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EXHIBIT 4.8
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
February 5, 1999, between VIB CORP, a California corporation ("VIBC"), and
VALLEY CAPITAL TRUST, a Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive Junior Subordinated Deferrable Interest Debentures
(the "Debentures") from, VIBC and to issue and sell Valley Capital Trust 9.00%
Cumulative Trust Preferred Securities (the "Capital Securities") with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Trust dated as of February 5, 1999,
as the same may be amended from time to time (the "Trust Agreement"); and
WHEREAS, VIBC shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Capital Securities, which purchase VIBC hereby agrees shall benefit VIBC and
which purchase VIBC acknowledges shall be made in reliance upon the execution
and delivery of this Agreement, VIBC, including in its capacity as holder of the
Common Securities, and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY VIBC.
Subject to the terms and conditions hereof, VIBC, including in its
capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of
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the Trust to pay to holders of any Capital Securities or other similar interests
in the Trust the amounts due such holders pursuant to the terms of the Capital
Securities or such other similar interests, as the case may be. This Agreement
is intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Capital Securities (whether upon redemption,
liquidation, exchange or otherwise); and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Capital Securities or any Beneficiary must restore payment of any sums
paid under the Capital Securities, under any obligation, under the Guarantee
Agreement dated the date hereof by VIBC and Wilmington Trust Company, a Delaware
banking corporation, as guarantee trustee, or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute; and VIBC unconditionally waives any right to revoke the guarantee
under Section 2815 of the California Civil Code or otherwise.
SECTION 1.3. WAIVER OF NOTICE.
VIBC hereby waives notice of acceptance of this Agreement and of any
obligation to which it applies or may apply, and VIBC hereby waives presentment,
demand for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of VIBC under this
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 extension of time for the payment by the Trust of all or
any portion of the obligations or for the performance of any other
obligation under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence
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on the part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect to
the obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, VIBC with respect to the happening of any of the
foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against VIBC, and VIBC
waives any right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against VIBC.
SECTION 1.6. SUBROGATION.
VIBC shall be subrogated to all (if any) rights of the Trust in respect of
any amounts paid to the Beneficiaries by VIBC under this Agreement; provided,
however, that VIBC 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 Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of VIBC and shall
inure to the benefit of the Beneficiaries.
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SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Capital Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Capital Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answerback, if sent by telex):
Valley Capital Trust
c/o VIB CORP
0000 Xxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
VIB CORP
0000 Xxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
SECTION 2.4. This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of California (without
regard to conflict of laws principles).
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THIS AGREEMENT is executed as of the day and year first above written.
VIB CORP
By: /S/ XXXXXX X. XXXX
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Its: President
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VALLEY CAPITAL TRUST
By: /s/ Xxxxx X. XXXXXXX, III
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Its: Administrative Trustee
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