Exhibit 4.15
GUARANTEE AGREEMENT
by and between
BB&T CORPORATION
as Guarantor
and
U.S. BANK NATIONAL ASSOCIATION
as Guarantee Trustee
relating to
BB&T CAPITAL TRUST I
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Dated as of _____________, 20__
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................................1
SECTION 1.1. Definitions......................................................1
ARTICLE II TRUST INDENTURE ACT................................................................4
SECTION 2.1. Trust Indenture Act; Application.................................4
SECTION 2.2. List of Holders..................................................5
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........................................6
SECTION 2.7. Event of Default; Notice.........................................6
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..............................8
SECTION 3.3. Compensation; Indemnity; Fees....................................9
ARTICLE IV GUARANTEE TRUSTEE.................................................................10
SECTION 4.1. Guarantee Trustee; Eligibility..................................10
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.............................................................10
ARTICLE V GUARANTEE..........................................................................11
SECTION 5.1. Guarantee.......................................................11
SECTION 5.2. Waiver of Notice and Demand.....................................11
SECTION 5.3. Obligations Not Affected........................................11
SECTION 5.4. Rights of Holders...............................................12
SECTION 5.5. Guarantee of Payment............................................12
SECTION 5.6. Subrogation.....................................................13
SECTION 5.7. Independent Obligations.........................................13
ARTICLE VI COVENANTS AND SUBORDINATION.......................................................13
SECTION 6.1. Subordination...................................................13
SECTION 6.2. Pari Passu Guarantees...........................................13
ARTICLE VII TERMINATION......................................................................14
SECTION 7.1. Termination.....................................................14
ARTICLE VIII MISCELLANEOUS...................................................................14
SECTION 8.1. Successors and Assigns..........................................14
SECTION 8.2. Amendments......................................................14
SECTION 8.3. Notices.........................................................14
SECTION 8.4. Benefit.........................................................15
SECTION 8.5. Governing Law...................................................15
SECTION 8.6. Counterparts....................................................15
GUARANTEE AGREEMENT, dated as of August __, 2005, between BB&T CORPORATION, a North
Carolina corporation (the "Guarantor"), having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and U.S. Bank National Association, a national
banking association, as trustee (in such capacity, the "Guarantee Trustee" and, in its
separate corporate capacity and not in its capacity as Guarantee Trustee, “U.S. Bank”), for
the benefit of the Holders (as defined herein) from time to time of the Capital Securities
(as defined herein) of BB&T CAPITAL TRUST I, a Delaware statutory trust (the "Issuer Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement, of even date herewith
(the "Trust Agreement"), among BB&T Corporation, as Depositor, the Property Trustee, the
Delaware Trustee, and the Administrative Trustees (each as named therein) and the holders
from time to time of undivided beneficial interests in the assets of the Issuer Trust, the
Issuer Trust is issuing $[____________] aggregate Liquidation Amount (as defined in the
Trust Agreement) of its [__%] Capital Securities, Series [A] (the "Capital Securities"),
representing preferred undivided beneficial interests in the assets of the Issuer Trust and
having the terms set forth in the Trust Agreement and $[___________] aggregate Liquidation
Amount (as defined in the Trust Agreement) of its [__%] Common Securities (the “Common
Securities” and together with the Capital Securities, the “Trust Securities”); and
WHEREAS, the Capital Securities will be issued by the Issuer Trust, and the proceeds
thereof, together with the proceeds from the issuance of the Issuer Trust's Common
Securities (as defined herein), will be used to purchase the Debentures (as defined in the
Trust Agreement) of the Guarantor, which Debentures will be deposited with U.S. Bank, as
Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Trust Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth herein, to pay to
the Holders of the Trust 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 Trust Securities by each Holder,
which purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee Agreement for the benefit of the Holders from time to
time.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(c) The words "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings assigned to
them in accordance with United States generally accepted accounting principles;
(e) Unless the context otherwise requires, any reference to an "Article" or a
"Section" refers to an Article or a Section, as the case may be, of this Guarantee
Agreement; and
(f) The words "hereby," "herein," "hereof" and "hereunder" and other words of similar
import refer to this Guarantee Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, "control," when used with respect to any
specified Person, means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or the Executive
Committee of the board of directors of the Guarantor (or any other committee of the board of
directors of the Guarantor performing similar functions) or a committee designated by the
board of directors of the Guarantor (or such committee), comprised of two or more members of
the board of directors of the Guarantor or officers of the Guarantor, or both.
