Exhibit 10.2
GUARANTEE AGREEMENT
between
GREER BANCSHARES
INCORPORATED,
As Guarantor,
and
WILMINGTON TRUST COMPANY,
As Guarantee Trustee
Dated as of December 28,
2006
GREER CAPITAL TRUST II
TABLE OF CONTENTS
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ARTICLE
I
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INTERPRETATION
AND DEFINITIONS
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2
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SECTION
1.1
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Interpretation
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2
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SECTION
1.2
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Definitions
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2
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ARTICLE
II
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REPORTS
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6
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SECTION
2.1
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List of
Holders
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6
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SECTION
2.2
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Periodic
Reports to the Guarantee Trustee
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6
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SECTION
2.3
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Event of
Default; Waiver
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6
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SECTION
2.4
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Event of
Default; Notice
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7
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ARTICLE III
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POWERS, DUTIES
AND RIGHTS OF THE GUARANTEE TRUSTEE
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7
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SECTION
3.1
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Powers and
Duties of the Guarantee Trustee
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7
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SECTION
3.2
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Certain Rights
of the Guarantee Trustee
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8
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SECTION
3.3
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Compensation
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10
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SECTION
3.4
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Indemnity
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10
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SECTION
3.5
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Securities
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11
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ARTICLE
IV
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GUARANTEE
TRUSTEE
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11
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SECTION
4.1
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Guarantee
Trustee; Eligibility
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11
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SECTION
4.2
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Appointment,
Removal and Resignation of the Guarantee Trustee
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12
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ARTICLE
V
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GUARANTEE
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12
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SECTION
5.1
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Guarantee
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12
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SECTION
5.2
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Waiver of
Notice and Demand
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13
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SECTION
5.3
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Obligations Not
Affected
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13
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SECTION
5.4
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Rights of
Holders
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14
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SECTION
5.5
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Guarantee of
Payment
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14
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SECTION
5.6
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Subrogation
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14
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SECTION
5.7
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Independent
Obligations
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15
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SECTION
5.8
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Enforcement
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15
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ARTICLE
VI
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COVENANTS AND
SUBORDINATION
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15
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SECTION
6.1
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Dividends,
Distributions and Payments
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15
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SECTION
6.2
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Subordination
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16
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SECTION
6.3
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Pari Passu
Guarantees
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16
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ARTICLE
VII
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TERMINATION
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17
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SECTION
7.1
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Termination
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17
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ARTICLE VIII
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MISCELLANEOUS
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17
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SECTION
8.1
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Successors and
Assigns
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17
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SECTION
8.2
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Amendments
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17
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i
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SECTION
8.3
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Notices
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17
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SECTION
8.4
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Benefit
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19
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SECTION
8.5
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Governing
Law
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19
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SECTION
8.6
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Submission to
Jurisdiction
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19
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SECTION 8.7
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Counterparts;
Facsimile
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19
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ii
G UARANTEE A GREEMENT ,
dated as of December 28, 2006, executed and delivered by
G REER B ANCSHARES I NCORPORATED , a South Carolina corporation (the
“Guarantor” ) having its principal office at
1111 W. Poinsett Street, Greer, South Carolina 29652, and W
ILMINGTON T RUST C OMPANY , a
Delaware banking corporation, 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 Greer Capital Trust II, a
Delaware statutory trust (the “Issuer”
).
W I T
N E S
S E T
H :
W HEREAS ,
pursuant to an Amended and Restated Trust Agreement, dated as of
the date hereof (the “Trust Agreement” ), among
the Guarantor, as Depositor, the Property Trustee, the Delaware
Trustee and the Administrative Trustees named therein and the
holders from time to time of the Preferred Securities (as
hereinafter defined), the Issuer is issuing $5,000,000 aggregate
Liquidation Amount (as defined in the Trust Agreement) of its
Floating Rate 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;
W HEREAS ,
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; and
W HEREAS , 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.
N OW ,
T HEREFORE , 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:
1
ARTICLE I
I NTERPRETATION AND D EFINITIONS
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.
“Beneficiaries”
means any Person to whom the Issuer
is or hereafter becomes indebted or liable.
2
“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 thirty (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 (as defined in the Trust Agreement) with respect
to any Preferred Securities 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, 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
3
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
Wilmington Trust Company in its capacity as trustee hereunder,
until a Successor Guarantee Trustee, as defined below, 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 the date hereof, as supplemented and amended, between the
Guarantor and Wilmington Trust Company, 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 fifty percent (50%) of the aggregate
Liquidation Amount of all then outstanding Preferred Securities
issued by the Issuer.
“Obligations”
means any costs, expenses or
liabilities (but not including liabilities related to taxes) of the
Issuer, other than obligations of the Issuer to pay to holders of
any Trust Securities the amounts due such holders pursuant to the
terms of the Trust Securities.
“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
(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 Financial Services Officer or Assistant Financial Services
Officer or any other officer in the Corporate Trust Office of the
Guarantee Trustee with direct responsibility for the administration
of this Guarantee Agreement 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
the Indenture or thereafter incurred, unless it is provided in the
instrument creating or evidencing the same or pursuant to which the
same is outstanding, that such obligations are not superior in
right of payment to the Preferred Securities; provided,
however , that if the Guarantor is subject to the regulation
and supervision of an “appropriate Federal banking
agency” within the meaning of 12 U.S.C. 1813(q), the
Guarantor shall have received the approval of such appropriate
Federal banking agency prior to issuing any such obligation if not
otherwise generally approved; provided further , that Senior
Debt shall not include any other debt securities, and guarantees in
respect of such debt securities, issued to any trust other than the
Issuer (or a trustee of such trust), partnership or other entity
affiliated with the Guarantor that is a financing vehicle of the
Guarantor (a “financing entity”), in connection with
the issuance by such financing entity of equity securities or other
securities that are treated as equity capital for regulatory
capital purposes guaranteed by the Guarantor pursuant to an
instrument that ranks pari passu with or junior in right of
payment to this Guarantee Agreement, including, without limitation,
securities issued to Greer Capital Trust I.
“Successor Guarantee
Trustee” means a
successor Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1.
5
“Trust Indenture
Act” means the
Trust Indenture Act of 1939, as amended and as in effect on the
date of this Guarantee Agreement.
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
R EPORTS
SECTION 2.1 List of
Holders.
The Guarantor shall furnish or cause
to be furnished to the Guarantee Trustee at such times as the
Guarantee Trustee may request in writing, within thirty
(30) days after the receipt by the Guarantor of any such
request, 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
fifteen (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 one hundred and twenty (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 or provisions or any
of the 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 thereof, specifying all
such defaults and the nature and status thereof of which they have
knowledge.
SECTION 2.3 Event 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.
6
SECTION 2.4 Event of Default;
Notice.
(a) The Guarantee Trustee shall,
within ninety (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 determine that the
withholding of such notice is in the interests of the Holders. For
the purpose of this Section 2.4 , 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 default or 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 received written notice, of such
default or Event of Default from the Guarantor or a
Holder.
ARTICLE III
P OWERS ,
D UTIES A ND
R IGHTS O F
T HE G
UARANTEE T RUSTEE
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(d) or to a Successor Guarantee
Trustee upon 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 po