EXHIBIT 4.2
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
MOUNTAINBANK FINANCIAL CORPORATION AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
EFFECTIVE AS OF JUNE 27, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION...............................................................1
Section 1.1 Definitions and Interpretation....................................................1
ARTICLE II TRUST INDENTURE ACT..........................................................................5
Section 2.1 Indenture Act; Application........................................................5
Section 2.2 Lists of Holders of Securities....................................................5
Section 2.3 Reports by the Trust Preferred Guarantee Trustee..................................5
Section 2.4 Reports to Trust Preferred Guarantee Trustee......................................6
Section 2.5 Evidence of Compliance with Conditions Precedent..................................6
Section 2.6 Event of Default; Waiver..........................................................6
Section 2.7 Event of Default; Notice..........................................................6
Section 2.8 Conflicting Interests.............................................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE...............................7
Section 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee........................7
Section 3.2 Certain Rights of Trust Preferred Guarantee Trustee...............................9
Section 3.3 Not Responsible for Recitals or Issuance of Guarantee............................11
ARTICLE IV TRUST PREFERRED GUARANTEE TRUSTEE...........................................................11
Section 4.1 Trust Preferred Guarantee Trustee; Eligibility...................................11
Section 4.2 Appointment, Removal and Resignation of Trust Preferred Guarantee Trustees.......12
ARTICLE V GUARANTEE...................................................................................13
Section 5.1 Guarantee........................................................................13
Section 5.2 Waiver of Notice and Demand......................................................13
Section 5.3 Obligations not Affected.........................................................13
Section 5.4 Rights of Holders................................................................14
Section 5.5 Guarantee of Payment.............................................................14
Section 5.6 Subrogation......................................................................14
Section 5.7 Independent Obligations..........................................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION...................................................15
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.1 Limitation of Transactions.......................................................15
Section 6.2 Ranking..........................................................................16
ARTICLE VII TERMINATION.................................................................................16
Section 7.1 Termination......................................................................16
ARTICLE VIII INDEMNIFICATION.............................................................................16
Section 8.1 Exculpation......................................................................16
Section 8.2 Indemnification..................................................................17
ARTICLE IX MISCELLANEOUS...............................................................................17
Section 9.1 Successors and Assigns...........................................................17
Section 9.2 Amendments.......................................................................17
Section 9.3 Notices..........................................................................18
Section 9.4 Benefit..........................................................................18
Section 9.5 Governing Law....................................................................18
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Trust Preferred
Securities Guarantee"), effective as of June 27, 2002, is executed and delivered
by Mountainbank Financial Corporation, a North Carolina corporation (the
"Guarantor"), and Xxxxx Fargo Bank, National Association, as trustee (the "Trust
Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Trust Preferred Securities (as defined herein)
of Mountainbank Capital Trust I, a Delaware statutory business trust (the
"Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), effective as of June 27, 2002, among the trustees of the Trust
named therein, the Guarantor, as depositor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
on the date hereof up to Twenty Thousand (20,000) preferred securities, having
an aggregate liquidation amount of Twenty Million Dollars ($20,000,000), and
such preferred securities being designated the Floating Rate Cumulative Trust
Preferred Securities (the "Trust Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Preferred Securities Guarantee, to pay to the
Holders of the Trust 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 Trust
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Trust Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION.
In this Trust Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used herein but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) terms defined in the Trust Agreement as of the date of
execution of this Trust Preferred Securities Guarantee have the same
meaning when used in this Trust Preferred Securities Guarantee, unless
otherwise defined in this Trust Preferred Securities Guarantee;
(c) a term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Trust Preferred Securities Guarantee"
or "this Trust Preferred Securities Guarantee" are to this Trust Preferred
Securities Guarantee as modified, supplemented or amended from time to
time;
(e) all references in this Trust Preferred Securities Guarantee
to Articles and Sections are to Articles and Sections of this Trust
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act (as defined below)
has the same meaning when used in this Trust Preferred Securities
Guarantee, unless otherwise defined in this Trust Preferred Securities
Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday, Sunday, a day on which
federal or state banking institutions in Hendersonville, North Carolina,
Wilmington, Delaware or Minneapolis, Minnesota are authorized or required by
law, executive order or regulation to close or a day on which the Corporate
Trust Office of the Trust Preferred Guarantee Trustee is closed for business.