"Capital Securities" has the meaning specified in the recitals to this Guarantee
Agreement.
"Common Securities" has the meaning specified in the recitals to this Guarantee
Agreement.
"Event of Default" means (i) a default by the Guarantor in any of its payment
obligations under this Guarantee Agreement or (ii) a default by the Guarantor 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 Trust Securities, to the extent not paid or made by or on
behalf of the Issuer Trust: (i) any accumulated and unpaid Distributions (as defined in the
Trust Agreement) required to be paid on the Trust Securities, to the extent the Issuer Trust
shall have funds on hand available therefor at such time; (ii) the Redemption Price (as
defined in the Trust Agreement) with respect to any Trust Securities called for redemption
by the Issuer Trust, to the extent the Issuer Trust shall have funds on hand available
therefor at such time; and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Issuer Trust, unless Debentures are distributed to the Holders, the
lesser of (a) the Liquidation Distribution (as defined in the Trust Agreement) with respect
to the Trust Securities, to the extent that the Issuer Trust shall have funds on hand
available therefor at such time, and (b) the amount of assets of the Issuer Trust remaining
available for distribution to Holders on liquidation of the Issuer.
"Guarantee Trustee" means U.S. Bank, solely in its capacity as Guarantee Trustee and
not in its individual capacity, until a Successor Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Guarantee Agreement, and
thereafter means each such Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this Guarantee
Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any Trust
Securities; provided, however, that in determining whether the holders of the requisite
percentage of Trust Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture, dated as of August __, 2005,
between BB&T Corporation and U.S. Bank, as trustee, as the same may be modified, amended or
supplemented from time to time.
"Issuer Trust" has the meaning specified in the first paragraph of this Guarantee
Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Trust Securities" means, except as provided by
the Trust Indenture Act, Trust Securities representing more than 50% of the aggregate
Liquidation Amount (as defined in the Trust Agreement) of all Trust Securities then
Outstanding (as defined in the Trust Agreement).
"Officers' Certificate" means, with respect to any Person, a certificate signed by
the Chairman or a Vice Chairman of the Board of Directors of such Person or the President or
a Vice President of such Person, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of such Person. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement by each officer signing the Officers' Certificate that such officer
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or investigation as, in
such officer's opinion, is necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, company, limited liability
company, trust, statutory or business trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any Senior Vice
President, any Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust
Officer or any other officer of the Corporate Trust Department of the Guarantee Trustee and
also means, with respect to a particular 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 Agreement" means the Amended and Restated Trust Agreement of the Issuer Trust
referred to in the recitals to this Guarantee Agreement, as modified, amended or
supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date
as of which this Guarantee Agreement was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Securities" has the meaning specified in the recitals to this Guarantee
Agreement.
"Vice President," when used with respect to the Guarantor, means any duly appointed
vice president, whether or not designated by a number or a word or words added before or
after the title "vice president."
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
Except as otherwise expressly provided herein, the Trust Indenture Act shall apply as
a matter of contract to this Guarantee Agreement for purposes of interpretation,
construction and defining the rights and obligations hereunder, and this Guarantee
Agreement, the Guarantor and the Guarantee Trustee shall be deemed for all purposes hereof
to be subject to and governed by the Trust Indenture Act to the same extent as would be the
case if this Guarantee Agreement were qualified under the Trust Indenture Act on the date
hereof. Except as otherwise expressly provided herein, if and to the extent that any
provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a)
semiannually, on or before June 30 and December 31 of each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the Holders (a "List
of Holders") as of a date not more than 15 days prior to the delivery thereof, and (b) at
such other times as the Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and has not otherwise been
received by the Guarantee Trustee in its capacity as such. 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 the requirements of Section 311(a),
Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, commencing May 15, 2006, the Guarantee
Trustee shall provide to the Holders 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. If this Guarantee Agreement shall have been qualified under 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.
