GUARANTEE AGREEMENT

 

TABLE OF CONTENTS

 

		Page
ARTICLE I DEFINITIONS AND INTERPRETATION
Section 1.1	Definitions and Interpretation	1
ARTICLE II TRUST INDENTURE ACT
Section 2.1	Trust Indenture Act; Application	3
Section 2.2	List of Holders	3
Section 2.3	Reports by Guarantee Trustee	4
Section 2.4	Reports to Guarantee Trustee	4
Section 2.5	Evidence of Compliance with Conditions Precedent	4
Section 2.6	Events of Default; Waiver	4
Section 2.7	Events of Default; Notice	4
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1	Powers and Duties of the Guarantee Trustee	5
Section 3.2	Certain Rights of the Guarantee Trustee	6
Section 3.3	Not Responsible for Recitals or Issuance of Guarantee	7
ARTICLE IV THE GUARANTEE TRUSTEE
Section 4.1	The Guarantee Trustee; Eligibility	7
Section 4.2	Appointment, Removal and Resignation of the Guarantee Trustee	7
ARTICLE V THE GUARANTEE
Section 5.1	Guarantee	8
Section 5.2	Waiver of Notice and Demand	8
Section 5.3	Obligations Not Affected	8
Section 5.4	Rights of Holders	9
Section 5.5	Guarantee of Payment	9
Section 5.6	Subrogation	9
Section 5.7	Independent Obligations	9
Section 5.8	Enforcement by a Beneficiary	9
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1	Limitation of Transactions	10
Section 6.2	Ranking	10
ARTICLE VII TERMINATION
Section 7.1	Termination	11
ARTICLE VIII INDEMNIFICATION
Section 8.1	Exculpation	11
Section 8.2	Indemnification	11
Section 8.3	Compensation; Reimbursement of Expenses	12
ARTICLE IX MISCELLANEOUS
Section 9.1	Successors and Assigns	12
Section 9.2	Amendments	12
Section 9.3	Notices	13
Section 9.4	Benefit	13
Section 9.5	Governing Law	13
Section 9.6	Counterparts	14

 

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GUARANTEE AGREEMENT

 

This GUARANTEE AGREEMENT (the “Guarantee”), dated as of September 24, 2008, is executed and delivered by Virginia Commerce Bancorp, Inc., a bank holding company incorporated in the State of Virginia (the “Guarantor”), and Wilmington Trust Company, a Delaware banking corporation, as trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined herein) from time to time of the Preferred Securities (as defined herein) of VCBI Capital Trust IV, a Delaware statutory trust (the “Issuer”).

 

WHEREAS , pursuant to an Amended and Restated Declaration of Trust (the “Declaration”), dated as of the date hereof, among the trustees named therein of the Issuer, Virginia Commerce Bancorp, Inc., as sponsor, and the holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer is issuing on the date hereof fixed rate trust preferred securities, having an aggregate liquidation amount of up to $25,000,000 (the “Preferred Securities”); and

 

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, will be used to purchase the Debentures (as defined herein);

 

WHEREAS , as incentive for the Holders to purchase the Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay to the Holders of 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 the Preferred Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of the Holders of the Preferred Securities:

 

ARTICLE I

DEFINITIONS AND INTERPRETATION

 

Section 1.1 Definitions and Interpretation .

 

In this Guarantee, unless the context otherwise requires:

 

(a) capitalized terms used in this Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1;

 

(b) a term defined anywhere in this Guarantee has the same meaning throughout;

 

(c) all references to “the Guarantee” or “this Guarantee” are to this Guarantee as modified, supplemented or amended from time to time;

 

(d) all references in this Guarantee to Articles and Sections are to Articles and Sections of this Guarantee, unless otherwise specified;

 

(e) capitalized terms used in this Guarantee but not defined herein have the meanings assigned to such terms in the Declaration as of the date of execution of this Guarantee; and

 

(f) a reference to the singular includes the plural and vice versa.

 

“Beneficiaries” means any Person to whom the Issuer is or hereafter becomes indebted or liable.

 

“Common Securities” has the meaning specified in the Declaration.

 

“Corporate Trust Office” means the office of the Guarantee Trustee at which at any particular time its corporate trust business shall be principally administered, which at all times shall be located within the United States and at the time of the execution of this Guarantee shall be Rodney Square North, 1100 North Market Street, Wilmington Delaware 19890-0001.

 

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“Debenture Issuer” means Virginia Commerce Bancorp, Inc. or any successor entity resulting from any consolidation, amalgamation, merger or other business combination, in its capacity as issuer of the Debentures.

 

“Debentures” means the junior subordinated debentures of the Debenture Issuer that are designated in the Indenture as the “Fixed Rate Junior Subordinated Debt Securities due 2038” and held by the Property Trustee (as defined in the Declaration) of the Issuer.

 

“Event of Default” means (i) a default by the Guarantor in any of its payment obligations under this Guarantee Agreement or (ii) a default by the Guarantor in any other obligation hereunder that remains unremedied for 30 days.

 

“Guarantee 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 accrued and unpaid Distributions (as defined in the Declaration) which are required to be paid on such Preferred Securities, to the extent the Issuer has funds available in the Property Account (as defined in the Declaration) therefor at such time, (ii) the price payable upon the redemption of any Preferred Securities to the extent the Issuer has funds available in the Property Account therefor at such time, and (iii) upon a voluntary or involuntary liquidation, dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of Debentures to the Holders in exchange therefor as provided in the Declaration), the lesser of (a) the aggregate of the liquidation amount of the Preferred Securities and all accrued and unpaid Distributions on the Preferred Securities to the date of payment, to the extent the Issuer has funds available in the Property Account therefor at such time, and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer after satisfaction of liabilities to creditors of the Issuer as required by applicable law (in either case, the “Liquidation Distribution”).