"Corporate Trust Office" means the office of the Trust Preferred Guarantee
Trustee at which the corporate trust business of the Trust Preferred Guarantee
Trustee shall, at any particular time, be principally administered, which office
at the date of execution of this Agreement is located at 000 Xxxxxx Xxxxxx,
Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Trust Preferred
Securities.
"Debentures" means the Floating Rate Junior Subordinated Deferrable
Interest Debentures due June 30, 2032, of the Debenture Issuer held by the
Property Trustee (as defined in the Trust Agreement) on behalf of the Trust.
"Debenture Issuer" means Mountainbank Financial Corporation, issuer of the
Debentures under the Indenture.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Trust Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Trust Preferred Securities, to the extent not
paid or made by the Trust: (i) any accumulated and unpaid Distributions (as
defined in the Trust Agreement) that are required to be paid on such Trust
Preferred Securities, to the extent the Trust shall have funds
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legally available therefor, (ii) the redemption price, including all accumulated
and unpaid Distributions to the date of redemption (the "Redemption Price"), to
the extent the Trust has funds legally available therefor, with respect to any
Trust Preferred Securities called for redemption by the Trust, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Debentures to the Holders in
exchange for Trust Preferred Securities as provided in the Trust Agreement), the
lesser of (a) the aggregate of the liquidation amount and all accumulated and
unpaid Distributions on the Trust Preferred Securities to the date of payment,
to the extent the Trust shall have funds legally available therefor, and (b) the
amount of assets of the Trust remaining legally available for distribution to
Holders in liquidation of the Trust (the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records of
the Trust, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or the Trust Preferred Guarantee Trustee;
provided, further, that the Trust Preferred Guarantee Trustee shall be protected
in acting on any such request, notice, consent or waiver unless a Responsible
Officer of the Trust Preferred Guarantee Trustee shall have actual knowledge
that the holder of such Trust Preferred Securities is the Guarantor.
"Indemnified Person" means the Trust Preferred Guarantee Trustee, any
Affiliate of the Trust Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Trust Preferred Guarantee Trustee.
"Indenture" means the Indenture effective as of June 27, 2002, among the
Debenture Issuer and Xxxxx Fargo Bank, National Association, as trustee, and any
indenture supplemental thereto pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Property Trustee on
behalf of the Trust.
"Liquidation Amount" means the stated value of $1,000 per Trust Preferred
Security.
"Liquidation Distribution" has the meaning provided therefor in the
definition of Guarantee Payments.
"List of Holders" has the meaning provided therefor in Section 2.2(a)
hereof.
"Majority in Liquidation Amount of the Trust Preferred Securities" means
the Holders of more than 50% of the Liquidation Amount of the Outstanding (as
defined in the Trust Agreement) Trust Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two authorized officers of such Person, at least one of whom shall be
the principal executive officer, principal financial officer, principal
accounting officer, treasurer or any vice president of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Preferred Securities Guarantee shall
include:
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(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Redemption Price" has the meaning provided therefor in the definition of
Guarantee Payments.
"Responsible Officer" means, with respect to the Trust Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Trust Preferred
Guarantee Trustee with direct responsibility for the administration of this
Trust Preferred Securities Guarantee, including any vice-president, any
assistant vice-president, any assistant secretary or other officer or assistant
officer of the Trust Preferred Guarantee Trustee customarily performing
functions similar to those performed by any of the Persons who at the time shall
be such officers, or to whom a corporate trust matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the meanings provided
for each in the Trust Agreement.
"Successor Trust Preferred Guarantee Trustee" means a successor Trust
Preferred Guarantee Trustee possessing the qualifications to act as Trust
Preferred Guarantee Trustee under Section 4.1 hereof.
"Trust Agreement" has the meaning provided therefor in the Recitals hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any
successor statute thereto, in each case as amended from time to time.
"Trust Preferred Guarantee Trustee" means Xxxxx Fargo Bank, National
Association, in its capacity as trustee under this Trust Preferred Securities
Guarantee until a Successor Trust Preferred Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Trust Preferred
Securities Guarantee and thereafter means each such Successor Trust Preferred
Guarantee Trustee.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 INDENTURE ACT; APPLICATION.
(a) Unless and until the Indenture is required to be qualified
under the Trust Indenture Act so that the provisions thereof are applicable
(i) the provisions of the Trust Indenture Act do not apply to this Trust
Preferred Securities Guarantee and are not given effect; and (ii)
notwithstanding any other provision set forth herein, the Trust Preferred
Guarantee Trustee shall not be liable for its own simple negligence, but
shall only be liable for its own gross negligence.
(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust Indenture
Act, and the Indenture is then required to be qualified under the Trust
Indenture Act so that the provisions thereof are applicable, such imposed
duties shall control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) In the event the Trust Preferred Guarantee Trustee is not
also the Securities Registrar, the Guarantor shall provide the Trust
Preferred Guarantee Trustee with a list, in such form as the Trust
Preferred Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of the date (i) within five
(5) Business Days after March 15, June 15, September 15 and December 15,
and (ii) at any other time within 30 days of receipt by the Guarantor of a
written request for a List of Holders as of a date no more than 15 days
before such List of Holders is given to the Trust Preferred Guarantee
Trustee; provided, that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from
the most recent List of Holders given to the Trust Preferred Guarantee
Trustee by the Guarantor. The Trust Preferred Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of
Holders.
(b) If applicable, the Trust Preferred Guarantee Trustee shall
comply with its obligations under Sections 311(a), 311(b) and Section
312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE TRUST PREFERRED GUARANTEE TRUSTEE.
(a) On or before July 15 in each year in which any of the Trust
Preferred Securities are Outstanding, the Trust Preferred Guarantee Trustee
shall transmit by mail, first class postage prepaid, to the Holders, as
their names and addresses appear upon the Securities Register, a brief
report dated as of the preceding May 15, if and to the extent required
under Section 313(a) of the Trust Indenture Act, if applicable (it being
understood that no such report shall be required if none of the events set
forth in Section 313(a) of the Trust Indenture Act has occurred during the
period to which such report would relate).
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(b) The Trust Preferred Guarantee shall comply with Sections
313(b) and 313(c) of the Trust Indenture Act, if applicable.
(c) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trust Preferred Guarantee
Trustee with the Company, with each stock exchange or applicable
self-regulatory organization upon which any Trust Preferred Securities are
listed (if so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trust Preferred Guarantee Trustee when any
Trust Preferred Securities become listed on any stock exchange or other
applicable self-regulatory organization.
SECTION 2.4 REPORTS TO TRUST PREFERRED GUARANTEE TRUSTEE.
If applicable, the Guarantor shall provide to the Trust Preferred Guarantee
Trustee such documents, reports and information as required by Section 314 (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.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
If applicable, the Guarantor shall provide to the Trust Preferred Guarantee
Trustee such evidence of compliance with any conditions precedent provided for
in this Trust Preferred Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) of the
Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6 EVENT OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Trust Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 EVENT OF DEFAULT; NOTICE.
The Trust Preferred Guarantee Trustee shall, within ninety (90) days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Trust Preferred Securities, notices of all Events
of Default actually known to a Responsible Officer of the Trust Preferred
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice; provided, that, except in the case of a default by Guarantor on any
of its payment obligations, the Trust Preferred 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 the directors and/or Responsible
Officers of the Trust Preferred Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the Trust
Preferred Securities.
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The Trust Preferred Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Trust Preferred Guarantee Trustee shall have
received written notice of such Event of Default, or a Responsible Officer of
the Trust Preferred Guarantee Trustee charged with the administration of the
Trust Agreement shall have obtained actual knowledge of such Event of Default.
SECTION 2.8 CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described in this
Trust Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act, if applicable.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE TRUST PREFERRED GUARANTEE TRUSTEE.
(a) This Trust Preferred Securities Guarantee shall be held by
the Trust Preferred Guarantee Trustee for the benefit of the Holders of the
Trust Preferred Securities, and the Trust Preferred Guarantee Trustee shall
not transfer this Trust Preferred Securities Guarantee to any Person except
a Holder of Trust Preferred Securities exercising his or her rights
pursuant to Section 5.4(b) hereof or to a Successor Trust Preferred
Guarantee Trustee on acceptance by such Successor Trust Preferred Guarantee
Trustee of its appointment to act as Successor Trust Preferred Guarantee
Trustee. The right, title and interest of the Trust Preferred Guarantee
Trustee shall automatically vest in any Successor Trust Preferred Guarantee
Trustee, and such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Trust Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee has occurred and is
continuing, the Trust Preferred Guarantee Trustee shall enforce this Trust
Preferred Securities Guarantee for the benefit of the Holders of the Trust
Preferred Securities.
