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EXHIBIT 4.7
GUARANTEE AGREEMENT
BETWEEN
VIB CORP
(AS GUARANTOR)
AND
WILMINGTON TRUST COMPANY
(AS GUARANTY TRUSTEE)
DATED AS OF
FEBRUARY 5, 1999
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CROSS-REFERENCE TABLE*
SECTION OF SECTION OF
TRUST INDENTURE ACT GUARANTEE
OF 1939, AS AMENDED AGREEMENT
------------------- ----------
310(a)......................................................................................................4.01(a)
310(b)................................................................................................4.01(c), 2.08
310(c).................................................................................................Inapplicable
311(a)......................................................................................................2.02(b)
311(b) .....................................................................................................2.02(b)
311(c).................................................................................................Inapplicable
312(a) .....................................................................................................2.02(a)
312(b)......................................................................................................2.02(b)
313 ...........................................................................................................2.03
314(a).........................................................................................................2.04
314(b).................................................................................................Inapplicable
314(c).........................................................................................................2.05
314(d).................................................................................................Inapplicable
314(e).............................................................................................1.01, 2.05, 3.02
314(f)...................................................................................................2.01, 3.02
315(a)......................................................................................................3.01(d)
315(b).........................................................................................................2.07
315(c).........................................................................................................3.01
315(d)......................................................................................................3.01(d)
316(a)................................................................................................5.04(a), 2.06
316(b).........................................................................................................5.03
316(c).........................................................................................................2.02
317(a).................................................................................................Inapplicable
317(b).................................................................................................Inapplicable
318(a)......................................................................................................2.01(b)
318(b).........................................................................................................2.01
318(c)......................................................................................................2.01(a)
--------
*This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS...........................................................................................1
SECTION 1.01. DEFINITIONS...............................................................................1
ARTICLE II - TRUST INDENTURE ACT..................................................................................4
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION..........................................................4
SECTION 2.02. LISTS OF HOLDERS..........................................................................4
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE..........................................................5
SECTION 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE.....................................................5
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.......................................................................................5
SECTION 2.06. EVENTS OF DEFAULT; WAIVER.................................................................5
SECTION 2.07. EVENT OF DEFAULT; NOTICE..................................................................5
SECTION 2.08. CONFLICTING INTERESTS.....................................................................6
ARTICLE III - POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE......................................................6
SECTION 3.01. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE................................................6
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.......................................................8
SECTION 3.03. INDEMNITY.................................................................................9
ARTICLE IV - GUARANTEE TRUSTEE....................................................................................9
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY............................................................9
SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF
GUARANTEE TRUSTEE..............................................................................10
ARTICLE V - GUARANTEE............................................................................................11
SECTION 5.01. GUARANTEE................................................................................11
SECTION 5.02. WAIVER OF NOTICE AND DEMAND..............................................................11
SECTION 5.03. OBLIGATIONS NOT AFFECTED.................................................................11
SECTION 5.04. RIGHTS OF HOLDERS........................................................................12
SECTION 5.05. GUARANTEE OF PAYMENT.....................................................................12
SECTION 5.06. SUBROGATION..............................................................................12
SECTION 5.07. INDEPENDENT OBLIGATIONS..................................................................12
ARTICLE VI - COVENANTS AND SUBORDINATION.........................................................................13
SECTION 6.01. COVENANTS................................................................................13
SECTION 6.02. SUBORDINATION............................................................................13
SECTION 6.03. PARI PASSU GUARANTEES....................................................................13
ARTICLE VII - TERMINATION........................................................................................14
SECTION 7.01. TERMINATION..............................................................................14
ARTICLE VIII - MISCELLANEOUS.....................................................................................14
SECTION 8.01. SUCCESSORS AND ASSIGNS...................................................................14
SECTION 8.02. AMENDMENTS...............................................................................14
SECTION 8.03. NOTICES..................................................................................14
SECTION 8.04. BENEFIT..................................................................................15
SECTION 8.05. INTERPRETATION...........................................................................16
SECTION 8.06. GOVERNING LAW............................................................................16
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SECTION 8.07. COUNTERPARTS.............................................................................16
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of February 5, 1999, is executed and
delivered by VIB Corp, a California corporation (the "Guarantor"), to Wilmington
Trust Company, a Delaware banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of Valley Capital Trust, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of February 5, 1999 among the Trustees of the Issuer named
therein, the Guarantor, as Depositor (as defined in the Trust Agreement), and
the Holders, from time to time, of undivided beneficial interests in the assets
of the Trust, the Issuer is issuing up to $23,000,000 aggregate liquidation
amount of its 9.00% Capital Securities (liquidation amount $1,000 per capital
security) (the "Capital Securities" and, together with the Common Securities,
the "Trust Securities") and up to $712,000 aggregate liquidation amount of its
Common Securities, each representing ownership interests in the assets of the
Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined in the
Trust Agreement) of the Guarantor which will be deposited with Wilmington Trust
Company, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Capital Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders 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 Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Capital Securities.
ARTICLE I
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DEFINITIONS
SECTION 1.01. DEFINITIONS. As used in this Guarantee Agreement, the terms
set forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Trust Agreement as
in effect on the date hereof unless otherwise indicated.
"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, provided, however that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. 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.
"Capital Securities" has the meaning specified in the recitals to this
Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer (liquidation amount $1,000 per
Common Security).
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case,
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such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise.
"Event of Default" means (i) a default by the Guarantor on 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" or "Guarantee Agreement" means this Guarantee Agreement, dated
as of February 5, 1999, between VIB Corp and the Guarantee Trustee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer shall have funds available therefor
at such time; (ii) the Redemption Price (as defined in the Trust Agreement) with
respect to the Capital Securities called for redemption by the Issuer to the
extent the Issuer shall have funds available therefor at such time; and (iii)
upon a voluntary or involuntary dissolution, winding-up or liquidation of the
Issuer (other than in connection with the distribution of Debentures to the
Holders or a redemption of all of the Capital Securities), the lesser of (a) the
Liquidation Distribution (as defined in the Trust Agreement) to the extent the
Issuer shall have funds available therefor at such time, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer after satisfaction of liabilities to creditors of the
Issuer as required by applicable law.
"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 Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Capital Securities; provided, however, that in determining
whether the holders of the requisite percentage of Capital 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.
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"Indenture" means the Junior Subordinated Indenture dated as of February
5, 1999, between the Guarantor and Wilmington Trust Company, as trustee.
"Majority in Liquidation Amount of the Capital Securities" means, except
as provided by the Trust Indenture Act, Capital Securities representing more
than 50% of the liquidation amount of all then outstanding Capital Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board, Vice Chairman of the Board, Chief
Investment Officer, Chief Executive Officer, the President or a Vice President,
and by the Chief Financial Officer, Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each 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.
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"Responsible Officer" means, with respect to the Guarantee Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any financial services
officer or any other officer of the Corporate Trust Administration Department 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.
"Senior Debt" means the principal of (and premium, if any) and interest,
if any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Guarantor whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Guarantee or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Guarantee or to other Debt which is pari
passu with, or subordinated to, the Guarantee; provided, however, that Senior
Debt shall not be deemed to include: (a) any Debt of the Guarantor which, when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, was without recourse to the Guarantor; (b) any
Debt of the Guarantor to any of its Subsidiaries (as defined in the Indenture);
(c) Debt to any employee of the Guarantor; (d) trade accounts payable of the
Guarantor; (e) accrued liabilities arising in the ordinary course of business of
the Guarantor; (f) the Debentures; and (g) the Guarantee.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act, which are required to be part of this Guarantee
Agreement, and this Guarantee shall be governed by such provisions
as if such Act applied to this Guarantee.
(b) 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 through operation
of Section 318(c) thereof, such imposed duties shall control. If any
provision of this Guarantee Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or
excluded, such provision shall be deemed to apply to this Guarantee
Agreement as so modified or excluded, as the case may be.
SECTION 2.02. LISTS OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (i) quarterly, not later than April 15, July 15,
October 15 and January 15 in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Capital Securities ("List of Holders") as of a
date not more than 15 days prior to the delivery thereof, and (ii)
at such other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of 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.
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(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE. Not later than July 15 of
each year, commencing July 15, 1999, 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. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee, the Securities and Exchange Commission and the
Holders 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 as if such Act were
applicable to this Guarantee.
SECTION 2.05. 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 Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
liquidation amount of the Capital Securities may, by vote, on behalf of the
Holders of all of the Capital 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 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 2.07. EVENT OF DEFAULT; NOTICE.
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(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 Capital Securities, notices of all Events 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 of the
Capital Securities.
(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
actual knowledge, of such Event of Default.
SECTION 2.08. 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 GUARANTEE TRUSTEE
SECTION 3.01. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders of the Capital Securities, and the
Guarantee Trustee shall not transfer this Guarantee Agreement to any
Person except a Holder of Capital Securities exercising his or her
rights pursuant to Section 5.04(iv) of the Amended and Restated
Trust Agreement dated February 5, 1999, 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
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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 of the Capital 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 Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), 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 individual
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
2.01), 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; and
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(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 or the Trust Indenture Act, as applicable;
(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 Capital Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee,
or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is
not reasonably assured to it
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under the terms of this Guarantee Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it.
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting 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 (at the expense of the Guarantor)
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 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
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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 3.02(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 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 with due care
by it hereunder.
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(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A)
may request instructions from the Holders of the Capital
Securities, (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 3.03. INDEMNITY. The Guarantor agrees to indemnify the Guarantee
Trustee for, and to hold it harmless against, any loss, damage, claims,
liability, penalty or expense incurred without negligence 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.
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ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01. 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 would be eligible pursuant to the Trust
Indenture Act (as if such Act were applicable hereto) to act
as such and has a combined capital and surplus of at least
Fifty Million U.S. Dollars ($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 a supervising or examining authority, then,
for the purposes of this Section 4.01(a)(ii) 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 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section 4.02(c).
(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 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
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(a) Subject to Section 4.02(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 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 hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. 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 an 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 4.02 within 30 days
after delivery to the Guarantor of an instrument 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.
ARTICLE V
GUARANTEE
SECTION 5.01. 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), as and when due,
regardless of any defense (other than the defense of payment), right of set-off
or counterclaim which the Issuer may have or assert. The Guarantor's
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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 to pay
such amounts to the Holders.
SECTION 5.02. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of the Guarantee Agreement and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer 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 5.03. 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 of any express or implied
agreement, covenant, term or condition relating to the Capital
Securities or Common Securities to be performed or observed by the
Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any
interest payment period on the Debentures as so provided in the
Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Capital Securities or Common
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities or Common 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
Capital Securities or any action on the part of the Issuer 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
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities or the Common 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 5.03 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04. RIGHTS OF HOLDERS. The Guarantor expressly acknowledges that
: (a) this Guarantee Agreement will be deposited with the Guarantee Trustee to
be held for the benefit of the Holders; (b) the Guarantee Trustee has the right
to enforce this Guarantee Agreement on behalf of the Holders; (c) the Holders of
a Majority in Liquidation Amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (d) any Holder of Capital Securities may, to the extent
permissible under applicable law, 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
or any other Person.
SECTION 5.05. GUARANTEE OF PAYMENT. This Guarantee Agreement creates a
guarantee of payment and not a guarantee of collection. This Guarantee Agreement
will not be discharged except by payment
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of the Guaranty Payments in full (without duplication of amounts theretofore
paid by Issue or upon distribution of Debentures to Holders as provided in the
Trust Agreement).
