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GUARANTEE AGREEMENT
Between
ALLEGIANT BANCORP, INC.
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Guarantee Trustee)
dated as of
________________, 1999
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ALLEGIANT CAPITAL TRUST I
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Guarantee Agreement
Act Section Section
--------------- -------------------
Section 310 (a)(1) 4.1(a)
(a)(2) 4.1(a)
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 2.8, 4.1(c)
Section 311 (a) Not Applicable
(b) Not Applicable
Section 312 (a) 2.2(a)
(b) 2.2(b)
(c) Not Applicable
Section 313 (a) 2.3
(a)(4) 2.3
(b) 2.3
(c) 2.3
(d) 2.3
Section 314 (a) 2.4
(b) 2.4
(c)(1) 2.5
(c)(2) 2.5
(c)(3) 2.5
(e) 1.1, 2.5, 3.2
Section 315 (a) 3.1(d)
(b) 2.7
(c) 3.1(c)
(d) 3.1(d)
(e) Not Applicable
Section 316 (a) 1.1, 2.6, 5.4
(a)(1)(A) 5.4
(a)(1)(B) 5.4
(a)(2) Not Applicable
(b) 5.3
(c) Not Applicable
Section 317 (a)(1) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
Section 318 (a) 2.1
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Guarantee Agreement.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
Section 1.1. Definitions 1
ARTICLE II TRUST INDENTURE ACT 5
Section 2.1. Trust Indenture Act; Application 5
Section 2.2. List of Holders 5
Section 2.3. Annual Reports by the Guarantee Trustee 5
Section 2.4. Periodic Reports to the Guarantee Trustee 5
Section 2.5. Evidence of Compliance with Conditions Precedent 6
Section 2.6. Events of Default; Waiver 6
Section 2.7. Event of Default; Notice 6
Section 2.9. Conflicting Interests 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE 6
Section 3.1. Powers and Duties of the Guarantee Trustee 6
Section 3.2. Certain Rights of Guarantee Trustee 8
Section 3.3. Indemnity 9
Section 3.4. Expenses 10
ARTICLE IV GUARANTEE TRUSTEE 10
Section 4.1. Guarantee Trustee; Eligibility 10
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee 10
ARTICLE V GUARANTEE 11
Section 5.1. Guarantee 11
Section 5.2. Waiver of Notice and Demand 11
Section 5.3. Obligations Not Affected 11
Section 5.4. Rights of Holders 12
Section 5.5. Guarantee of Payment 13
Section 5.6. Subrogation 13
Section 5.7. Independent Obligations 13
ARTICLE VI COVENANTS AND SUBORDINATION 13
Section 6.1. Subordination 13
Section 6.2. Pari Passu Guarantees 14
ARTICLE VII TERMINATION 14
Section 7.1. Termination 14
ARTICLE VIII MISCELLANEOUS 14
Section 8.1. Successors and Assigns 14
Section 8.2. Amendments 14
Section 8.3. Notices 14
Section 8.4. Benefit 16
Section 8.5. Interpretation 16
Section 8.6. Governing Law 16
Section 8.7. Counterparts 16
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GUARANTEE AGREEMENT
THIS GUARANTEE AGREEMENT, dated as of _____, 1999 (this "Guarantee
Agreement"), is executed and delivered by ALLEGIANT BANCORP, INC., a
Missouri corporation (the "Guarantor"), having its principal office at
0000 Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000 and BANKERS TRUST COMPANY, a
New York banking corporation, having its principal office at Four Albany
Street, Fourth Floor, New York, New York 10006, as trustee, for the
benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of Allegiant Capital Trust I, a
Delaware statutory business trust (the "Issuer Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of _____, 1999, among Allegiant Bancorp,
Inc., as Depositor, Bankers Trust Company, as Property Trustee (the
"Property Trustee"), Bankers Trust (Delaware), as Delaware Trustee (the
"Delaware Trustee") (collectively, the "Issuer Trustees"), and the
Holders from time to time of preferred undivided beneficial ownership
interests in the assets of the Issuer Trust, the Issuer Trust is issuing
up to $15,000,000 aggregate Liquidation Amount (as defined herein) of
its ____% Preferred Securities, Liquidation Amount $10 per preferred
security (the "Preferred Securities"), representing preferred undivided
beneficial ownership interests in the assets of the Issuer Trust and
having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer
Trust and the proceeds thereof, together with the proceeds from the
issuance of the Issuer Trust's Common Securities (as defined herein),
will be used to purchase the Junior Subordinated Debentures due ______,
2029 (as defined in the Trust Agreement) (the "Junior Subordinated
Debentures") of the Guarantor which will be deposited with Bankers Trust
Company, as Property Trustee under the Trust Agreement, as trust assets;
and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to
agree to the extent set forth herein, to pay to the Holders of the
Preferred Securities the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase of the Preferred
Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, and intending to be legally
bound hereby, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the
Preferred Securities.
