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EXHIBIT 4.7
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GUARANTEE AGREEMENT
Between
SUCCESS BANCSHARES, INC.
and
BANKERS TRUST COMPANY
as Guarantee Trustee
dated as of
__________ __, 1998
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SUCCESS 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
Act Section Agreement Section
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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.
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TABLE OF CONTENTS
PAGE
GUARANTEE AGREEMENT......................................................................1
ARTICLE I DEFINITIONS...................................................................2
SECTION 1.1. Definitions.............................................................2
ARTICLE II TRUST INDENTURE ACT..........................................................4
SECTION 2.1. Trust Indenture Act; Application........................................4
SECTION 2.2. List of Holders.........................................................4
SECTION 2.3. 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........................5
SECTION 2.6. Events of Default; Waiver...............................................5
SECTION 2.7. Event of Default; Notice................................................5
SECTION 2.8. 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.....................................7
SECTION 3.3. Indemnity...............................................................9
SECTION 3.4. Expenses................................................................9
ARTICLE IV GUARANTEE TRUSTEE............................................................9
SECTION 4.1. Guarantee Trustee; Eligibility..........................................9
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...................................................12
SECTION 5.6. Subrogation............................................................12
SECTION 5.7. Independent Obligations................................................13
ARTICLE VI COVENANTS AND SUBORDINATION.................................................13
SECTION 6.1. Subordination..........................................................13
SECTION 6.2. Pari Passu Guarantees..................................................13
ARTICLE VII TERMINATION................................................................13
SECTION 7.1. Termination............................................................13
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................................................................15
SECTION 8.5. Interpretation.........................................................15
SECTION 8.6. Governing Law..........................................................16
SECTION 8.7. Counterparts...........................................................16
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________ __, 1998 is executed
and delivered by SUCCESS BANCSHARES, INC., an Illinois corporation ("SUCCESS
BANCSHARES"), having its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx
Xxxxxxxx 00000, and BANKERS TRUST COMPANY, a New York banking corporation, as
trustee (the "GUARANTEE TRUSTEE"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Success Capital Trust I, a Delaware statutory business trust ("SUCCESS
CAPITAL").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"TRUST AGREEMENT"), dated as of __________ __, 1998, among Success Bancshares,
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
Success Capital, Success Capital is issuing up to $17,250,000 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
Success Capital and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by Success Capital and
the proceeds thereof, together with the proceeds from the issuance of Success
Capital's Common Securities (as defined herein), will be used to purchase the
Junior Subordinated Debentures, (as defined in the Trust Agreement) of Success
Bancshares which will be deposited with Bankers Trust Company, as Property
Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
Success Bancshares desires irrevocably and unconditionally to agree, to the
extent set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of Preferred
Securities by each Holder, which purchase Success Bancshares hereby acknowledges
shall benefit Success Bancshares, and intending to be legally bound hereby,
Success Bancshares executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Preferred Securities.
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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.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of Success Capital.
"Event of Default" means (i) a default by Success Bancshares in any of
its payment obligations under this Guarantee Agreement, or (ii) a default by
Success Bancshares in any other obligation hereunder that remains unremedied for
30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of Success Capital: (i) any accrued and unpaid
Distributions required to be paid on the Preferred Securities, to the extent
Success Capital shall have funds on hand available therefor at such time, (ii)
the Redemption Price, with respect to the Preferred Securities called for
redemption by Success Capital to the extent that Success Capital shall have
funds on hand available therefor at such time, and (iii) upon a voluntary or
involuntary termination, winding-up or liquidation of Success Capital, unless
Junior Subordinated Debentures are distributed to the Holders, the lesser of (a)
the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment to the extent Success Capital shall have
funds on hand available to make such payment at such time and (b) the amount of
assets of Success Capital remaining available for distribution to Holders in
liquidation of Success Capital (in either case, the "LIQUIDATION DISTRIBUTION").
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
Success Capital, 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 Success Bancshares, the Guarantee Trustee, or any Affiliate of
Success Bancshares or the Guarantee Trustee.
"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
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Securities in connection with a dissolution and liquidation of Success Capital,
Junior Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of the Holder to whom such Junior
Subordinated Debentures are distributed, and (c) with respect to any
distribution of Additional Amounts to Holders of Preferred Securities, Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Preferred Securities in respect of which such distribution is
made.
"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 Success Capital.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, Chief Executive Officer, President,
Executive Vice 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 each such officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Preferred Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Redemption Date" means, with respect to any Preferred Security to be
redeemed, the date fixed for such redemption by or pursuant to the Trust
Agreement; provided that each Redemption Date (as such term is defined in the
Indenture) of the Junior Subordinated Debenture and the stated maturity of the
Junior Subordinated Debentures shall be a Redemption Date for a Like Amount of
Preferred Securities.
"Removal For Cause" means a removal of the Guarantee Trustee made for
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
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(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.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer assigned to the Corporate Trust Office, 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 the Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Senior and Subordinated Debt" shall have the meaning specified in the
Indenture.
"Success Bancshares" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"Success Capital" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" shall have the meaning specified in the first recital
of this Guarantee Agreement.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Guarantee Agreement, the provision of the Trust Indenture Act shall
control. If any provision of this Guarantee Agreement modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Guarantee Agreement as so
modified or excluded, as the case may be.
SECTION 2.2. List of Holders.
(a) Success Bancshares will furnish or cause to be furnished to the
Guarantee Trustee:
(i) quarterly, not more than 15 days after the 15th day
of March, June, September and December 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
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(ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by Success
Bancshares 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) Upon receipt of a new list of Holders, the Guarantee Trustee
may destroy any such list previously given to it by Success Bancshares.
(c) The Guarantee Trustee shall comply with the requirements of
Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Within 60 days of January 31 of each year, commencing January 31, 1999,
the Guarantee Trustee shall provide to the Holders such reports, if any, as are
required by Section 313 of the Trust Indenture Act in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
Success Bancshares shall provide to the Guarantee Trustee and the
Holders such documents, reports and information, if any, as required by Section
314 of the Trust Indenture Act and the compliance certificate required by
Section 314 of the Trust Indenture Act, in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
Success Bancshares 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 or waived 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
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such notice if and so long as the Board of Directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer charged with the administration of
this Guarantee Agreement shall have received written notice of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first provision
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be effective whether or
not conveying 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.
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(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions of this
Guarantee Agreement (including pursuant to Section 2.1), and the
Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Guarantee Agreement (including pursuant to Section 2.1); and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Guarantee Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that by
any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
(ii) The Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) The Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) No provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
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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 Success Bancshares 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 Success Bancshares.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or written opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to Success Bancshares 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 that
nothing in this Section shall relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee Agreement.
(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.
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(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.
Success Bancshares agrees to indemnify the Guarantee Trustee, its
directors, officers, employees and agents for, and to hold them harmless
against, any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on the part of the Guarantee Trustee, its directors,
officers, employees and agents, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, including the costs
and expenses of defending against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Guarantee
Trustee will not claim or exact any lien or charge on any Guarantee Payments as
a result of any amount due to it under this Guarantee Agreement.
SECTION 3.4. Expenses.
Success Bancshares 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 Success Bancshares; 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
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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 Success Bancshares shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the Successor Guarantee
Trustee by written instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee Trustee
may resign at any time by giving written notice thereof to the Holders. The
Guarantee Trustee shall appoint a successor by requesting from at least three
Persons meeting the eligibility requirements such Person's expenses and charges
to serve as the Guarantee Trustee, and selecting the Person who agrees to the
lowest expenses and charges. If the instrument of acceptance by the Successor
Guarantee Trustee shall not have been delivered to the Guarantee Trustee within
60 days after the giving of such notice of resignation, the Guarantee Trustee
may petition, at the expense of Success Bancshares, any court of competent
jurisdiction for the appointment of a Successor Guarantee Trustee.
(c) A Removal For Cause may be made 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.
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ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
Success Bancshares 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 Success Capital), as and when due, regardless of any defense, right of
set-off or counterclaim which Success Capital may have or assert, except the
defense of payment. Success Bancshares's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by Success Bancshares
to the Holders or by causing Success Capital to pay such amounts to the Holders.
Success Bancshares 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.
Success Bancshares 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, Success Capital or any other Person before proceeding against
Success Bancshares, 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 Success Bancshares
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 Success Capital of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by Success Capital;
(b) the extension of time for the payment by Success Capital 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 Success Capital 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,
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arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, Success Capital or any of the assets of Success Capital;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligation), it being the intent of this Section 5.3 that the
obligations of Success Bancshares 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, Success Bancshares with respect to the happening of any
of the foregoing.
SECTION 5.4. Rights of Holders.
Success Bancshares expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
Success Bancshares to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, Success
Capital or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment when due 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 Success Capital) or upon the distribution of Junior
Subordinated Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6. Subrogation.
Success Bancshares shall be subrogated to all rights (if any) of the
Holders against Success Capital in respect of any amounts paid to the Holders by
Success Bancshares under this Guarantee Agreement; provided, however, that
Success Bancshares 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 Success Bancshares in
violation of the preceding sentence, Success Bancshares agrees to hold such
amount in trust for the Holders and to pay over such amount to the Holders.
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SECTION 5.7. Independent Obligations.
Success Bancshares acknowledges that its obligations hereunder are
independent of the obligations of Success Capital with respect to the Preferred
Securities and that Success Bancshares shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to in
subsections(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured obligation of
Success Bancshares and will rank subordinate and junior in right of payment to
all Senior and Subordinated Debt of Success Bancshares 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 Success Bancshares hereunder. The
obligations of Success Bancshares hereunder do not constitute Senior and
Subordinated Debt of Success Bancshares.
SECTION 6.2. Pari Passu Guarantees.
The obligations of Success Bancshares under this Guarantee Agreement
shall rank pari passu with any similar guarantee agreements issued by Success
Bancshares on behalf of the holders of preferred or capital securities issued by
Success Capital and with any other security, guarantee or other obligation that
is expressly stated to rank pari passu with the obligations of Success
Bancshares under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) the distribution of Junior Subordinated Debentures to the
Holders in exchange for all of the Preferred Securities or (iii) full payment of
the amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of Success Capital. 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.
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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
Success Bancshares 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 Success Bancshares that is permitted
under Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform Success Bancshares's obligations hereunder, Success
Bancshares shall not assign its obligations hereunder, and any purported
assignment that is not in accordance with these provisions shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Preferred Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied (confirmed by delivery of the original) or
mailed by first class mail as follows:
(a) if given to Success Bancshares, 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 Success Bancshares may give notice to the Holders:
Success Bancshares, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (847) 6-2635
Attention: Xxxx X. Xxxxxx
(b) if given to Success Capital, in care of the Guarantee Trustee, at
Success Capital'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 Success Capital may give notice to the Holders:
Success Capital Trust I
c/o Success Bancshares, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
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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 Success Capital.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Securities.
SECTION 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
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(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF 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.
[signature page attached]
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IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the date first above written.
SUCCESS BANCSHARES, INC.
-----------------------------------
By: Xxxx X. Xxxxxx
Its: President and Chief Executive
Officer
BANKERS TRUST COMPANY,
NOT INDIVIDUALLY,
BUT SOLELY AS GUARANTEE TRUSTEE
-----------------------------------
By:
--------------------------------
Its:
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