 

“Guarantee Trustee” means Wilmington Trust Company, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee and thereafter means each such Successor Guarantee Trustee.

 

“Holder” means any Person in whose name any Preferred Securities are registered on the books and records of the Issuer; provided , however , 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 Guarantee Trustee.

 

“Indemnified Person” means the Guarantee Trustee (including in its individual capacity), any Affiliate of the Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Guarantee Trustee.

 

“Indenture” means the Indenture, dated as of the date hereof, between the Debenture Issuer and Wilmington Trust Company, not in its individual capacity but solely as trustee, and any indenture supplemental thereto pursuant to which the Debentures are to be issued to the Institutional Trustee of the Issuer.

 

“Liquidation Distribution” has the meaning set forth in the definition of “Guarantee Payments” herein.

 

“Majority in Liquidation Amount of the Preferred Securities” means Holder(s) of outstanding Preferred Securities, voting together as a class, but separately from the holders of Common Securities, of more than 50% of the aggregate liquidation amount (including the amount that would be paid upon the redemption, liquidation or otherwise on the date upon which the voting percentages are determined, plus unpaid Distributions accrued thereon to such date) of all Preferred Securities then outstanding.

 

“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.

 

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“Officer’s Certificate” means a certificate signed by the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President or any Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary of the Company, and delivered to the Guarantee Trustee.  Any Officer’s Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee shall include:

 

(a) a statement that such officer signing the Officer’s 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 such officer in rendering the Officer’s Certificate;

 

(c) a statement that 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 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.

 

“Responsible Officer” means, with respect to the Guarantee Trustee, any officer within the Corporate Trust Office of the Guarantee Trustee with direct responsibility for the administration of any matters relating to this Guarantee, 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.

 

“Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.2.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this Guarantee Agreement was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

“Trust Securities” means the Common Securities and the Preferred Securities.

 

ARTICLE II

TRUST INDENTURE ACT

 

Section 2.1 Trust Indenture Act; Application .

 

This Guarantee Agreement is not being qualified under and is not governed by the Trust Indenture Act; provided, however , certain provisions of the Trust Indenture Act are being referred to or incorporated herein by reference solely to the extent specifically provided herein, and no other provisions of the Trust Indenture Act, or duties or obligations thereunder, are intended to be part of this Guarantee Agreement.

 

Section 2.2 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 (a “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

 

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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 2.3 Reports by the Guarantee Trustee .

 

Not later than June 30 of each year, commencing June 30, 2009, the Guarantee Trustee shall provide to the Holders such reports, if any, as are required by Section 313 of the Trust Indenture Act (applied as if this Guarantee Agreement were subject to the Trust Indenture Act) in the form and in the manner provided by Section 313 of the Trust Indenture Act.

 

Section 2.4 Reports to the Guarantee Trustee .

 

The Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange Commission and the Holders such documents, reports and information, if any, as required by Section 314 of the Trust Indenture Act 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 (in each case, applied as if this Guarantee Agreement were subject to the Trust Indenture Act).

 

Section 2.5 Evidence of Compliance with Conditions Precedent .

 

The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such conditions precedent, if any, provided for in this Guarantee Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act (applied as if this Guarantee Agreement were subject to the Trust Indenture Act). Any certificate or opinion required to be given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given in the form of an Officers’ Certificate.

 

Section 2.6 Events of Default; Waiver .

 

The Holders of at least a Majority in Liquidation Amount of the Preferred Securities may, by voting or consenting as a class, on behalf of the Holders of all the Preferred Securities, waive any past default or Event of Default and its consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or 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 2.7 Event of Default; Notice .

 

(a) The Guarantee Trustee shall, within 90 days after it has knowledge of the occurrence of an Event of Default, transmit by mail, first class postage prepaid, to the Holders, notice of any such Event of Default known to the Guarantee Trustee, unless such Event of Default has been cured before the giving of such notice, provided that, except in the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.

 

(b) The Guarantee Trustee shall not be charged with knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer of the Guarantee Trustee charged with the administration of this Guarantee Agreement shall have actual knowledge of such Event of Default.

 

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ARTICLE III

POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE

 

Section 3.1 Powers and Duties of the Guarantee Trustee .

 

(a) This Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder exercising its rights pursuant to Section 5.4 (b) 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, and such vesting and succession of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee.

 

(b) If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee, has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders, exercising such of the rights and powers vested in it by this Guarantee, and using 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.

 

(c) The Guarantee Trustee, before the occurrence of any Event of Default, and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement, and no implied covenants shall be read into this Guarantee Agreement against the Guarantee Trustee. If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee has occurred (that has not been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

 

(d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith, except that:

 

(i) prior to the occurrence of any Event of Default and after the curing or waiving of all Events of Default that may have occurred:

 

(A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee, and no implied covenants or obligations shall be read into this Guarantee against the Guarantee Trustee; and

 

(B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee; but in the case of any such certificates or opinions furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not on their face they conform to the requirements of this Guarantee;

 

(ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that such Responsible Officer of the Guarantee Trustee or the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made;

 

(iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the Holders of 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; and

 

(iv) no provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds is not reasonably assured to it under the terms of this Guarantee, or security and indemnity, reasonably satisfactory to the Guarantee Trustee, against such risk or liability is not reasonably assured to it.

 

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Section 3.2 Certain Rights of the 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 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 shall be sufficiently evidenced by an Officer’s Certificate.

 

(iii) Whenever, in the administration of this Guarantee, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed)