<PAGE> 1
EXHIBIT 4.6
--------------------------------------------------------------------------------
GUARANTEE AGREEMENT
BETWEEN
VIB CORP
AS GUARANTOR
AND
FIRST UNION NATIONAL BANK
AS GUARANTEE TRUSTEE
Dated as of July 12, 2000
VIBC CAPITAL TRUST I
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
<TABLE>
<S> <C>
SECTION 1.1. Interpretation.......................................................... 2
SECTION 1.2. Definitions............................................................. 2
ARTICLE II
REPORTS
SECTION 2.1. List of Holders......................................................... 6
SECTION 2.2. Periodic Reports to the Guarantee Trustee............................... 6
SECTION 2.3. Events of Default; Waiver............................................... 6
SECTION 2.4. Event of Default; Notice................................................ 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.............................. 7
SECTION 3.2. Certain Rights of Guarantee Trustee..................................... 8
SECTION 3.3. Compensation............................................................ 10
SECTION 3.4. Indemnity............................................................... 10
SECTION 3.5. May Hold Securities..................................................... 10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.......................................... 11
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee........... 11
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee............................................................... 12
SECTION 5.2. Waiver of Notice and Demand............................................. 12
SECTION 5.3. Obligations Not Affected................................................ 12
SECTION 5.4. Rights of Holders....................................................... 13
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 5.5. Guarantee of Payment.................................................... 14
SECTION 5.6. Subrogation............................................................. 14
SECTION 5.7. Independent Obligations................................................. 14
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Dividends, Distributions and Payments................................... 14
SECTION 6.2. Subordination........................................................... 15
SECTION 6.3. Pari Passu Guarantees................................................... 15
ARTICLE VII
TERMINATION
SECTION 7.1. Termination............................................................. 15
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.................................................. 16
SECTION 8.2. Amendments.............................................................. 16
SECTION 8.3. Notices................................................................. 16
SECTION 8.4. Benefit................................................................. 17
SECTION 8.5. Governing Law........................................................... 17
SECTION 8.6. Counterparts............................................................ 18
</TABLE>
ii
<PAGE> 4
GUARANTEE AGREEMENT, dated as of July 12, 2000, executed and delivered
by VIB CORP, a California corporation (the "Guarantor") having its principal
office at 1498 Main Street, El Centro, CA 92243, and FIRST UNION NATIONAL BANK,
a national banking association, as trustee (in such capacity, the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of VIBC CAPITAL TRUST I, a New
York common law trust (the "Issuer").
W I T N E S S E T H :
WHEREAS, pursuant to a Trust Agreement, dated as of July 12, 2000 (the
"Trust Agreement"), among the Guarantor, as Depositor, the Property Trustee and
the Administrative Trustees named therein and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing $10,000,000 aggregate Liquidation Amount (as defined in the Trust
Agreement) of its 11.695% Preferred Securities (Liquidation Amount $1,000 per
preferred security) (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Notes (as
defined in the Trust Agreement) of the Guarantor, which will be deposited with
First Union National Bank, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement to
provide as follows for the benefit of the Holders from time to time of the
Preferred Securities:
<PAGE> 5
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. 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 1.2;
(b) the words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(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) 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;
(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 1.2. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings:
"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, that the Issuer
shall not be deemed to be an Affiliate of the Guarantor. 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.
2
<PAGE> 6
"Board of Directors" means either the board of directors of the
Guarantor or any duly authorized committee of that board.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Debt" means with respect to any Person, whether recourse is to all
or a portion of the assets of such Person, whether currently existing or
hereafter incurred, and whether or not contingent and without
duplication, (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 arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of
this Guarantee Agreement or thereafter incurred, for claims in respect
of derivative products, including interest rate, foreign exchange rate
and commodity forward contracts, options, swaps and similar
arrangements; (vii) every obligation of the type referred to in clauses
(i) through (vi) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or
otherwise, and (viii) any renewals, extensions, refundings, amendments
or modifications of any obligation of the type referred to in clauses
(i) through (vii).
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided,
that except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default from the
Guarantee Trustee and shall not have cured such default within 30 days
after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the
extent not paid or made by or on behalf of the Issuer: (i) any
accumulated and unpaid Distributions (as defined in the Trust Agreement)
required to be paid on the Preferred Securities, to the extent the
Issuer shall have funds on hand available therefor at such time, (ii)
the redemption price, including all accumulated and unpaid Distributions
to the date of redemption and any premium paid on the redemption of any
notes comprising assets of the Issuer (the "Redemption Price"), with
respect to any Preferred Securities called for redemption by the Issuer,
to the extent the Issuer shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination,
winding up or liquidation of the Issuer, unless Notes are distributed to
the Holders,
3
<PAGE> 7
the lesser of (a) the aggregate of the Liquidation Amount of $1,000 per
Preferred Security plus accumulated and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent that 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 in accordance with applicable law (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means First Union National Bank, 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 Preferred Securities; provided, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor, the Guarantee Trustee or any
Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture, dated as of
July 12, 2000, as supplemented and amended, between the Guarantor and
First Union National Bank, as trustee.
"List of Holders" has the meaning specified in Section 2.1.
"Majority in Liquidation Amount of the Preferred Securities" means
a vote by the Holder(s), voting separately as a class, of more than 50%
of the aggregate Liquidation Amount of all then outstanding Preferred
Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, Chief Financial
Officer, President or a Vice President of such Person, and by the
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 (other
than the certificate provided pursuant to Section 2.4) 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;
4
<PAGE> 8
(c) a statement that each 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
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, 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 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 any premium and interest
on (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)
all Debt of the Guarantor, whether incurred on or prior to the date of
this Guarantee Agreement 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 Notes or this Guarantee Agreement or to other
Debt which is pari passu with, or subordinated to, the Notes or this
Guarantee Agreement; provided, that Senior Debt shall not be deemed to
include (i) any Notes, (ii) any Debt of the Guarantor which when
incurred and without respect to any election under Section 1111(b) of
the United States Bankruptcy Code, as amended, was without recourse to
the Guarantor, (iii) any Debt of the Guarantor to any of its
subsidiaries which are not "banks" as defined in the Bank Holding
Company Act of 1956, as amended, (iv) any Debt to any employee of the
Guarantor and (v) any other debt securities issued pursuant to the
Junior Subordinated Indenture dated February 5, 1999 with First
Tennessee Bank, N.A., as trustee, and any guarantee issued in connection
therewith, which Debt described in this subparagraph (v) is pari passu
with the Notes and this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
5
<PAGE> 9
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.
ARTICLE II
REPORTS
SECTION 2.1. List of Holders.
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 (the "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 is not
identical to a previously supplied list of Holders or 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.
SECTION 2.2. Periodic Reports to the Guarantee Trustee.
The Guarantor shall deliver to the Guarantee Trustee, within 120
days after the end of each fiscal year of the Guarantor ending after the
date of this Guarantee Agreement, an Officers' Certificate covering the
preceding fiscal year, stating whether or not to the knowledge of the
signers thereof the Guarantor is in default in the performance or
observance of any of the terms, provisions and conditions of this
Guarantee Agreement (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Guarantor shall be
in default, specifying all such defaults and the nature and status
thereof of which they have knowledge.
SECTION 2.3. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 2.4. Event of Default; Notice.
6
<PAGE> 10
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of a default, transmit to the Holders, notices of all
defaults actually known to the Guarantee Trustee, unless such defaults
have been cured or waived before the giving of such notice, provided,
that except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding 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. For the purpose of this
Section, the term "default" means any event that is, or after notice or
lapse of time or both would become, an Event of Default.
(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 from the Guarantor or a Holder.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder
exercising its rights pursuant to Section 5.4(iv) or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee Trustee of
its appointment to act as Successor Guarantee Trustee. The right, title
and interest of the Guarantee Trustee 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) The rights, immunities, duties and responsibilities of the
Guarantee Trustee shall be as provided by this Guarantee Agreement and
there shall be no other duties or obligations, express or implied, of
the Guarantee Trustee. Notwithstanding the foregoing, no provisions of
this Guarantee Agreement shall require the Guarantee Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not herein
expressly so provided, every provision of this Guarantee Agreement
relating to the conduct or affecting the liability of or affording
protection to the Guarantee Trustee shall be subject to the provisions
of this Section 3.1. To the extent that, at law or in equity, the
Guarantee Trustee has duties and
7
<PAGE> 11
liabilities relating to the Guarantor or the Holders, the Guarantee
Trustee shall not be liable to any Holder for the Guarantee Trustee's
good faith reliance on the provisions of this Guarantee Agreement. The
provisions of this Guarantee Agreement, to the extent that they restrict
the duties and liabilities of the Guarantee Trustee otherwise existing
at law or in equity, are agreed by the Guarantor and the Holders to
replace such other duties and liabilities of the Guarantee Trustee.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent
action, negligent failure to act or own willful misconduct, except that:
(i) 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; and
(ii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Securities relating
to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee
Agreement.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, 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) the Guarantee Trustee may consult with counsel, and
the advice of such counsel 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 reliance thereon
and in accordance with such advice. Such counsel may be counsel to
the Guarantee Trustee, 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
8
<PAGE> 12
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction;
(iv) 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 reasonable security or indemnity
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
3.2(a)(iv) 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;
(v) 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, and if the Guarantee Trustee shall
determine to make such inquiry or investigation, it shall be entitled to
examine the books, record, and premises of the Guarantor, personally or
by agent or attorney;
(vi) 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, attorneys, custodians or nominees and the Guarantee
Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent, attorney, custodian or nominee appointed with
due care by it hereunder;
(vii) 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 a Majority in Liquidation Amount of the Preferred 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.
(viii) except as otherwise expressly provided by this Guarantee
Agreement, the Guarantee Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Guarantee Agreement; and
(ix) 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
9
<PAGE> 13
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;
(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.
The Guarantor agrees to pay to the Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provisions of law in regard to the
compensation of a trustee of an express trust) and to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
(including the reasonable fees and expenses of its attorneys and agents)
incurred or made by the Guarantee Trustee in accordance with any provisions of
this Guarantee Agreement.
SECTION 3.4. Indemnity.
The Guarantor agrees to indemnify and hold harmless the Guarantee
Trustee and any of its Affiliates and any of their officers, directors,
shareholders, employees, representatives or agents from and against any loss,
damage, liability, tax (other than income, franchise or other taxes imposed on
amounts paid pursuant to Section 3.3), penalty, expense or claim of any kind or
nature whatsoever incurred without negligence, bad faith or willful misconduct
on its part, 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.
SECTION 3.5. May Hold Securities.
The Guarantee Trustee or any other agent of the Guarantee Trustee, in
its individual or any other capacity, may become the owner or pledgee of Common
or Preferred Securities.
10
<PAGE> 14
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 corporation organized and doing business under the laws
of the United States or of any State thereof, authorized to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by Federal or
State authority and having an office within the United States. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or examining
authority, then, for the purposes of this Section 4.1, 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).
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed 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 instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor
11
<PAGE> 15
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 5.1. 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), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantor shall give prompt
written notice to the Guarantee Trustee in the event it makes any direct payment
to the Holders hereunder.
SECTION 5.2. 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, 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 5.3. 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 of any express or implied
agreement, covenant, term or condition relating to the Preferred
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 Notes as provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums
12
<PAGE> 16
payable under the terms of the Preferred Securities or the extension of
time for the performance of any other obligation under, arising out of,
or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, 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 Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, 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 Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
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.
13
<PAGE> 17
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) or upon distribution of Notes to Holders as provided in the Trust
Agreement.
SECTION 5.6. 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 5.1; provided, 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 with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Dividends, Distributions and Payments.
So long as any Preferred Securities remain outstanding, if there shall
have occurred and be continuing an Event of Default or the Guarantor shall have
selected an Extension Period as provided for in the Indenture, then the
Guarantor may not (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make liquidation payment with respect to, any of
the Guarantor's capital stock or (b) make any payment of principal of or any
interest or premium on or repay, repurchase or redeem any debt securities of the
Guarantor that rank pari passu in all respects with or junior in interest to the
Preferred Securities (other than (i) repurchases, redemptions or other
acquisitions of shares of capital
14
<PAGE> 18
stock of the Guarantor in connection with any employment contract, benefit plan
or other similar arrangement with or for the benefit of any one of more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the
issuance of capital stock of the Guarantor (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (ii) as a
result of an exchange or conversion of any class or series of the Guarantor's
capital stock (or any capital stock of a subsidiary of the Guarantor) for any
class or series of the Guarantor's capital stock or any class of series of the
Guarantor's indebtedness for any class or series of the Guarantor's capital
stock, (iii) the purchase of fractional interests in shares of the Guarantor's
capital stock pursuant to the conversions or exchange provisions of such capital
stock or the security being converted or exchanged, (iv) any declaration of a
dividend in connection with any rights plan, the issuance of rights, stock or
other property under any rights plan or the redemption or repurchase of rights
pursuant thereto, or (v) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock).
SECTION 6.2. 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.
SECTION 6.3. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with the obligations of the Guarantor under any similar
guarantee agreements issued by the Guarantor on behalf of the holders of
preferred securities issued by the Trust (as defined in the Indenture).
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (a) full payment of the Redemption Price of all Preferred
Securities, (b) the distribution of Notes to the Holders in exchange for all of
the Preferred 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
15
<PAGE> 19
sums paid with respect to Preferred Securities or this Guarantee Agreement. The
obligations of the Guarantor under Section 3.3 and 3.4 shall survive any such
termination and the resignation or removal of the Guarantee Trustee.
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 Preferred
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.
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 Guarantor, the Guarantee Trustee and the Holders of not
less than a Majority in Liquidation Amount of the Preferred Securities. The
provisions of Article VI of the Trust Agreement concerning meetings or consents
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 facsimile number
set forth below or such other address, facsimile number or to the
attention of such other Person as the Guarantor may give notice to the
Guarantee Trustee and the Holders:
VIB CORP
1498 Main Street
El Centro, CA 92243
Facsimile No.: (760) 337-3229
Attention: Harry G. Gooding
16
<PAGE> 20
(b) if given to the Issuer, at the Issuer's address or facsimile
number set forth below or such other address, facsimile number or to the
attention of such other Person as the Issuer may give notice to the
Guarantee Trustee and the Holders:
VIBC Capital Trust I
1498 Main Street
El Centro, CA 92243
Facsimile No.: (760) 337-3229
Attention: Harry G. Gooding
(c) if given to the Guarantee Trustee, at the address or facsimile
number set forth below or such other address, facsimile number or to the
attention of such other Person as the Guarantee Trustee may give notice
to the Guarantor and the Holders:
First Union National Bank
401 S. Tryon Street, 12th Floor
Charlotte, North Carolina 28288-1179
Facsimile No.: (704) 383-7316
Attention: Corporate Trust
(d) if given to any Holder, 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 document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Preferred Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
17
<PAGE> 21
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.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
18
<PAGE> 22
IN WITNESS WHEREOF, the undersigned have executed this Guarantee
Agreement as of the date first above written.
VIB CORP
By:
------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
not in its individual capacity, but
solely as Guarantee Trustee
By:
------------------------------------
Name:
Title:
19