ARTICLE I
DEFINITIONS
Section 1.1. Definitions
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following
meanings. Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Act" shall have the meaning specified in the Trust Agreement.
"Additional Amount" shall have the meaning specified in the Trust
Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control," when used with respect to any specified
Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Cause" means any one of the following reasons:
(a) the Guarantee Trustee is incapable of acting as
Guarantee Trustee;
(b) the Guarantee Trustee is adjudged a bankrupt or
insolvent, or a receiver of the Guarantee Trustee or of its
property is appointed; or
(c) any public officer takes charge or control of the
Guarantee Trustee or of its property or affairs for the purposes
of rehabilitation, conservation or liquidation.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer Trust.
"Delaware Trustee" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Distributions" means preferential cumulative cash distributions
accumulating from ______, 1999 and payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year, commencing
__________, 1999 at the annual rate of ____% of the Liquidation Amount.
"Event of Default" means (a) a default by the Guarantor in any of
its payment obligations under this Guarantee Agreement, or (b) a default
by the Guarantor in any other obligation hereunder that remains
unremedied for 30 days.
"Extended Interest Payment Period" shall have the meaning
specified in the Indenture.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the Issuer
Trust: (a) any accumulated and unpaid Distributions required to be paid
on the Preferred Securities, to the extent the Issuer Trust shall have
funds available therefor at such time; (b) the Redemption Price, with
respect to the Preferred Securities called for redemption by the Issuer
Trust to the extent that the Issuer Trust shall have funds available
therefor at such time; and (c) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer Trust, unless the
Junior Subordinated Debentures are distributed to the Holders, the
lesser of (in either case, the "Liquidation Distribution") (i) the
aggregate of
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the Liquidation Amount and all accumulated and unpaid Distributions to
the date of payment to the extent the Issuer Trust shall have funds
available to make such payment at such time and (ii) the amount of
assets of the Issuer Trust remaining available for distribution to
Holders in liquidation of the Issuer Trust.
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means
each such Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the preamble of
this Guarantee Agreement.
"Holder" means any holder, as registered on the books and records
of the Issuer Trust, of any Preferred Securities; provided, however,
that, in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor, the Guarantee
Trustee or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
_______, 1999, between Allegiant Bancorp, Inc. and Bankers Trust
Company, as trustee, as may be modified, amended or supplemented from
time to time.
"Issuer Trust" shall have the meaning specified in the preamble of
this Guarantee Agreement.
"Issuer Trustees" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Junior Subordinated Debentures" shall have the meaning specified
in the first recital of this Guarantee Agreement.
"Like Amount" means (a) with respect to a redemption of Preferred
Securities, Preferred Securities having a Liquidation Amount equal to
the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, the
proceeds of which will be used to pay the Redemption Price of such
Preferred Securities, (b) with respect to a distribution of Junior
Subordinated Debentures to Holders of Preferred Securities in connection
with a termination, winding up or liquidation of the Issuer Trust,
Junior Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of the Holder to whom
such Junior Subordinated Debentures are distributed, and (c) with
respect to any distribution of an Additional Amount to Holders of
Preferred Securities, Junior Subordinated Debentures having a principal
amount equal to the Liquidation Amount of the Preferred Securities in
respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $10 per Preferred
Security.
"Liquidation Distribution" shall have the meaning specified in the
definition of Guarantee Payments.
"Majority in Liquidation Amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, Preferred
Securities representing more than 50% of the aggregate Liquidation
Amount of all then outstanding Preferred Securities issued by the Issuer
Trust.
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"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, Chief Executive Officer,
President or a Vice President, and by the Chief Financial Officer,
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of such Person, and delivered to the Guarantee
Trustee. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in
rendering the Officers' Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Preferred Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"Property Trustee" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Redemption Date" means, with respect to any Preferred Security to
be redeemed, the date fixed for such redemption by or pursuant to the
Trust Agreement; provided that each Junior Subordinated Debenture
Redemption Date (as such term is defined in the Indenture) and the
stated maturity of the Junior Subordinated Debentures shall be a
Redemption Date for a Like Amount of Preferred Securities.
"Redemption Price" shall have the meaning specified in the Trust
Agreement.
"Responsible Officer" means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust Office of
the Guarantee Trustee, including any managing director, principal, vice
president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Guarantee Trustee customarily
performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the
administration of this Guarantee Agreement, and also, with respect to a
particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the
particular subject.
"Senior Indebtedness" shall have the meaning specified in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
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"Trust Agreement" shall have the meaning specified in the Recitals
to this Guarantee Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, or any successor
statute, in each case as amended from time to time.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required to be a part of
and govern this Guarantee Agreement, the provision of the Trust
Indenture Act shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be
deemed to apply to this Guarantee Agreement as so modified or excluded,
as the case may be.
Section 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished
to the Guarantee Trustee:
(i) quarterly, not more than 15 days after March
15, June 15, September 15 and December 15 in each year, a
list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders as of
such date; and
(ii) at such other times as the Guarantee Trustee
may request in writing, within 30 days after the receipt by
the Guarantor of any such request, a list of similar form
and content as of a date not more than 15 days prior to the
time such list is furnished.
(b) The Guarantee Trustee shall comply with the
requirements of Section 312(b) of the Trust Indenture Act.
Section 2.3. Annual Reports by the Guarantee Trustee.
Within 60 days of January 31 of each year commencing January 31,
2000, the Guarantee Trustee shall provide to the Holders such reports,
if any, as are required by Section 313 of the Trust Indenture Act in the
form and in the manner provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee also shall comply with the requirements of
Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee and the
Holders such documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance certificate
required by Section 314 of the Trust Indenture Act, in the form, in the
manner and at the times required by Section 314 of the Trust Indenture
Act.
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Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in
this Guarantee Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote, on behalf of the Holders, waive any past Event
of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events of
Default known to the Guarantee Trustee, unless such Events of
Default have been cured before the giving of such notice; provided
that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the Board of Directors,
the executive committee or a trust committee of directors and/or
Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests
of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless (i) a Responsible Officer
charged with the administration of this Guarantee Agreement shall
have received written notice of such Event of Default, or (ii) a
Responsible Officer of the Guarantee Trustee charged with
administration of the Trust Agreement shall have obtained actual
knowledge thereof.
Section 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described
in this Guarantee Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee Agreement to
any Person except to a Holder exercising his or her rights
pursuant to Section 5.4(d) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment
to act as Successor Guarantee Trustee hereunder. The right, title
and interest of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon
acceptance
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by such Successor Guarantee Trustee of its appointment hereunder,
and such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee
Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall be obligated to perform only such
duties as are specifically set forth in this Guarantee Agreement
(including pursuant to Section 2.1), and no implied covenants
shall be read into this Guarantee Agreement against the Guarantee
Trustee. If an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6), the Guarantee Trustee
shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act or its own
bad faith or willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events
of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement
(including pursuant to Section 2.1), and the
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement
(including pursuant to Section 2.1); and
(B) in the absence of bad faith on the
part of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in
the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements of
this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be proved
that the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the
Holders of not less than a Majority in Liquidation Amount of
the Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the
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Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of
any of its rights or powers if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not assured to it under the terms
of this Guarantee Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely
and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed
by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor;
(iv) the Guarantee Trustee may consult with legal
counsel, and the written advice or opinion of such legal
counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice
or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent
jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested
in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such security and
indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee;
provided, however, that nothing herein shall relieve the
Guarantee Trustee of its obligations upon the occurrence of
an Event of Default that has not been cured or waived
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to exercise the rights and powers vested in the Guarantee
Trustee by this Guarantee, and to use the same degree of
care and skill in exercising such rights and powers as a
reasonably prudent person would use under the circumstances
in the conduct of his own affairs;
(vi) the Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(vii) the Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys,
and the Guarantee Trustee shall not be responsible for any
negligence or willful misconduct on the part of any such
agent or attorney appointed with due care by it hereunder.
Nothing herein shall be construed as limiting or restricting
the right of the Guarantor to bring any action directly
against any agent or attorney appointed by the Guarantee
Trustee for any negligence or willful misconduct on the part
of such agent or attorney; and
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder,
the Guarantee Trustee:
(A) may request instructions from the
Holders;
(B) may refrain from enforcing such remedy
or right or taking such other action until such
instructions are received; and
(C) shall be fully protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which
it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority available to
the Guarantee Trustee shall be construed to be a duty to act in
accordance with such power and authority.
Section 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee (which for
purposes of this Section 3.3 shall include its directors, officers,
employees and agents) for, and to hold the Guarantee Trustee harmless
against, any loss, liability or expense incurred without negligence,
willful misconduct or bad faith on the part of the Guarantee Trustee,
arising out of or in connection with the acceptance or administration of
this Guarantee Agreement, including the reasonable costs and expenses of
defending
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against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee
Trustee will not claim or exact any lien or charge on any Guarantee
Payments as a result of any amount due to it under this Guarantee
Agreement.
Section 3.4. Expenses.
The Guarantor shall from time to time reimburse the Guarantee
Trustee for its reasonable expenses and costs (including reasonable
attorneys' or agents' fees) incurred in connection with the performance
of its duties hereunder.
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of
the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to the
extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set out
in Section 4.2(b).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.
(a) No resignation or removal of the Guarantee Trustee
and no appointment of a Successor Guarantee Trustee pursuant to
this Article IV shall become effective until the acceptance of
appointment by the Successor Guarantee Trustee by written
instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to Section 4.2(a), a Guarantee Trustee may
resign at any time by giving written notice thereof to the
Holders. The Guarantee Trustee shall appoint a successor by
requesting from at least three Persons meeting the eligibility
requirements such Person's expenses and charges to serve as the
Guarantee Trustee, and selecting the Person who agrees to the
lowest expenses and charges. If the instrument of acceptance by
the Successor Guarantee
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Trustee shall not have been delivered to the Guarantee Trustee
within 60 days after the giving of such notice of resignation,
the Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for the appointment of a
Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for Cause at
any time by Act of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, delivered to the
Guarantee Trustee.
(d) If a resigning Guarantee Trustee shall fail to
appoint a successor, or if a Guarantee Trustee shall be removed
or become incapable of acting as Guarantee Trustee, or if any
vacancy shall occur in the office of any Guarantee Trustee for any
cause, the Holders of the Preferred Securities, by Act of the
Holders of record of not less than 25% in aggregate Liquidation
Amount of the Preferred Securities then outstanding delivered to
such Guarantee Trustee, shall promptly appoint a successor
Guarantee Trustee. If no Successor Guarantee Trustee shall have
been so appointed by the Holders of the Preferred Securities and
such appointment accepted by the Successor Guarantee Trustee, any
Holder, on behalf of himself and all others similarly situated,
may petition any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full on a subordinated basis as set forth in Section 6.1 hereof to the
Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the
Issuer Trust may have or assert, except the defense of payment. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer Trust to pay such amounts to the Holders. The
Guarantor shall give prompt written notice to the Guarantee Trustee in
the event it makes any direct payment hereunder.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Guarantee Trustee, the Issuer Trust or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and
demands.
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Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer Trust of
any express or implied agreement, covenant, term or condition
relating to the Preferred Securities to be performed or observed
by the Issuer Trust;
(b) the extension of time for the payment by the Issuer
Trust of all or any portion of the Distributions (other than an
extension of time for payment of Distributions that results from
the extension of any interest payment period on the Junior
Subordinated Debentures as so provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Issuer Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer Trust or
any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) any failure or omission to receive any regulatory
approval or consent required in connection with the Preferred
Securities (or the common equity securities issued by the Issuer
Trust), including, without limitation, the failure to receive any
approval of the Board of Governors of the Federal Reserve System
required for the redemption of the Preferred 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 (other than payment of the underlying obligation), it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any
and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of
any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that:
(a) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders;
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(b) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders;
(c) the Holders of a Majority in Liquidation Amount of
the Preferred Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(d) any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against
the Guarantee Trustee, the Issuer Trust or any other Person.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by the Issuer Trust) or upon the distribution
of Junior Subordinated Debentures to Holders as provided in the Trust
Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the
Holders against the Issuer Trust in respect of any amounts paid to the
Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment
under this Guarantee Agreement, if at the time of any such payment, any
amounts are due and unpaid under this Guarantee Agreement. If any amount
shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to
pay over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the
Preferred Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the terms
of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3
hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of
payment to all Senior Indebtedness of the Guarantor to the extent and in
the manner set forth in the Indenture with respect to the Junior
Subordinated Debentures, and the provisions of Article XIII of the
Indenture will apply, mutatis mutandis, to the obligations of the
Guarantor hereunder. The obligations of the Guarantor hereunder do not
constitute Senior Indebtedness of the Guarantor.
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Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement
shall rank pari passu with any similar guarantee agreements issued by
the Guarantor on behalf of the holders of preferred or capital
securities issued by the Issuer Trust and with any other security,
guarantee or other obligation that is expressly stated to rank pari
passu with the obligations of the Guarantor under this Guarantee
Agreement.
ARTICLE VII
TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon (a) full payment of the Redemption Price of all
Preferred Securities, (b) the distribution of Junior Subordinated
Debentures to the Holders in exchange for all of the Preferred
Securities or (c) full payment of the amounts payable in accordance with
Article IX of the Trust Agreement upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to
be effective or will be reinstated, as the case may be, if at any time
any Holder is required to repay any sums paid with respect to the
Preferred Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor
that is permitted under Article VIII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations
hereunder, and any purported assignment that is not in accordance with
these provisions shall be void.
Section 8.2. Amendments.
Except with respect to any changes that do not materially
adversely affect the rights of the Holders (in which case no consent of
the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Securities. The
provisions of Article VI of the Trust Agreement concerning meetings of
the Holders shall apply to the giving of such approval.
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Section 8.3. Notices.
Any notice, request or other communication required or permitted
to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied (confirmed by delivery of
the original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or
telecopy number set forth below or such other address or telecopy
number or to the attention of such other Person as the Guarantor
may give notice to the Holders:
Allegiant Bancorp, Inc.
0000 Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: President
(b) if given to the Issuer Trust, in care of the
Guarantee Trustee, at the Issuer Trust's (and the Guarantee
Trustee's) address set forth below or such other address or
telecopy number or to the attention of such other Person as the
Guarantee Trustee on behalf of the Issuer Trust may give notice to
the Holders:
Allegiant Capital Trust I
c/o Allegiant Bancorp, Inc.
0000 Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: President
with a copy to:
Bankers Trust Company
Four Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust and Agency Group;
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on
the books and records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
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Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Preferred Securities.
Section 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement
has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural and
vice versa;
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter genders;
(h) the words "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation";
and
(i) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Guarantee Agreement as
a whole and not to any particular Article, Section or other
subdivision.
Section 8.6. Governing Law.
This Guarantee Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Delaware without
regard to the conflict of law principles thereof.
Section 8.7. Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
ALLEGIANT BANCORP, INC., as Guarantor
By:
-----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Guarantee and
in its individual capacity
By:
-----------------------------------------
Name:
Title:
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