Exhibit 4.16
GUARANTEE
AGREEMENT
Between
SCBT FINANCIAL
CORPORATION
as Guarantor,
and
[WILMINGTON TRUST
COMPANY]
as Guarantee
Trustee,
Dated as
of
Certain Sections of this Guarantee Agreement
relating to Sections 310 through 318 of the Trust Indenture Act of
1939:
|
Trust Indenture
|
|
Guarantee Agreement
|
|
Act Section
|
|
Section
|
|
310 (a)(1)
|
|
4.1 (a)
|
|
(a)(2)
|
|
4.1 (a)
|
|
(a)(3)
|
|
Not Applicable
|
|
(a)(4)
|
|
Not Applicable
|
|
(b)
|
|
2.8, 4.1 (c)
|
|
311(a)
|
|
Not Applicable
|
|
(b)
|
|
Not Applicable
|
|
312(a)
|
|
2.2 (a)
|
|
(b)
|
|
2.2 (b)
|
|
(c)
|
|
Not Applicable
|
|
313(a)
|
|
2.3
|
|
(a)(4)
|
|
2.3
|
|
(b)
|
|
2.3
|
|
(c)
|
|
2.3
|
|
(d)
|
|
2.3
|
|
314(a)
|
|
2.4
|
|
(b)
|
|
2.4
|
|
(c)(1)
|
|
2.5
|
|
(c)(2)
|
|
2.5
|
|
(c)(3)
|
|
2.5
|
|
(e)
|
|
1.1, 2.5, 3.2
|
|
315(a)
|
|
3.1 (d)
|
|
(b)
|
|
2.7
|
|
(c)
|
|
3.1 (c)
|
|
(d)
|
|
3.1 (d)
|
|
(e)
|
|
Not Applicable
|
|
316(a)
|
|
1.1, 2.6, 5.4
|
|
(a)(1)(A)
|
|
5.4
|
|
(a)(1)(B)
|
|
5.4
|
|
(a)(2)
|
|
Not Applicable
|
|
(b)
|
|
5.3
|
|
(c)
|
|
Not Applicable
|
|
317(a)(1)
|
|
Not Applicable
|
|
(a)(2)
|
|
Not Applicable
|
|
(b)
|
|
Not Applicable
|
|
318(a)
|
|
2.1
|
Note: This reconciliation and tie shall not, for
any purpose, be deemed to be a part of the Guarantee
Agreement.
i
TABLE OF CONTENTS
|
|
|
Page
|
|
|
|
|
|
ARTICLE I DEFINITIONS
|
|
2
|
|
|
Section 1.1. Definitions
|
|
2
|
|
|
|
|
|
|
ARTICLE II TRUST INDENTURE ACT
|
|
4
|
|
|
Section 2.1. Trust Indenture Act;
Application
|
|
4
|
|
|
Section 2.2. List of Holders
|
|
5
|
|
|
Section 2.3. Reports by the Guarantee
Trustee
|
|
5
|
|
|
Section 2.4. Periodic Reports to the
Guarantee Trustee
|
|
5
|
|
|
Section 2.5. Evidence of Compliance with
Conditions Precedent
|
|
5
|
|
|
Section 2.6. Events of Default;
Waiver
|
|
6
|
|
|
Section 2.7. Event of Default;
Notice
|
|
6
|
|
|
Section 2.8. Conflicting
Interests
|
|
6
|
|
|
|
|
|
|
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE
GUARANTEE TRUSTEE
|
|
6
|
|
|
Section 3.1. Powers and Duties of the
Guarantee Trustee
|
|
6
|
|
|
Section 3.2. Certain Rights of Guarantee
Trustee
|
|
8
|
|
|
Section 3.3. Indemnity
|
|
9
|
|
|
Section 3.4. Expenses
|
|
10
|
|
|
|
|
|
|
ARTICLE IV GUARANTEE TRUSTEE
|
|
10
|
|
|
Section 4.1. Guarantee Trustee;
Eligibility
|
|
10
|
|
|
Section 4.2. Appointment, Removal and
Resignation of the Guarantee Trustee
|
|
10
|
|
|
|
|
|
|
ARTICLE V GUARANTEE
|
|
11
|
|
|
Section 5.1. Guarantee
|
|
11
|
|
|
Section 5.2. Waiver of Notice and
Demand
|
|
11
|
|
|
Section 5.3. Obligations Not Affected
|
|
12
|
|
|
Section 5.4. Rights of Holders
|
|
12
|
|
|
Section 5.5. Guarantee of
Payment
|
|
13
|
|
|
Section 5.6. Subrogation
|
|
13
|
|
|
Section 5.7. Independent
Obligations
|
|
13
|
|
|
|
|
|
|
ARTICLE VI COVENANTS AND
SUBORDINATION
|
|
13
|
|
|
Section 6.1. Subordination
|
|
13
|
|
|
Section 6.2. Pari Passu
Guarantees
|
|
14
|
|
|
|
|
|
|
ARTICLE VII TERMINATION
|
|
14
|
|
|
Section 7.1. Termination
|
|
14
|
|
|
|
|
|
|
ARTICLE VIII MISCELLANEOUS
|
|
14
|
|
|
Section 8.1. Successors and
Assigns
|
|
14
|
|
|
Section 8.2. Amendments
|
|
14
|
ii
|
|
Section 8.3. Notices
|
|
15
|
|
|
Section 8.4. Benefit
|
|
16
|
|
|
Section 8.5. Interpretation
|
|
16
|
|
|
Section 8.6. Governing Law
|
|
16
|
|
|
Section 8.7. Counterparts
|
|
17
|
|
|
Section 8.8. Force Majeure
|
|
17
|
iii
GUARANTEE
AGREEMENT
THIS GUARANTEE AGREEMENT, dated as
of , 2009, is executed and
delivered by SCBT Financial Corporation, a South Carolina
corporation (the “ Guarantor ”), having its
principal office at 520 Gervais Street, Columbia, South Carolina
29201 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 Capital Securities (as defined
herein) of SCBT Capital Trust IV, a Delaware statutory trust (the
“ Issuer Trust ”).