(c) The Trust Preferred 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 Trust Preferred Securities Guarantee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6 hereof) and is actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee, the Trust Preferred
Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Trust Preferred Securities Guarantee, and use the same degree of
care and skill in its exercise thereof, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs. No
implied covenants shall be read into the Trust Preferred Securities
Guarantee against the Trust Preferred Guarantee Trustee.
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(d) No provision of this Trust Preferred Securities Guarantee
shall be construed to relieve the Trust Preferred 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 Trust Preferred
Guarantee Trustee shall be determined solely by the
express provisions of this Trust Preferred Securities
Guarantee, and the Trust Preferred Guarantee Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in
this Trust Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into
this Trust Preferred Securities Guarantee against the
Trust Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Trust
Preferred Guarantee Trustee, the Trust Preferred
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 Trust Preferred Guarantee
Trustee and conforming to the requirements of this
Trust Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Trust Preferred Guarantee Trustee, the
Trust Preferred Guarantee Trustee shall be under a duty
to examine the same to determine in good faith whether
or not they conform to the requirements of this Trust
Preferred Securities Guarantee;
(ii) the Trust Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Trust Preferred Guarantee
Trustee, unless it shall be proved that the Trust Preferred
Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Trust Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the
Holders of not less than a Majority in Liquidation Amount of
the Trust Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trust Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the Trust
Preferred Guarantee Trustee under this Trust Preferred
Securities Guarantee; and
(iv) no provision of this Trust Preferred Securities Guarantee
shall require the Trust Preferred Guarantee Trustee to
expend or risk its own funds or
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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 Trust Preferred Guarantee
Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Preferred
Securities Guarantee or indemnity, reasonably satisfactory
to the Trust Preferred Guarantee Trustee, against such risk
or liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1(d) hereof:
(i) The Trust Preferred 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
Trust Preferred Securities Guarantee shall be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Trust Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Trust Preferred Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Trust Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (or any rerecording, refiling or reregistration
thereof).
(v) The Trust Preferred Guarantee Trustee may consult with
counsel, and the written advice or opinion of such counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Trust Preferred Guarantee
Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust
Preferred Securities Guarantee from any court of competent
jurisdiction.
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(vi) The Trust Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Trust Preferred Securities Guarantee at the
request or direction of any Holder, unless such Holder shall
have provided to the Trust Preferred Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Trust
Preferred Guarantee Trustee, against the costs, expenses
(including reasonable attorneys' fees and expenses and the
expenses of the Trust Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by
the Trust Preferred Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall be taken
to relieve the Trust Preferred Guarantee Trustee, upon the
occurrence and during the continuance of an Event of
Default, of which the Trust Preferred Guarantee has actual
knowledge, of its obligation to exercise the rights and
powers vested in it by this Trust Preferred Securities
Guarantee.
(vii) The Trust Preferred 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 Trust Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Trust Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees,
custodians or attorneys, and the Trust Preferred Guarantee
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Trust Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Trust
Preferred Securities, and the signature of the Trust
Preferred Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No
third party shall be required to inquire as to the authority
of the Trust Preferred Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this
Trust Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Trust Preferred Guarantee
Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Trust Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action
hereunder, the Trust Preferred Guarantee Trustee (i) may
request instructions from the Holders of a Majority in
Liquidation
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Amount of the Trust Preferred Securities, (ii) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall
be protected in conclusively relying on or acting in good
faith in accordance with such instructions.
(b) No provision of this Trust Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Trust Preferred
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 Trust Preferred 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 Trust
Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee shall be taken as the statements
of the Guarantor, and the Trust Preferred Guarantee Trustee does not assume any
responsibility for their correctness. The Trust Preferred Guarantee Trustee
makes no representation as to the validity or sufficiency of this Trust
Preferred Securities Guarantee.
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 TRUST PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Trust Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be an entity organized and doing business under the laws of
the United States of America or any State or Territory
thereof or of the District of Columbia, or a Person
permitted by the Securities and Exchange Commission to act
as a resident trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by
applicable federal, state, territorial or District of
Columbia authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority
referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so
published.
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(b) If at any time the Trust Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Trust Preferred
Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act and the provisions of the Trust Indenture Act are
then applicable, the Trust Preferred Guarantee Trustee and Guarantor shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUST PREFERRED
GUARANTEE TRUSTEES.
(a) Subject to Section 4.2(b), the Trust Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor.
(b) The Trust Preferred Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Trust Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Trust Preferred Guarantee
Trustee and delivered to the Guarantor and the Trust Preferred Guarantee
Trustee.
(c) The Trust Preferred Guarantee Trustee appointed to office
shall hold office until a Successor Trust Preferred Guarantee Trustee shall
have been appointed or until its removal or resignation. The Trust
Preferred Guarantee Trustee may at any time resign from office (without
need for prior or subsequent accounting) by an instrument in writing
executed by the Trust Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Trust
Preferred Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Trust
Preferred Guarantee Trustee and delivered to the Guarantor and the
resigning Trust Preferred Guarantee Trustee.
(d) If no Successor Trust Preferred Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Trust Preferred Guarantee Trustee may petition
any court of competent jurisdiction for appointment of a Successor Trust
Preferred Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Trust
Preferred Guarantee Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Trust Preferred Guarantee
Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee or removal or resignation of the Trust Preferred Guarantee
Trustee pursuant to this Section 4.2, the Guarantor shall pay to the Trust
Preferred Guarantee Trustee all documented fees and expenses accrued to the
date of such termination, removal or resignation.
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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 the Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Trust Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor under
this Trust Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Trust
Preferred Securities or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the Trust
Preferred Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period on
the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Trust
Preferred Securities, or any action on the part of the Trust 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,
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reorganization, arrangement, composition or readjustment of debt of, or
other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) any failure or omission to receive any regulatory approval
or consent required in connection with the Trust Preferred Securities (or
the common equity securities issued by the Trust), including the failure to
receive any approval of the Board of Governors of the Federal Reserve
System required for the redemption of the Trust Preferred Securities;
(g) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(h) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) Subject to Section 5.4(b), the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities have the right to
direct the time, method and place of conducting of any proceeding for any
remedy available to the Trust Preferred Guarantee Trustee in respect of
this Trust Preferred Securities Guarantee or exercising any trust or power
conferred upon the Trust Preferred Guarantee Trustee under this Trust
Preferred Securities Guarantee.
(b) Any Holder of Trust Preferred Securities may institute and
prosecute a legal proceeding directly against the Guarantor to enforce its
rights under this Trust Preferred Securities Guarantee, without first
instituting and prosecuting a legal proceeding against the Trust, the Trust
Preferred Guarantee Trustee or any other Person.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Trust Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Trust in respect of any amounts paid to such Holders by the
Guarantor under this Trust Preferred Securities Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases
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as a result of payment under this Trust Preferred Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid under this Trust
Preferred Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Trust 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 Trust Preferred Securities
Guarantee notwithstanding the occurrence of any event referred to in subsections
(a) through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any of the Trust Preferred Securities remain outstanding, if
there shall have occurred an Event of Default under this Trust Preferred
Securities Guarantee, an event of default under the Indenture, an event of
default under the Trust Agreement or during an Extended Interest Payment Period
(as defined in the Indenture), then
(a) the Guarantor shall not, and will not permit any Subsidiary
to, declare or pay any dividends on, make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect
to, any of its capital stock (other than (1) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase
shares of, common stock of the Guarantor or such Subsidiary, (2) any
declaration of a dividend in connection with the implementation of a
shareholder's rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, (3) purchases of common stock of the Guarantor related to the
issuance of such common stock under any of the Guarantor's employee benefit
plans for its directors, officers or employees, (4) as a result of a
reclassification of any class or series of the Guarantor's capital stock
solely into another class or series of the Guarantor's capital stock, or
(5) declarations or payments of dividends or distributions payable by a
Subsidiary of the Guarantor to the Guarantor or any of its Subsidiaries);
(b) the Guarantor shall not, and will not permit any Subsidiary
to, make any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Guarantor which rank
pari passu with or junior to the Debentures;
(c) the Guarantor shall not make any guarantee payments with
respect to any guarantee by the Guarantor of the debt securities of any
Subsidiary of the Guarantor if such guarantee ranks pari passu with or
junior in interest to the Debentures; provided,
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however, that the Guarantor may make payments pursuant to its obligations
under the Trust Preferred Securities Guarantee; and
(d) the Guarantor shall not redeem, purchase or acquire less
than all of the Outstanding (as defined in the Indenture) Debentures or any
of the Trust Preferred Securities.
SECTION 6.2 RANKING.
This Trust Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right of
payment to all Senior Debt, Subordinated Debt and Additional Senior Obligations,
each as defined in the Indenture, of the Guarantor, to the extent and in the
manner set forth in the Indenture, and the applicable provisions of the
Indenture will apply, in all relevant respects, to the obligations of the
Guarantor hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION.
This Trust Preferred Securities Guarantee shall terminate (a) upon full
payment of the Redemption Price of all Trust Preferred Securities, (b) upon full
payment of the amounts payable in accordance with the Trust Agreement upon
dissolution and liquidation of the Trust, or (c) upon distribution of the
Debentures to the Holders of the Trust Preferred Securities. Notwithstanding the
foregoing, this Trust Preferred Securities Guarantee shall continue to be
effective or shall be reinstated, as the case may be, if at any time any Holder
of Trust Preferred Securities must restore payment of any sums paid under the
Trust Preferred Securities or under this Trust Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Trust Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Trust Preferred
Securities Guarantee or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
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(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor or the
Indemnified Person by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or expert
competence and who the Indemnified Person reasonably believes has been
selected with reasonable care by or on behalf of the Guarantor, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which Distributions to Holders of
Trust Preferred Securities might properly be paid.
SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or willful misconduct on its part, arising out of or
in connection with this Trust Preferred Securities Guarantee and the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except as may
be otherwise prohibited by applicable law or regulation. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Trust Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Trust Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Trust Preferred Securities then outstanding.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Trust Preferred Securities Guarantee may only be amended by the Guarantor
with the prior approval of the Holders of at least a Majority in Liquidation
Amount of the Trust Preferred Securities. The provisions of Article VI of the
Trust Agreement with respect to meetings of Holders apply to the giving of such
approval. Prior to the execution of any amendment to this Trust Preferred
Securities Guarantee, the Trust Preferred Guarantee Trustee shall be entitled to
receive and conclusively rely on an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Trust Preferred
Securities Guarantee and that all conditions precedent to such execution and
delivery have been satisfied. The Trust Preferred Guarantee Trustee may, but
shall not be obligated to, enter into any such amendment which affects the Trust
Preferred Guarantee Trustee's rights, duties or immunities under this Trust
Preferred Securities Guarantee,
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provided, however, that no such amendment shall be effective without the consent
of the Trust Preferred Guarantee Trustee.
SECTION 9.3 NOTICES.
All notices provided for in this Trust Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Trust Preferred Guarantee Trustee, at the
Trust Preferred Guarantee Trustee's mailing address set forth below (or
such other address as the Trust Preferred Guarantee Trustee may give notice
of to the Holders of the Trust Preferred Securities and the Guarantor):
Xxxxx Fargo Bank, National Association
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give
notice of to the Holders of the Trust Preferred Securities and the Trust
Preferred Guarantee Trustee):
Mountainbank Financial Corporation
000 Xxxx Xxxxx
Xxxxxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
(c) If given to any Holder of Trust Preferred Securities, at the
address set forth on the books and records of the Trust. All such notices
shall be deemed to have been given when received in person, telecopied with
receipt confirmed, or mailed by first class mail, postage prepaid except
that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Trust Preferred Securities Guarantee is solely for the benefit of the
Holders of the Trust Preferred Securities and the Trust Preferred Guarantee
Trustee and, subject to Section 3.1(a) and Section 4.2 hereof, as applicable is
not separately transferable from the Trust Preferred Securities.
SECTION 9.5 GOVERNING LAW.
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THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. ANY ACTION OR PROCEEDING ARISING
OUT OF THIS GUARANTEE, AS SUPPLEMENTED OR AMENDED, IN ANY WAY SHALL BE BROUGHT
AND ENFORCED EXCLUSIVELY IN THE APPLICABLE UNITED STATES DISTRICT COURT FOR THE
STATE OF NEW YORK, OR IN THE EVENT SUCH COURT LACKS JURISDICTION, IN XXX
XXXXXXXXXX XXX XXXX XXXXX XXXXXXXX XXXXX.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Trust Preferred Securities Guarantee is dated as
set forth below and effective as of June 27, 2002.
Mountainbank Financial Corporation, as
Guarantor
By: /s/ Xxxx Xxxxxx
------------------------------
Name: XXXX XXXXXX
----------------------------
Title: CFO
---------------------------
Date: 6/16/02
----------------------------
Xxxxx Fargo Bank, National Association, as
Trust Preferred Guarantee Trustee
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: XXXXXXX X. XXXX
----------------------------
Title: VICE PRESIDENT
---------------------------
Date: 6/16/02
----------------------------
[Signature Page to Trust Preferred Securities Guarantee Agreement]
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