EXHIBIT 4.3
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
UNITED BANCORPORATION OF ALABAMA, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
EFFECTIVE AS OF JUNE 27, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION.............................................................1
Section 1.1 Definitions and Interpretation....................................................1
ARTICLE II TRUST INDENTURE ACT........................................................................5
Section 2.1 Indenture Act; Application........................................................5
Section 2.2 Lists of Holders of Securities....................................................5
Section 2.3 Reports by the Trust Preferred Guarantee Trustee..................................5
Section 2.4 Reports to Trust Preferred Guarantee Trustee......................................6
Section 2.5 Evidence of Compliance with Conditions Precedent..................................6
Section 2.6 Event of Default; Waiver..........................................................6
Section 2.7 Event of Default; Notice..........................................................6
Section 2.8 Conflicting Interests.............................................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE.............................7
Section 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee........................7
Section 3.2 Certain Rights of Trust Preferred Guarantee Trustee...............................9
Section 3.3 Not Responsible for Recitals or Issuance of Guarantee............................11
ARTICLE IV TRUST PREFERRED GUARANTEE TRUSTEE.........................................................11
Section 4.1 Trust Preferred Guarantee Trustee; Eligibility...................................11
Section 4.2 Appointment, Removal and Resignation of Trust Preferred Guarantee Trustees.......12
ARTICLE V GUARANTEE.................................................................................13
Section 5.1 Guarantee........................................................................13
Section 5.2 Waiver of Notice and Demand......................................................13
Section 5.3 Obligations not Affected.........................................................13
Section 5.4 Rights of Holders................................................................14
Section 5.5 Guarantee of Payment.............................................................14
Section 5.6 Subrogation......................................................................14
Section 5.7 Independent Obligations..........................................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.................................................15
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.1 Limitation of Transactions.......................................................15
Section 6.2 Ranking..........................................................................16
ARTICLE VII TERMINATION...............................................................................16
Section 7.1 Termination......................................................................16
ARTICLE VIII INDEMNIFICATION...........................................................................16
Section 8.1 Exculpation......................................................................16
Section 8.2 Indemnification..................................................................17
ARTICLE IX MISCELLANEOUS.............................................................................17
Section 9.1 Successors and Assigns...........................................................17
Section 9.2 Amendments.......................................................................17
Section 9.3 Notices..........................................................................18
Section 9.4 Benefit..........................................................................18
Section 9.5 Governing Law....................................................................19
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Trust
Preferred Securities Guarantee"), effective as of June 27, 2002, is executed and
delivered by United Bancorporation of Alabama, Inc., a
Delaware corporation (the
"Guarantor"), and Xxxxx Fargo Bank, National Association, as trustee (the "Trust
Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Trust Preferred Securities (as defined herein)
of United Bancorp Capital Trust I, a
Delaware statutory business trust (the
"Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), effective as of June 27, 2002, among the trustees of the
Trust named therein, the Guarantor, as depositor, and the holders from time to
time of undivided beneficial interests in the assets of the Trust, the Trust is
issuing on the date hereof up to Four Thousand (4,000) preferred securities,
having an aggregate liquidation amount of Four Million Dollars ($4,000,000), and
such preferred securities being designated the Floating Rate Cumulative Trust
Preferred Securities (the "Trust Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Preferred Securities Guarantee, to pay to the
Holders of the Trust 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 by each Holder of
Trust Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Trust Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION.
In this Trust Preferred Securities Guarantee, unless the
context otherwise requires:
(a) capitalized terms used herein but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) terms defined in the Trust Agreement as of the date of
execution of this Trust Preferred Securities Guarantee have the same
meaning when used in this Trust Preferred Securities Guarantee, unless
otherwise defined in this Trust Preferred Securities Guarantee;
(c) a term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Trust Preferred Securities
Guarantee" or "this Trust Preferred Securities Guarantee" are to this
Trust Preferred Securities Guarantee as modified, supplemented or
amended from time to time;
(e) all references in this Trust Preferred Securities
Guarantee to Articles and Sections are to Articles and Sections of this
Trust Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act (as defined
below) has the same meaning when used in this Trust Preferred
Securities Guarantee, unless otherwise defined in this Trust Preferred
Securities Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday, Sunday, a day on
which federal or state banking institutions in Atmore, Alabama, Wilmington,
Delaware or Minneapolis, Minnesota are authorized or required by law, executive
order or regulation to close or a day on which the Corporate Trust Office of the
Trust Preferred Guarantee Trustee is closed for business.
