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Exhibit 4.7
PREFERRED SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
SECOND BANCORP INCORPORATED
AND
WILMINGTON TRUST COMPANY
DATED AS OF _________, 2001
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TABLE OF CONTENTS
Page No.
ARTICLE I
DEFINITIONS AND INTERPRETATION..........................................................................5
Section 1.1 Definitions and Interpretation........................................................5
ARTICLE II
TRUST INDENTURE ACT.....................................................................................9
Section 2.1 Trust Indenture Act; Application......................................................9
Section 2.2 Lists of Holders of Securities........................................................9
Section 2.3 Reports by the Guarantee Trustee......................................................9
Section 2.4 Periodic Reports to Guarantee Trustee................................................10
Section 2.5 Evidence of Compliance with Conditions Precedent.....................................10
Section 2.6 Events of Default; Waiver............................................................10
Section 2.7 Event of Default; Notice.............................................................10
Section 2.8 Conflicting Interests................................................................11
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.........................................................11
Section 3.1 Powers and Duties of the Guarantee Trustee...........................................11
Section 3.2 Certain Rights of Guarantee Trustee..................................................13
Section 3.3 Not Responsible for Recitals or Issuance of Guarantee................................15
ARTICLE IV
GUARANTEE TRUSTEE......................................................................................15
Section 4.1 Guarantee Trustee; Eligibility.......................................................15
Section 4.2 Appointment, Removal and Resignation of Guarantee Trustee............................16
ARTICLE V
GUARANTEE..............................................................................................17
Section 5.1 Guarantee............................................................................17
Section 5.2 Waiver of Notice and Demand..........................................................17
Section 5.3 Obligations Not Affected.............................................................17
Section 5.4 Rights of Holders....................................................................18
Section 5.5 Guarantee of Payment.................................................................18
Section 5.6 Subrogation..........................................................................19
Section 5.7 Independent Obligations..............................................................19
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION..............................................................19
Section 6.1 Limitation of Transactions...........................................................19
Section 6.2 Ranking..............................................................................19
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ARTICLE VII
TERMINATION............................................................................................20
Section 7.1 Termination..........................................................................20
ARTICLE VIII
INDEMNIFICATION........................................................................................20
Section 8.1 Exculpation..........................................................................20
Section 8.2 Indemnification......................................................................20
ARTICLE IX
MISCELLANEOUS..........................................................................................21
Section 9.1 Successors and Assigns...............................................................21
Section 9.2 Amendments...........................................................................21
Section 9.3 Notices..............................................................................21
Section 9.4 Benefit..............................................................................22
Section 9.5 Governing Law........................................................................22
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CROSS REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
310(a)............................4.1(a)
310(b)............................4.1(c), 2.8
310(c)............................Not Applicable
311(a)............................2.2(b)
311(b)............................2.2(b)
311(c)............................Not Applicable
312(a)............................2.2(a)
312(b)............................2.2(b)
313...............................2.3
314(a)............................2.4
314(b)............................Not Applicable
314(c)............................2.5
314(d)............................Not Applicable
314(e)............................1.1, 2.5, 3.2
314(f)............................2.1, 3.2
315(a)............................3.1(d)
315(b)............................2.7
315(c)............................3.1
315(d)............................3.1(d)
316(a)............................1.1, 2.6, 5.4
316(b)............................5.3
317(a)............................3.1
317(b)............................Not Applicable
318(a)............................2.1(b)
318(b)............................2.1
318(c)............................2.1(b)
Note: This Cross-Reference Table does not constitute part of
this Agreement and shall not affect the interpretation of any
of its terms or provisions.
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Preferred
Securities Guarantee"), dated as of ___________, 2001, is executed and delivered
by SECOND BANCORP INCORPORATED, an Ohio corporation (the "Guarantor"), and
WILMINGTON TRUST COMPANY, a Delaware banking corporation organized under the
laws of the State of Delaware, 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 Second Bancorp Capital Trust I, a Delaware
statutory business trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of __________, 2001, among the trustees of the
Trust named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Trust, the Trust is
issuing on the date hereof up to 2,990,000 preferred securities, having an
aggregate Liquidation Amount of up to $29,900,000 designated the ____%
Cumulative Trust Preferred Securities;
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
I DEFINITIONS AND INTERPRETATION
1.1 Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this
Section 1.1;
(b) terms defined in the Trust Agreement as at the date
of execution of this Preferred Securities Guarantee
have the same meaning when used in this Preferred
Securities Guarantee, unless otherwise defined in
this Preferred Securities Guarantee;
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(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities Guarantee"
are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee
to Articles and Sections are to Articles and Sections
of this Preferred Securities Guarantee, unless
otherwise specified;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred Securities
Guarantee, unless otherwise defined in this Preferred
Securities Guarantee or unless the context otherwise
requires; and
(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 New York, New York or Warren,
Ohio are authorized or required by law, executive order or regulation to close
or a day on which the Corporate Trust Office of the Guarantee Trustee is closed
for business.
"Corporate Trust Office" means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the ____% Subordinated Debentures due December 31,
2031, of the Debenture Issuer held by the Property Trustee of the Trust.
"Debenture Issuer" means Second Bancorp Incorporated, 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 Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Trust: (i) any accrued and unpaid Distributions that are
required to be paid on such Preferred Securities,
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to the extent the Trust shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price"), to the extent the Trust has funds available therefor,
with respect to any 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 Preferred Securities as provided in the Trust
Agreement), the lesser of (a) the aggregate of the Liquidation Amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Trust shall have funds available therefor (the
"Liquidation Distribution"), and (b) the amount of assets of the Trust remaining
available for distribution to Holders in liquidation of the Trust.
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Preferred Securities Guarantee and thereafter means each
such Successor Guarantee Trustee.
"Guarantor" means Second Bancorp Incorporated, an Ohio corporation.
"Holder" shall mean any holder, as registered on the books and records
of the Trust, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee or any of their
respective Affiliates.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Indenture dated as of _________, 2001, among the
Debenture Issuer and Wilmington Trust Company, as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued to the
Property Trustee of the Trust.
"Liquidation Amount" means the stated value of $10 per Preferred
Security.
"Liquidation Distribution" has the meaning provided therefor in the
definition of Guarantee Payments.
"Majority in Liquidation Amount of the Preferred Securities" means the
holders of more than 50% of the Liquidation Amount of all of the 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 Preferred Securities Guarantee shall include:
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(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and
the definition relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each
officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been
complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" means the ____% Cumulative Trust Preferred
Securities representing undivided beneficial interests in the assets of the
Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Redemption Price" has the meaning provided therefor in the definition
of Guarantee Payments.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee with direct
responsibility for the administration of this Preferred Securities Guarantee,
including any vice-president, any assistant vice-president, any assistant
secretary or other officer or assistant officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
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II TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are
required to be part of this Preferred Securities
Guarantee and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this
Preferred Securities Guarantee limits, qualifies or
conflicts with the duties imposed by Section 310 to
317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
2.2 Lists of Holders of Securities.
(a) In the event the Guarantee Trustee is not also acting
in the capacity of the Property Trustee under the
Trust Agreement, the Guarantor shall cause to be
provided to the Guarantee Trustee a list, in such
form as the Guarantee Trustee may reasonably require,
of the names and addresses of the Holders of the
Preferred Securities ("List of Holders") as of the
date (i) within one Business Day after March 15, June
15, September 15 and December 15 of each year,
commencing December 15, 2001, 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 Guarantee Trustee; provided, that the
Guarantor shall not be obligated to provide such List
of Holders at any time the List of Holders does not
differ from the most recent List of Holders caused to
have been given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List
of Holders previously given to it on receipt of a new
List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section
312(b) of the Trust Indenture Act.
2.3 Reports by the Guarantee Trustee.
On or before July 31 of each year, commencing July 31, 2002, the
Guarantee Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Guarantee Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
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2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Preferred
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may
be given in the form of an Officers' Certificate.
2.6 Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Preferred
Securities Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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 of the
Preferred Securities, notices of all Events of
Default actually known to a Responsible Officer of
the 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 Guarantee Trustee
shall be protected in withholding such notice if and
so long as a Responsible Officer of the Guarantee
Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of
the Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless (i) the
Guarantee Trustee shall have received written notice
of such Event of Default, or (ii) a Responsible
Officer of the Guarantee Trustee charged with the
administration of the Trust Agreement shall have
obtained actual knowledge of such Event of Default.
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2.8 Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by
the Guarantee Trustee for the benefit of the Holders
of the Preferred Securities, and the Guarantee
Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee.
The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor
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 Guarantee
Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Guarantee Trustee has
occurred and is continuing, the Guarantee Trustee
shall enforce this Preferred Securities Guarantee for
the benefit of the Holders of the Preferred
Securities.
(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 undertake to
perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred
Securities Guarantee against the Guarantee Trustee.
In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) and
is actually known to a Responsible Officer of the
Guarantee Trustee, the Guarantee Trustee shall
exercise such of the rights and powers vested in it
by this Preferred Securities Guarantee, and use the
same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Preferred Securities Guarantee
shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own
negligent failure to act, or its own willful
misconduct, except that:
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(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 Preferred
Securities Guarantee, and the
Guarantee Trustee shall not be
liable except for the performance of
such duties and obligations as are
specifically set forth in this
Preferred Securities Guarantee, and
no implied covenants or obligations
shall be read into this Preferred
Securities Guarantee against the
Guarantee Trustee; 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 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 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
Preferred Securities Guarantee;
(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
Responsible Officer of 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 Preferred Securities
Guarantee; and
(iv) no provision of this Preferred Securities
Guarantee 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
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the repayment of such funds or liability is
not reasonably assured to it under the terms
of this Preferred Securities Guarantee or
indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or
refraining from acting upon, any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent,
order, bond, debenture, note, other evidence
of indebtedness or other paper or document
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 Preferred Securities
Guarantee shall be sufficiently evidenced by
an Officers' Certificate;
(iii) whenever, in the administration of this
Preferred Securities Guarantee, the
Guarantee Trustee shall deem it desirable
that a matter be proved or established
before taking, suffering or omitting 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, shall be promptly delivered by the
Guarantor;
(iv) the Guarantee Trustee shall have no duty to
see to any recording, filing or registration
of any instrument (or any rerecording,
refiling or registration thereof);
(v) the 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 Guarantee Trustee shall have
the right at any time to seek instructions
concerning the administration of this
Preferred Securities Guarantee from any
court of competent jurisdiction;
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(vi) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Preferred
Securities Guarantee at the request or
direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee
such security and indemnity, reasonably
satisfactory to the Guarantee Trustee,
against the costs, expenses (including
attorneys' fees and expenses and the
expenses of the 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 Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi)
shall be taken to 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
Preferred Securities Guarantee;
(vii) 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;
(viii) the 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 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) no third party shall be required to inquire
as to the authority of the Guarantee Trustee
to so act or as to its compliance with any
of the terms and provisions of this
Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking
such action;
(x) whenever in the administration of this
Preferred Securities Guarantee 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 (i) may
request instructions from the Holders of a
Majority in Liquidation Amount of the
Preferred Securities, (ii) may refrain from
enforcing such remedy or right or taking
such other action until such instructions
are received, and (iii) shall be protected
in conclusively relying on or acting in
accordance with such instructions.
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(b) No provision of this Preferred Securities Guarantee
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.
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 Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
IV GUARANTEE TRUSTEE
4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing
business under the laws of the United States
of America or any state or territory thereof
or of the District of Columbia, or a
corporation or Person permitted by the
Securities and Exchange Commission to act as
an institutional trustee under the Trust
Indenture Act, authorized under such laws to
exercise corporate trust powers, having a
combined capital and surplus of at least
$50,000,000, and subject to supervision or
examination by federal, state, territorial
or District of Columbia authority. If such
corporation publishes reports of condition
at least annually, pursuant to law or to the
requirements of the supervising or examining
authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such
corporation shall be deemed to be its
combined capital and surplus as set forth in
its most recent report of condition so
published.
(b) If at any time the 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(c).
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(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Guarantee
Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust
Indenture Act.
4.2 Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may
be appointed or removed without cause at any time by
the Guarantor.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor
Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have
been appointed. The Guarantee Trustee may resign from
office (without need for prior or subsequent
accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and
has accepted such appointment by instrument in
writing executed by such Successor Guarantee Trustee
and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor 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 Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Preferred Securities
Guarantee or removal or resignation of the Guarantee
Trustee pursuant to this Section 4.2, the Guarantor
shall pay to the Guarantee Trustee all fees and
expenses accrued to the date of such termination,
removal or resignation.
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V GUARANTEE
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.
5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
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.
5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the
Trust of any express or implied agreement, covenant,
term or condition relating to the 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 Preferred Securities
or the extension of time for the performance of any
other obligation under, arising out of, or in
connection with, the Preferred Securities (other than
an 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 or any
extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or
exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of
the Trust granting indulgence or extension of any
kind;
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(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets
of the Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) any failure or omission to receive any regulatory
approval or consent required in connection with the
Preferred Securities (or the common equity securities
issued by the Trust), including the failure to
receive any approval of the Board of Governors of the
Federal Reserve System required for the redemption of
the Preferred Securities;
(g) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(h) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge
or defense of a guarantor, 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.
5.4 Rights of Holders.
(a) Subject to Section 5.4(b), the Holders of a Majority
in Liquidation Amount of the Preferred Securities
have the right to direct the time, method and place
of conducting of any proceeding for any remedy
available to the Guarantee Trustee in respect of this
Preferred Securities Guarantee or exercising any
trust or power conferred upon the Guarantee Trustee
under this Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute and
prosecute a legal proceeding directly against the
Guarantor to enforce its rights under this Preferred
Securities Guarantee, without first instituting a
legal proceeding against the Trust, the Guarantee
Trustee or any other Person.
5.5 Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
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5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Preferred Securities against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Preferred Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Preferred Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Preferred Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (h), inclusive, of Section 5.3 hereof.
VI LIMITATION OF TRANSACTIONS; SUBORDINATION
6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default under this Preferred Securities Guarantee, 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
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than as a result of a reclassification of its capital
stock for another class of its capital stock) and (b) the Guarantor shall not
make any payment of interest or principal on or repay, repurchase or redeem any
debt securities issued by the Guarantor which rank pari passu with or junior to
the Debentures other than payments under this Preferred Securities Guarantee.
6.2 Ranking.
This 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,
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.
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VII TERMINATION
7.1 Termination.
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) full payment
of the amounts payable in accordance with the Trust Agreement upon liquidation
of the Trust, or (iii) distribution of the Debentures to the Holders of the
Preferred Securities. Notwithstanding the foregoing, this Preferred Securities
Guarantee shall continue to be effective or shall be reinstated, as the case may
be, if at any time any Holder of Preferred Securities must restore payment of
any sums paid under the Preferred Securities or under this Preferred Securities
Guarantee.
VIII INDEMNIFICATION
8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor
or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith
in accordance with this Preferred Securities
Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by
this Preferred Securities Guarantee or by law, except
that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the
Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by
any Person as to matters the Indemnified Person
reasonably believes are within such other Person's
professional or expert competence and who has been
selected with reasonable care by or on behalf of the
Guarantor, including information, opinions, reports
or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets
from which Distributions to Holders of Preferred
Securities might properly be paid.
8.2 Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
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and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of this Preferred Securities Guarantee.
IX MISCELLANEOUS
9.1 Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
9.2 Amendments.
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in Liquidation Amount of
the Preferred Securities. The provisions of Article VI of the Trust Agreement
with respect to meetings of Holders of the Preferred Securities apply to the
giving of such approval.
9.3 Notices.
All notices provided for in this Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such
other address as the Guarantee Trustee may give
notice of to the Holders of the Preferred
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
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
Preferred Securities):
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Second Bancorp Incorporated
108 Main Avenue, S.W.
P.O. Box 1311
Warren, OH 44482-1311
Attention: Chief Financial Officer
(c) If given to any Holder of 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.
9.4 Benefit.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
This Preferred Securities Guarantee is executed as of the day and year
first above written.
SECOND BANCORP INCORPORATED, as Guarantor
By:
-------------------------------
Its:
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WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By:
-------------------------------
Its:
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