SECTION 5.06. SUBROGATION. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement and shall have the
right to waive payment by the Issuer pursuant to Section 5.01; 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 5.07. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the Capital 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 5.03 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01. COVENANTS. So long as any Capital Securities remain
outstanding, in the event (a) the Guarantor shall be in default with respect to
its Guarantee Payments hereunder, (b) there shall have occurred and be
continuing any Event of Default under the Indenture or (c) the Guarantor shall
have given notice of its selection of an Extension Period (as defined in the
Indenture) and such period, or any extension thereof, is continuing, the
Guarantor shall not, and shall cause its Subsidiaries (as defined in the
Indenture) not to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Guarantor's
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outstanding capital stock, (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities that rank
pari passu with or junior to the Debentures or make any guarantee payments with
respect to the foregoing, (iii) sell, lease, license, transfer or otherwise
dispose of any asset or interest therein or (iv) with respect to the Guarantor,
make any capital contributions or similar advances to any Subsidiaries;
provided, however, that nothing shall prevent (A) any such transaction in the
ordinary course of business or in immaterial amounts (other than transactions
described in clause (iv) above), (B) reorganizations of Subsidiaries, so long as
the Guarantor's percentage ownership interest in such Subsidiaries does not
decrease, (C) dividends or distributions in common stock of the Guarantor, (D)
payments hereunder, or under any similar guarantee by the Guarantor with respect
to any other securities of any of its Subsidiaries; provided that the proceeds
of the issuance of such securities were used to purchase debt securities of the
Guarantor that rank pari passu with or junior to the Debentures and (E)
purchases of common stock of the Guarantor related to the rights under any of
the Guarantor's benefit plans for its directors, officers or employees.
SECTION 6.02. 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 Debt 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 Eleven of the Indenture
will apply, mutatis mutandis, to the obligations of the Guarantor hereunder. The
obligations of the Guarantor hereunder do not constitute Senior Debt (as defined
in the Indenture) of the Guarantor.
SECTION 6.03. PARI PASSU GUARANTEES. The obligations of the Guarantor
under this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under (a) any similar guarantee agreements issued by the Guarantor on
behalf of the holders of preferred or capital securities issued by a business
trust or similar entity whose common
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securities are owned, directly or indirectly, by the Guarantor, (b) the
Indenture and the Debentures issued thereunder; (c) the Expense Agreement (as
defined in the Trust Agreement) and any similar expense agreements entered into
by the Guarantor in connection with the offering of capital securities issued by
a business trust or similar entity whose common securities are owned, directly
or indirectly, by the Guarantor, and (d) 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 7.01. TERMINATION. This Guarantee Agreement shall terminate and be
of no further force and effect upon (a) full payment of the Redemption Price of
all Capital Securities, (b) subject to Federal Reserve approval, if then
required under the applicable capital guidelines or policies of the Federal
Reserve, the distribution of Debentures to Holders of Capital Securities in
exchange for all of the Capital Securities or (c) full payment of the amounts
payable in accordance with the Trust Agreement upon liquidation of the Issuer.
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
must restore payment of any sums paid with respect to Capital Securities or this
Guarantee Agreement. Guarantor will indemnify each Holder and hold it harmless
from and against any loss it may suffer in such circumstance. Guarantor
unconditionally waives any right to revoke this Guarantee Agreement under
Section 2815 of the California Civil Code or otherwise.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. 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 Capital Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor or a
conveyance, transfer or lease of the Guarantor's properties that, in either
case, is permitted under Article Eight 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 8.02. AMENDMENTS. Except with respect to any changes that do not
adversely affect the rights of Holders in any material respect (in which case no
consent of Holders will be required), this Guarantee Agreement may be amended
only with the prior approval of the Holders of not less than a Majority in
liquidation amount of the outstanding Capital Securities. The provisions of
Article VI of the Trust Agreement concerning meetings of Holders shall apply to
the giving of such approval.
SECTION 8.03. 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 as the Guarantor may give notice
of to the Guarantee Trustee:
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VIB Corp
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
(b) if given to the Issuer, at the address or telecopy number set forth
below or such other address as the Issuer may give notice of to the
Guarantee Trustee:
Valley Capital
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Administrative Trustee
with copy to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's
address or telecopy number set forth below:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
(d) if given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
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
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document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.04. BENEFIT. This Guarantee Agreement is solely for the benefit
of the Holders, and is not separately transferable from the Capital Securities,
subject to Section 3.01(a).
SECTION 8.05. INTERPRETATION. In this Guarantee Agreement, unless the
context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them
in Section 1.01 unless otherwise indicated;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.06. GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
SECTION 8.07. COUNTERPARTS. This instrument may be executed in any number
of counterparts, each of which when so executed shall
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be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
This GUARANTEE AGREEMENT is executed as of the day and year first above
written.
VIB CORP WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Title: Vice President
Executive Officer
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