"Corporate Trust Office" means the office of the Trust Preferred
Guarantee Trustee at which the corporate trust business of the Trust Preferred
Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at 000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Debentures" means the Floating Rate Junior Subordinated Deferrable
Interest Debentures due June 30, 2032, of the Debenture Issuer held by the
Property Trustee (as defined in the Trust Agreement) on behalf of the Trust.
"Debenture Issuer" means United Bancorporation of Alabama, Inc., issuer
of the Debentures under the Indenture.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Trust Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) that are required to be paid
on such Trust Preferred Securities, to the extent the Trust shall have funds
legally available therefor, (ii) the redemption price, including all accumulated
and unpaid
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Distributions to the date of redemption (the "Redemption Price"), to the extent
the Trust has funds legally available therefor, with respect to any Trust
Preferred Securities called for redemption by the Trust, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Debentures to the Holders in
exchange for Trust Preferred Securities as provided in the Trust Agreement), the
lesser of (a) the aggregate of the liquidation amount and all accumulated and
unpaid Distributions on the Trust Preferred Securities to the date of payment,
to the extent the Trust shall have funds legally available therefor, and (b) the
amount of assets of the Trust remaining legally available for distribution to
Holders in liquidation of the Trust (the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Trust, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or the Trust Preferred Guarantee Trustee;
provided, further, that the Trust Preferred Guarantee Trustee shall be protected
in acting on any such request, notice, consent or waiver unless a Responsible
Officer of the Trust Preferred Guarantee Trustee shall have actual knowledge
that the holder of such Trust Preferred Securities is the Guarantor.
"Indemnified Person" means the Trust Preferred Guarantee Trustee, any
Affiliate of the Trust Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Trust Preferred Guarantee Trustee.
"Indenture" means the Indenture effective as of June 27, 2002, among
the Debenture Issuer and Xxxxx Fargo Bank, National Association, as trustee, and
any indenture supplemental thereto pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Property Trustee on
behalf of the Trust.
"Liquidation Amount" means the stated value of $1,000 per Trust
Preferred Security.
"Liquidation Distribution" has the meaning provided therefor in the
definition of Guarantee Payments.
"List of Holders" has the meaning provided therefor in Section 2.2(a)
hereof.
"Majority in Liquidation Amount of the Trust Preferred Securities"
means the Holders of more than 50% of the Liquidation Amount of the Outstanding
(as defined in the Trust Agreement) Trust Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person, at least one of
whom shall be the principal executive officer, principal financial officer,
principal accounting officer, treasurer or any vice president of such Person.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Preferred Securities Guarantee shall
include:
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(h) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition
relating thereto;
(i) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(j) 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
(k) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Redemption Price" has the meaning provided therefor in the definition
of Guarantee Payments.
"Responsible Officer" means, with respect to the Trust Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the Trust
Preferred Guarantee Trustee with direct responsibility for the administration of
this Trust Preferred Securities Guarantee, including any vice-president, any
assistant vice-president, any assistant secretary or other officer or assistant
officer of the Trust Preferred Guarantee Trustee customarily performing
functions similar to those performed by any of the Persons who at the time shall
be such officers, or to whom a corporate trust matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the meanings
provided for each in the Trust Agreement.
"Successor Trust Preferred Guarantee Trustee" means a successor Trust
Preferred Guarantee Trustee possessing the qualifications to act as Trust
Preferred Guarantee Trustee under Section 4.1 hereof.
"Trust Agreement" has the meaning provided therefor in the Recitals
hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any
successor statute thereto, in each case as amended from time to time.
"Trust Preferred Guarantee Trustee" means Xxxxx Fargo Bank, National
Association, in its capacity as trustee under this Trust Preferred Securities
Guarantee until a Successor Trust Preferred Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Trust Preferred
Securities Guarantee and thereafter means each such Successor Trust Preferred
Guarantee Trustee.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 INDENTURE ACT; APPLICATION.
(a) Unless and until the Indenture is required to be qualified
under the Trust Indenture Act so that the provisions thereof are
applicable (i) the provisions of the Trust Indenture Act do not apply
to this Trust Preferred Securities Guarantee and are not given effect;
and (ii) notwithstanding any other provision set forth herein, the
Trust Preferred Guarantee Trustee shall not be liable for its own
simple negligence, but shall only be liable for its own gross
negligence.
(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust Indenture
Act, and the Indenture is then required to be qualified under the Trust
Indenture Act so that the provisions thereof are applicable, such
imposed duties shall control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) In the event the Trust Preferred Guarantee Trustee is not
also the Securities Registrar, the Guarantor shall provide the Trust
Preferred Guarantee Trustee with a list, in such form as the Trust
Preferred Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of the date (i) within
five (5) Business Days after March 15, June 15, September 15 and
December 15, and (ii) at any other time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a date
no more than 15 days before such List of Holders is given to the Trust
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 Trust Preferred Guarantee Trustee by the Guarantor. The Trust
Preferred Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) If applicable, the Trust Preferred Guarantee Trustee shall
comply with its obligations under Sections 311(a), 311(b) and Section
312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE TRUST PREFERRED GUARANTEE TRUSTEE.
(a) On or before July 15 in each year in which any of the
Trust Preferred Securities are Outstanding, the Trust Preferred
Guarantee Trustee shall transmit by mail, first class postage prepaid,
to the Holders, as their names and addresses appear upon the Securities
Register, a brief report dated as of the preceding May 15, if and to
the extent required under Section 313(a) of the Trust Indenture Act, if
applicable (it being understood that no such report shall be required
if none of the events set forth in Section 313(a) of the Trust
Indenture Act has occurred during the period to which such report would
relate).
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(b) The Trust Preferred Guarantee shall comply with Sections
313(b) and 313(c) of the Trust Indenture Act, if applicable.
(c) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trust Preferred Guarantee
Trustee with the Guarantor, with each stock exchange or applicable
self-regulatory organization upon which any Trust Preferred Securities
are listed (if so listed) and also with the Securities and Exchange
Commission. The Guarantor agrees to notify the Trust Preferred
Guarantee Trustee when any Trust Preferred Securities become listed on
any stock exchange or other applicable self-regulatory organization.
SECTION 2.4 REPORTS TO TRUST PREFERRED GUARANTEE TRUSTEE.
If applicable, the Guarantor shall provide to the Trust 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.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
If applicable, the Guarantor shall provide to the Trust Preferred
Guarantee Trustee such evidence of compliance with any conditions precedent
provided for in this Trust 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) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 EVENT OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust 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
Trust 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.
SECTION 2.7 EVENT OF DEFAULT; NOTICE.
The Trust Preferred Guarantee Trustee shall, within ninety (90) days
after the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Trust Preferred Securities, notices of
all Events of Default actually known to a Responsible Officer of the Trust
Preferred Guarantee Trustee, unless such defaults have been cured before the
giving of such notice; provided, that, except in the case of a default by
Guarantor on any of its payment obligations, the Trust Preferred 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 the
directors and/or Responsible Officers of the Trust Preferred Guarantee Trustee
in good faith determines that the withholding of such notice is in the interests
of the Holders of the Trust Preferred Securities.
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The Trust Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Trust Preferred Guarantee Trustee
shall have received written notice of such Event of Default, or a Responsible
Officer of the Trust Preferred Guarantee Trustee charged with the administration
of the Trust Agreement shall have obtained actual knowledge of such Event of
Default.
SECTION 2.8 CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described in
this Trust Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act, if
applicable.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE TRUST PREFERRED GUARANTEE TRUSTEE.
(a) This Trust Preferred Securities Guarantee shall be held by
the Trust Preferred Guarantee Trustee for the benefit of the Holders of
the Trust Preferred Securities, and the Trust Preferred Guarantee
Trustee shall not transfer this Trust Preferred Securities Guarantee to
any Person except a Holder of Trust Preferred Securities exercising his
or her rights pursuant to Section 5.4(b) hereof or to a Successor Trust
Preferred Guarantee Trustee on acceptance by such Successor Trust
Preferred Guarantee Trustee of its appointment to act as Successor
Trust Preferred Guarantee Trustee. The right, title and interest of the
Trust Preferred Guarantee Trustee shall automatically vest in any
Successor Trust 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 Trust Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee has occurred and is
continuing, the Trust Preferred Guarantee Trustee shall enforce this
Trust Preferred Securities Guarantee for the benefit of the Holders of
the Trust Preferred Securities.
(c) The Trust 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 Trust Preferred Securities
Guarantee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6 hereof) and is actually known
to a Responsible Officer of the Trust Preferred Guarantee Trustee, the
Trust Preferred Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Trust 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. No implied covenants shall be read
into the Trust Preferred Securities Guarantee against the Trust
Preferred Guarantee Trustee.
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(d) No provision of this Trust Preferred Securities Guarantee
shall be construed to relieve the Trust Preferred Guarantee Trustee
from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Trust
Preferred Guarantee Trustee shall be
determined solely by the express provisions
of this Trust Preferred Securities
Guarantee, and the Trust Preferred Guarantee
Trustee shall not be liable except for the
performance of such duties and obligations
as are specifically set forth in this Trust
Preferred Securities Guarantee, and no
implied covenants or obligations shall be
read into this Trust Preferred Securities
Guarantee against the Trust Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Trust Preferred Guarantee Trustee, the
Trust 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
Trust Preferred Guarantee Trustee and
conforming to the requirements of this Trust
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
Trust Preferred Guarantee Trustee, the Trust
Preferred Guarantee Trustee shall be under a
duty to examine the same to determine in
good faith whether or not they conform to
the requirements of this Trust Preferred
Securities Guarantee;
(ii) the Trust Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith
by a Responsible Officer of the Trust Preferred
Guarantee Trustee, unless it shall be proved that the
Trust Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Trust 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 Trust Preferred
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trust Preferred Guarantee Trustee, or exercising
any trust or power conferred upon the Trust Preferred
Guarantee Trustee under this Trust Preferred
Securities Guarantee; and
(iv) no provision of this Trust Preferred Securities
Guarantee shall require the Trust Preferred Guarantee
Trustee to expend or risk its own funds or
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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 Trust
Preferred 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 Trust Preferred Securities
Guarantee or indemnity, reasonably satisfactory to
the Trust Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1(d) hereof:
(i) The Trust 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 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 Trust Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Trust
Preferred Securities Guarantee, the Trust Preferred
Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking,
suffering or omitting any action hereunder, the Trust
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.
(iv) The Trust Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration
of any instrument (or any rerecording, refiling or
reregistration thereof).
(v) The Trust 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 Trust Preferred
Guarantee Trustee shall have the right at any time to
seek instructions concerning the administration of
this Trust Preferred Securities Guarantee from any
court of competent jurisdiction.
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(vi) The Trust Preferred Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers
vested in it by this Trust Preferred Securities
Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Trust
Preferred Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Trust
Preferred Guarantee Trustee, against the costs,
expenses (including reasonable attorneys' fees and
expenses and the expenses of the Trust 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
Trust Preferred Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Trust Preferred Guarantee
Trustee, upon the occurrence and during the
continuance of an Event of Default, of which the
Trust Preferred Guarantee has actual knowledge, of
its obligation to exercise the rights and powers
vested in it by this Trust Preferred Securities
Guarantee.
(vii) The Trust 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,
request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper
or document, but the Trust Preferred Guarantee
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters
as it may see fit.
(viii) The Trust 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
Trust 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.
(ix) Any action taken by the Trust Preferred Guarantee
Trustee or its agents hereunder shall bind the
Holders of the Trust Preferred Securities, and the
signature of the Trust 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 Trust
Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of
this Trust Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the Trust
Preferred Guarantee Trustee's or its agent's taking
such action.
(x) Whenever in the administration of this Trust
Preferred Securities Guarantee the Trust 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 Trust
Preferred Guarantee Trustee (i) may request
instructions from the Holders of a Majority in
Liquidation
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Amount of the Trust 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 good faith in
accordance with such instructions.
(b) No provision of this Trust Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Trust 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 Trust
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 Trust Preferred Guarantee Trustee shall
be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Trust Preferred Guarantee Trustee does not
assume any responsibility for their correctness. The Trust Preferred Guarantee
Trustee makes no representation as to the validity or sufficiency of this Trust
Preferred Securities Guarantee.
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 TRUST PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Trust Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be an entity 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 Person permitted by the Securities and Exchange
Commission to act as a resident trustee under the
Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and
subject to supervision or examination by applicable
federal, state, territorial or District of Columbia
authority. If such Person publishes reports of
condition at least annually, pursuant to law or to
the requirements of its supervising or examining
authority referred to above, then, for the purposes
of this Section 4.1(a)(ii), the combined capital and
surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
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(b) If at any time the Trust Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Trust
Preferred Guarantee Trustee shall immediately resign in the manner and
with the effect set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act and the provisions of the Trust Indenture
Act are then applicable, the Trust Preferred 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 TRUST PREFERRED
GUARANTEE TRUSTEES.
(a) Subject to Section 4.2(b), the Trust Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor.
(b) The Trust Preferred Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Trust Preferred
Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Trust Preferred
Guarantee Trustee and delivered to the Guarantor and the Trust
Preferred Guarantee Trustee.
(c) The Trust Preferred Guarantee Trustee appointed to office
shall hold office until a Successor Trust Preferred Guarantee Trustee
shall have been appointed or until its removal or resignation. The
Trust Preferred Guarantee Trustee may at any time resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Trust Preferred Guarantee Trustee and delivered
to the Guarantor, which resignation shall not take effect until a
Successor Trust Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such
Successor Trust Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Trust Preferred Guarantee Trustee.
(d) If no Successor Trust 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 Trust Preferred Guarantee
Trustee may petition any court of competent jurisdiction for
appointment of a Successor Trust Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Trust Preferred Guarantee Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Trust Preferred Guarantee
Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee or removal or resignation of the Trust Preferred Guarantee
Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Trust Preferred Guarantee Trustee all documented fees and expenses
accrued to the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), as and when due, regardless of any defense, right of set-off
or counterclaim that the Trust may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Trust
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 the Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Trust 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 the Trust of any express or implied
agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Trust
Preferred Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Trust Preferred Securities (other than an extension of time for payment
of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment
period on the Debentures 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 Trust Preferred Securities, or any action on the part of
the Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors,
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reorganization, arrangement, composition or readjustment of debt of, or
other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) any failure or omission to receive any regulatory approval
or consent required in connection with the Trust Preferred Securities
(or the common equity securities issued by the Trust), including the
failure to receive any approval of the Board of Governors of the
Federal Reserve System required for the redemption of the Trust
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, it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) Subject to Section 5.4(b), the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities have the right to
direct the time, method and place of conducting of any proceeding for
any remedy available to the Trust Preferred Guarantee Trustee in
respect of this Trust Preferred Securities Guarantee or exercising any
trust or power conferred upon the Trust Preferred Guarantee Trustee
under this Trust Preferred Securities Guarantee.
(b) Any Holder of Trust Preferred Securities may institute and
prosecute a legal proceeding directly against the Guarantor to enforce
its rights under this Trust Preferred Securities Guarantee, without
first instituting and prosecuting a legal proceeding against the Trust,
the Trust Preferred Guarantee Trustee or any other Person.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Trust Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Trust in respect of any amounts paid to such Holders by the
Guarantor under this Trust 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
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as a result of payment under this Trust Preferred Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid under this Trust
Preferred Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Trust 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 Trust
Preferred Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any of the Trust Preferred Securities remain outstanding, if
there shall have occurred an Event of Default under this Trust Preferred
Securities Guarantee, an event of default under the Indenture, an event of
default under the Trust Agreement or during an Extended Interest Payment Period
(as defined in the Indenture), then
(a) the Guarantor shall not, and will not permit any
Subsidiary to, declare or pay any dividends on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than (1)
dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, common stock of the Guarantor
or such Subsidiary, (2) any declaration of a dividend in connection
with the implementation of a shareholder's rights plan, or the issuance
of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (3) purchases of common
stock of the Guarantor related to the issuance of such common stock
under any of the Guarantor's employee benefit plans for its directors,
officers or employees, (4) as a result of a reclassification of any
class or series of the Guarantor's capital stock solely into another
class or series of the Guarantor's capital stock, or (5) declarations
or payments of dividends or distributions payable by a Subsidiary of
the Guarantor to the Guarantor or any of its Subsidiaries);
(b) the Guarantor shall not, and will not permit any
Subsidiary to, make any payment of interest, principal or premium, if
any, or repay, repurchase or redeem any debt securities issued by the
Guarantor which rank pari passu with or junior to the Debentures;
(c) the Guarantor shall not make any guarantee payments with
respect to any guarantee by the Guarantor of the debt securities of any
Subsidiary of the Guarantor if such guarantee ranks pari passu with or
junior in interest to the Debentures; provided,
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however, that the Guarantor may make payments pursuant to its
obligations under the Trust Preferred Securities Guarantee; and
(d) the Guarantor shall not redeem, purchase or acquire less
than all of the Outstanding (as defined in the Indenture) Debentures or
any of the Trust Preferred Securities.
SECTION 6.2 RANKING.
This Trust Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right of
payment to all Senior Debt, Subordinated Debt and Additional Senior Obligations,
each as defined in the Indenture, of the Guarantor, to the extent and in the
manner set forth in the Indenture, and the applicable provisions of the
Indenture will apply, in all relevant respects, to the obligations of the
Guarantor hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION.
This Trust Preferred Securities Guarantee shall terminate (a) upon full
payment of the Redemption Price of all Trust Preferred Securities, (b) upon full
payment of the amounts payable in accordance with the Trust Agreement upon
dissolution and liquidation of the Trust, or (c) upon distribution of the
Debentures to the Holders of the Trust Preferred Securities. Notwithstanding the
foregoing, this Trust Preferred Securities Guarantee shall continue to be
effective or shall be reinstated, as the case may be, if at any time any Holder
of Trust Preferred Securities must restore payment of any sums paid under the
Trust Preferred Securities or under this Trust Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered
Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
in accordance with this Trust 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
Trust 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.
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(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
or the Indemnified Person by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional
or expert competence and who the Indemnified Person reasonably believes
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 Trust Preferred Securities might
properly be paid.
SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or willful misconduct on its part, arising out of or
in connection with this Trust Preferred Securities Guarantee and 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, except as may
be otherwise prohibited by applicable law or regulation. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Trust Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Trust 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 Trust Preferred Securities then outstanding.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Trust Preferred Securities Guarantee may only be amended by the
Guarantor with the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Trust Preferred Securities. The provisions of Article
VI of the Trust Agreement with respect to meetings of Holders apply to the
giving of such approval. Prior to the execution of any amendment to this Trust
Preferred Securities Guarantee, the Trust Preferred Guarantee Trustee shall be
entitled to receive and conclusively rely on an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Trust
Preferred Securities Guarantee and that all conditions precedent to such
execution and delivery have been satisfied. The Trust Preferred Guarantee
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trust Preferred Guarantee Trustee's rights, duties or immunities
under this Trust Preferred Securities Guarantee,
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provided, however, that no such amendment shall be effective without the consent
of the Trust Preferred Guarantee Trustee.
SECTION 9.3 NOTICES.
All notices provided for in this Trust 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 Trust Preferred Guarantee Trustee, at the
Trust Preferred Guarantee Trustee's mailing address set forth below (or
such other address as the Trust Preferred Guarantee Trustee may give
notice of to the Holders of the Trust Preferred Securities and the
Guarantor):
Xxxxx Fargo Bank, National Association
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders of the Trust Preferred Securities and the
Trust Preferred Guarantee Trustee):
United Bancorporation of Alabama, Inc.
P. O. Box 8
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
(c) If given to any Holder of Trust Preferred Securities, at
the address set forth on the books and records of the Trust. All such
notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to
deliver.
SECTION 9.4 BENEFIT.
This Trust Preferred Securities Guarantee is solely for the benefit of
the Holders of the Trust Preferred Securities and the Trust Preferred Guarantee
Trustee and, subject to Section 3.1(a) and Section 4.2 hereof, as applicable is
not separately transferable from the Trust Preferred Securities.
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SECTION 9.5 GOVERNING LAW.
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE
WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. ANY ACTION OR PROCEEDING ARISING
OUT OF THIS GUARANTEE, AS SUPPLEMENTED OR AMENDED, IN ANY WAY SHALL BE BROUGHT
AND ENFORCED EXCLUSIVELY IN THE APPLICABLE UNITED STATES DISTRICT COURT FOR THE
STATE OF
DELAWARE, OR IN THE EVENT SUCH COURT LACKS JURISDICTION, IN THE
APPLICABLE
DELAWARE STATE DISTRICT COURT.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Trust Preferred Securities Guarantee is dated
as set forth below and effective as of June 27, 2002.
United Bancorporation of Alabama, Inc.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
Date: 6/18/02
Xxxxx Fargo Bank, National Association, as
Trust Preferred Guarantee Trustee
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Vice President
Date: 6/27/02
------------------------------
[Signature Page to
Trust Preferred Securities Guarantee Agreement]
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