The Guarantor shall provide to the Guarantee Trustee and the Holders such documents,
reports and information, if any, as required by Section 314 of the Trust Indenture Act and
the compliance certificate required by Section 314 of the Trust Indenture Act, in the form,
in the manner and at the times required by Section 314 of the Trust Indenture Act, provided
that such documents, reports and information shall be required to be provided to the
Securities and Exchange Commission only if this Guarantee Agreement shall have been
qualified under the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with
such conditions precedent, if any, provided for in this Guarantee Agreement that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer of the Guarantor 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 at least a Majority in Liquidation Amount of the Trust Securities may,
by vote, on behalf of the Holders of all the Trust Securities, waive any past default or
Event of Default and its consequences. Upon such waiver, any such default or Event of
Default shall cease to exist, and any default or 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 thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to
the Holders, notice of any such Event of Default known to the Guarantee Trustee, unless such
Event of Default has been cured before the giving of such notice, provided that, except in
the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be
protected in withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of
Default unless the Guarantee Trustee shall have received written notice, or a Responsible
Officer charged with the administration of this Guarantee Agreement shall have obtained
written notice, of such Event of Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit
of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any
Person except to a Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as 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 conveyancing documents have been executed and delivered pursuant to the appointment of
such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Guarantee Agreement (including pursuant to
Section 2.1), and no implied covenants shall be read into this Guarantee Agreement against
the Guarantee Trustee. If an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee Agreement, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent failure to
act or its own 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 Trust 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.
(iv) Subject to Section 3.1(b), 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
reasonably 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 rely and shall be fully protected enacting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably believed by it
to be genuine and to have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by this Guarantee
Agreement shall be sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting to take any action hereunder, the Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the written
advice or opinion of such legal counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with such advice
or opinion. Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Guarantee Agreement at the request or direction
of any Holder unless such Holder shall have provided to the Guarantee Trustee such
adequate 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 contained in this Section(a)(v) 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 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 misconduct or
negligence on the part of any such agent or attorney appointed by it with due care
hereunder.
(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 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. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such reasonable compensation
for all services rendered by it hereunder as maybe agreed by the Guarantor and the Guarantee
Trustee from time to time(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee
upon request for all reasonable expenses, disbursements and advances incurred or made by the
Guarantee Trustee in accordance with any provision of this Guarantee Agreement (including
the reasonable compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its negligence or
bad faith; and (c) to indemnify the Guarantee Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence, willful misconduct or bad faith
on the part of the Guarantee Trustee, arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs and expenses of defending
itself 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.
The provisions of this Section 3.3 shall survive the termination of this Guarantee
Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000, and shall be
a corporation meeting the requirements of Section 310(a) of the Trust Indenture Act.
If such corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority, then, for the
purposes of this Section 4.1 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.
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or removed at
any time by the action of the Holders of a Majority in Liquidation Amount of the Trust
Securities delivered to the Guarantee Trustee and the Guarantor (i) for cause or (ii) if a
Debenture Event of Default (as defined in the Trust Agreement) shall have occurred and be
continuing at any time.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by giving written notice thereof to the Holders and
the Guarantor and by appointing a successor Guarantee Trustee. The Guarantee Trustee shall
appoint a successor by requesting from at least three Persons meeting the requirements of
Section 4.1(a) their expenses and charges to serve as the Guarantee Trustee, and selecting
the Person who agrees to the lowest expenses and charges.
(c) The Guarantee Trustee appointed hereunder shall hold office until a Successor
Guarantee Trustee shall have been appointed and shall have accepted such appointment. No
removal or resignation of a Guarantee Trustee shall be effective 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 and, in the case of any
resignation, 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 Holders and
the Guarantor of a notice of resignation, the resigning Guarantee Trustee may petition, at
the expense of the Guarantor, 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) 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 and a
replacement shall not be appointed prior to such resignation or removal, or if a vacancy
shall occur in the office of Guarantee Trustee for any cause, the Holders of the Trust
Securities, by the action of the Holders of record of not less than 25% in aggregate
Liquidation Amount (as defined in the Trust Agreement) of the Trust Securities then
Outstanding (as defined in the Trust Agreement) delivered to such Guarantee Trustee, may
appoint a Successor Guarantee Trustee or Trustees. If no successor Guarantee Trustee shall
have been so appointed by the Holders of the Trust Securities and accepted appointment, any
Holder, on behalf of such Holder and all others similarly situated, or any other Guarantee
Trustee, may petition any court of competent jurisdiction for the appointment of a successor
Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of
the Issuer Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that the Issuer Trust may have or assert, except the defense of payment. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer Trust to pay such
amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of
any liability to which it applies or may apply, presentment, demand for payment, any right
to require a proceeding first against the Guarantee Trustee, the Issuer Trust or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the happening from
time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer Trust of any express or implied agreement, covenant, term or
condition relating to the Trust Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of allot 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 Debentures as provided in the
Indenture), Redemption Price, Liquidation Distribution or any other sums payable under the
terms of the Trust Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Trust 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 Trust Securities, or any action on the part of the Issuer Trust
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings affecting, the Issuer Trust or any of
the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Trust 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 the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (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 Trust 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 the Guarantor to enforce its
rights under this Guarantee Agreement without first instituting a legal proceeding against
the Guarantee Trustee, the Issuer Trust or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of collection. This
Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Issuer Trust) or upon the
distribution of Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders against the
Issuer Trust in respect of any amounts paid to the Holders by the Guarantor under this
Guarantee Agreement; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in
all cases as a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer Trust with respect to the Trust Securities and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred
to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will constitute
unsecured obligations of the Guarantor and will rank subordinate and junior in right of
payment to all Senior Indebtedness (as defined in the Indenture) of the Guarantor to the
extent and in the manner set forth in the Indenture with respect to the Debentures, and the
provisions of Article XIII of the Indenture will apply, mutatis mutandis, to the obligations
of the Guarantor hereunder. The obligations of the Guarantor hereunder do not constitute
Senior Indebtedness (as defined in the Indenture) of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank pari passu
with the obligations of the Guarantor under (i) any similar guarantee agreements issued by
the Guarantor on behalf of the holders of preferred or capital securities issued by any
Issuer Trust (as defined in the Indenture), (ii) the Indenture and the Securities (as
defined therein) issued thereunder; (iii) Section 4.6 of the Trust Agreement and any similar
expense agreements entered into by the Guarantor in connection with the offering of Trust
Securities (as defined in the Indenture) by any Issuer Trust (as defined in the Indenture),
and (iv) any other security, guarantee or other agreement or obligation that is expressly
stated to rank pari passu with the obligations of the Guarantor under this Guarantee
Agreement or with any obligation that ranks pari passu with the obligations of the
Guarantor under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and effect upon
(i) full payment of the Redemption Price (as defined in the Trust Agreement) of all Trust
Securities, (ii) the distribution of Debentures to the Holders in exchange for all of the
Trust Securities or (iii) full payment of the amounts payable in accordance with Article IX
of the Trust Agreement upon liquidation of the Issuer Trust. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as the case
may be, if at any time any Holder is required to repay any sums paid with respect to Trust
Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Trust Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor that is permitted
under Article VIII of the Indenture and pursuant to which the successor or assignee agrees
in writing to perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance with this
provision shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the rights of the
Holders in any material respect (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 Trust 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 or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set forth below or
such other address or telecopy number as the Guarantor may give notice to the Guarantee
Trustee and the Holders:
BB&T Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) if given to the Guarantee Trustee, at the Issuer Trust's address or telecopy
number set forth below or such other address or telecopy number as the Guarantee Trustee may
give notice to the Guarantor and Holders:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: Corporate Trust Services
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
BB&T Capital Trust I
c/o BB&T Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(c) if given to any Holder, at the address set forth on the books and records of the
Issuer Trust.
All notices hereunder shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document shall be deemed
to have been delivered on the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not
separately transferable from the Trust Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee Agreement as of
the day and year first above written.
BB&T CORPORATION, as Guarantor
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Guarantee Trustee
By:
Name:
Title: