 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 Preferred Securities Guarantee, but no
such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
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2.7 EVENT OF DEFAULT; NOTICE.
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities, notices of
all Events of Default actually known to a Responsible Officer of the
Preferred Guarantee Trustee, unless such defaults have been cured
before the giving of such notice; provided, that, except in the case of
a default in the payment of any Guarantee Payment, the Preferred
Guarantee Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Preferred Guarantee Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee
Trustee shall have received written notice thereof, or of which a
Responsible Officer of the Preferred Guarantee Trustee charged with the
administration of the Trust Agreement shall have obtained actual
knowledge.
2.8 CONFLICTING INTERESTS. The Trust Agreement shall be deemed
to be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
3. POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE
TRUSTEE.
3.1 POWERS AND DUTIES OF THE PREFERRED GUARANTEE
TRUSTEE.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a
Holder of Preferred Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Preferred Guarantee Trustee on
acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The
right, title and interest of the Preferred Guarantee Trustee shall
automatically vest in any Successor Preferred 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 Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is
continuing, the Preferred Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders of the
Preferred Securities.
(c) The Preferred 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 Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred Securities
Guarantee against the Preferred Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to
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Section 2.6) and is actually known to a Responsible Officer of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred
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 Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) 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 Preferred
Guarantee Trustee shall be determined solely by the
express provisions of this Preferred Securities
Guarantee, and the Preferred Guarantee Trustee shall
not be liable except for the performance of such
duties and obligations as are specifically set forth
in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into
this Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Preferred Guarantee Trustee, the Preferred
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 Preferred Guarantee Trustee
and conforming to the requirements of this Preferred
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
Preferred Guarantee Trustee, the Preferred Guarantee
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(2) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
of the Preferred Guarantee Trustee, unless it shall be proved that
the Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(3) the Preferred 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
Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee; and
(4) no provision of this Preferred Securities Guarantee
shall require the Preferred 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 Preferred
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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 Preferred Securities
Guarantee or indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
3.2 CERTAIN RIGHTS OF PREFERRED GUARANTEE
TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(1) The Preferred 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.
(2) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently
evidenced by a direction or an Officers' Certificate.
(3) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall
deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Preferred 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, shall be
promptly delivered by the Guarantor.
(4) The Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument
(or any rerecording, refiling or registration thereof).
(5) The Preferred Guarantee Trustee may consult with
counsel, and the written advice or opinion of such counsel with
respect to 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 Preferred Guarantee Trustee
shall have the right at any time to seek instructions
concerning the administration of this Preferred Securities
Guarantee from any court of competent jurisdiction.
(6) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it
by this Preferred Securities Guarantee at the request or
direction of any Holder, unless such Holder shall have provided
to the Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred 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
Preferred Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(6) shall be
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taken to relieve the Preferred Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Preferred
Securities Guarantee.
(7) The Preferred 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, requests, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Preferred Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(8) The Preferred 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 Preferred 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.
(9) Any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee
Trustee or its agents alone shall be sufficient and effective
to perform any such action. No third party shall be required to
inquire as to the authority of the Preferred Guarantee Trustee
to so act or as to its compliance with any of the terms and
provisions of this Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the Preferred
Guarantee Trustee's or its agent's taking such action.
(10) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem
it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Preferred Guarantee Trustee (i) may request instructions from
the Holders of a Majority in liquidation amount of the
Preferred 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 Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred 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 Preferred 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 Preferred
Guarantee Trustee shall be construed to be a duty.
3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Preferred Securities Guarantee shall be taken
as the statements of the Guarantor, and the Preferred Guarantee Trustee does
not assume any responsibility for their correctness. The Preferred Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Preferred Securities Guarantee.
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4. PREFERRED GUARANTEE TRUSTEE.
4.1 PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Preferred
Guarantee Trustee which shall:
(1) not be an Affiliate of the Guarantor; and
(2) 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 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)(2), 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 Preferred Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF
PREFERRED GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Preferred
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Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee
Trustee and delivered to the Guarantor and the resigning Preferred
Guarantee Trustee.
(d) If no Successor Preferred 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 Preferred Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Guarantee
Trustee all amounts accrued to the date of such termination, removal or
resignation.
5. GUARANTEE.
5.1 GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full, on a subordinated basis
as set forth in Section 6, to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by NCBE Trust),
as and when due, regardless of any defense, right of set-off or
counterclaim that NCBE 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
NCBE Trust to pay such amounts to the Holders.
5.2 WAIVER OF NOTICE AND DEMAND. The Guarantor
hereby waives notice of acceptance of this Preferred 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 NCBE 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.
5.3 OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this
Preferred 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 NCBE
Trust of any express or implied agreement, covenant,
term or condition relating to the Preferred Securities
to be performed or observed by NCBE Trust;
(b) the extension of time for the payment by
NCBE Trust of all or any portion of the Distributions,
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
(other than an
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extension of time for payment of Distributions that
results from the extension of any interest payment period
on the Debentures or any extension of the maturity date of
the Debentures permitted by the Indenture);
(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 NCBE 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, NCBE Trust or any of the assets of NCBE
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 circumstances whatsoever that
might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give
notice to, or obtain the consent of, the Guarantor with respect
to the happening of any of the foregoing.
5.4 RIGHTS OF HOLDERS.
(a) 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 Preferred
Guarantee Trustee in respect of this Preferred
Securities Guarantee or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under
this Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may
institute a legal proceeding directly against the
Guarantor to enforce its rights under this Preferred
Securities Guarantee, without first instituting a
legal proceeding against NCBE Trust, the Preferred
Guarantee Trustee or any other Person.
5.5 GUARANTEE OF PAYMENT. This Preferred
Securities Guarantee creates a guarantee of payment and not of
collection. This Preferred Securities Guarantee will not be
discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by NCBE Trust)
or upon the distribution of the Debentures to the Holders as
provided in the Trust Agreement.
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5.6 SUBROGATION. The Guarantor shall be
subrogated to all (if any) rights of the Holders of Preferred
Securities against NCBE Trust in respect of any amounts paid to
such Holders by the Guarantor under this Preferred 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
Preferred Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Preferred
Securities Guarantee or any payments are due to the Holder of
the Preferred Securities under the Trust 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.
5.7 INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of
the obligations of NCBE 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 Preferred Securities Guarantee notwithstanding
the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
6. LIMITATION OF TRANSACTIONS; SUBORDINATION.
6.1 LIMITATION OF TRANSACTIONS. So long as any
Preferred Securities remain outstanding, if there shall have
occurred an Event of Default or an event of default under the
Trust Agreement, then (a) the Guarantor shall not 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, (b) the Guarantor shall
not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Guarantor which rank pari passu with
or junior to the Debentures or (c) the Guarantor shall not make
any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantee); provided,
however, the Guarantor may declare and pay a stock dividend
where the dividend stock is the same stock as that on which the
dividend is being paid.
6.2 RANKING. This Preferred 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 and Additional Senior Obligations of
the Guarantor, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and
with any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any
Affiliate of the Guarantor, and (iii) senior to the Guarantor's
common stock.
7. TERMINATION.
7.1 TERMINATION. This Preferred Securities
Guarantee shall terminate upon (i) full payment of the
Redemption Price of all Preferred Securities, (ii) upon full
payment of the amounts payable in accordance with the Trust
Agreement upon liquidation of NCBE Trust or (iii) upon
distribution of the Debentures to the holders of the Preferred
Securities. Notwithstanding the foregoing, this
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Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any
sums paid under the Preferred Securities or under this
Preferred Securities Guarantee.
8. INDEMNIFICATION.
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 Preferred
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 Preferred 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 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 Preferred Securities
might properly be paid.
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 Preferred Securities Guarantee.
9. MISCELLANEOUS.
9.1 SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Preferred 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 Preferred Securities then outstanding.
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 the Holders will be
required), this Preferred
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Securities Guarantee may only be amended with the prior
approval of the Holders of at least a Majority in liquidation
amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages
are determined) of all the outstanding Preferred Securities.
The provisions of Section 6 of the Trust Agreement with
respect to meetings of Holders of the Preferred Securities
shall apply to the giving of such approval.
9.3 NOTICES. All notices provided for in this
Preferred 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 Preferred Guarantee Trustee,
at the Preferred Guarantee Trustee's mailing address
set forth below (or such other address as the
Preferred Guarantee Trustee may give notice of to the
Holders of the Preferred Securities):
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: 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 Preferred Securities):
National City Bancshares, Inc.
000 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Chief Executive Officer
(c) If given to any Holder of Preferred
Securities, at the address set forth on the books and
records of NCBE 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.
9.4 BENEFIT. This Preferred Securities
Guarantee is solely for the benefit of the Holders of the
Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
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9.5 GOVERNING LAW. This Preferred Securities
Guarantee shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Indiana (without
regard for conflicts of laws principles).
In Witness Whereof, the parties have entered into this
Agreement as of the date first written above.
National City Bancshares, Inc.,
as Guarantor
By:_______________________________________
Title:______________________________________
Wilmington Trust Company,
not in its individual capacity,
but solely as Preferred Guarantee
Trustee
By:_______________________________________
Title:______________________________________
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