Pursuant to an Amended and Restated
Trust Agreement (the “ Trust Agreement ”), dated
of even date herewith, among the Guarantor, as Depositor,
[Wilmington Trust Company], as Property Trustee (the “
Property Trustee ”), [Wilmington Trust Company], as
Delaware Trustee (the “ Delaware Trustee ,” and
together with the Property Trustee, collectively, the “
Issuer Trustee s”), the Administrators named therein
and the Holders from time to time of undivided beneficial interests
in the assets of the Issuer Trust, the Issuer Trust is issuing up
to $[Amount] aggregate Liquidation Amount (as defined herein) of
its Preferred Capital Securities (the “ Preferred Capital
Securities ”), representing preferred undivided
beneficial interests in the assets of the Issuer Trust and having
the terms set forth in the Trust Agreement;
The Preferred Capital Securities
will be issued by the Issuer Trust and the proceeds thereof,
together with the proceeds from the issuance of the Issuer
Trust’s Common Securities (the “ Common
Securities ”), representing common undivided beneficial
interests in the assets of the Issuer Trust, to the Guarantor, will
be used to purchase the Junior Subordinated Debentures due
[Maturity Date] (the “ Junior Subordinated Debentures
”) of the Guarantor, which will be deposited with [Wilmington
Trust Company], as Property Trustee under the Trust Agreement, as
trust assets; and
As an inducement to the Holders to
purchase the Preferred Capital Securities, the Guarantor is willing
to irrevocably and unconditionally agree, to the extent set forth
herein, to pay to the Holders of the Preferred Capital 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 of the Preferred Capital Securities by each Holder,
which purchase the Guarantor hereby acknowledges shall benefit the
Guarantor, the Guarantor, intending to be legally bound hereby,
executes and delivers this Guarantee Agreement for the benefit of
the Holders from time to time of the Preferred Capital
Securities.
1
ARTICLE
I DEFINITIONS
Section 1.1.
Definitions.
As used in this Guarantee Agreement,
the terms set forth below shall have the following meanings.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Trust
Agreement.
“ 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. 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.
“ 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.
“ Guarantee Agreement
” means this Guarantee Agreement, as modified, amended or
supplemented from time to time.
“ Guarantee Payments
” means the following payments or distributions, without
duplication, with respect to the Preferred Capital Securities, to
the extent not paid or made by or on behalf of the Issuer Trust:
(i) any accumulated and unpaid Distributions (as defined in
the Trust Agreement) required to be paid on the Preferred Capital
Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time, (ii) the Redemption Price,
with respect to the Preferred Capital Securities called for
redemption by the Issuer Trust to the extent that the Issuer Trust
shall have funds on hand available therefor at such time, and
(iii) upon a voluntary or involuntary dissolution,
termination, winding-up or liquidation of the Issuer Trust, unless
the Junior Subordinated Debentures are distributed to the Holders,
the lesser of (a) the aggregate of the Liquidation Amount of
all outstanding Trust Securities and all accumulated and unpaid
Distributions to the date of payment to the extent the Issuer Trust
shall have funds on hand available to make such payment at such
time and (b) the amount of assets of the Issuer Trust
remaining available for distribution to Holders on liquidation of
the Issuer Trust (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 Agreement and
thereafter means each such Successor Guarantee Trustee.
“ Guarantor ”
shall have the meaning specified in the first paragraph of this
Guarantee Agreement.
“ Holder ” means
any holder, as registered on the books and records of the Issuer
Trust, of any Preferred Capital Securities; provided ,
however , that, in determining whether the holders of the
requisite percentage of Preferred Capital 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.
2
“ Indenture ”
means the Junior Subordinated Indenture, dated as of
,
20 , between the Guarantor and
[Wilmington Trust Company], as trustee, as it may be modified,
amended or supplemented from time to time to provide for the Junior
Subordinated Debentures.
“ Issuer Trust ”
shall have the meaning specified in the first paragraph of this
Guarantee Agreement.
“ Like Amount ”
means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture,
allocated to the Common Securities and to the Preferred Capital
Securities based upon the relative Liquidation Amounts of such
classes and (b) with respect to a distribution of Junior
Subordinated Debentures to Holders of Trust Securities in
connection with a dissolution or liquidation of the Issuer Trust,
Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to
whom such Junior Subordinated Debentures are
distributed.
“ Liquidation Amoun
t” means the stated amount of
$[ ] per Preferred Capital
Security and $[ ] per Common
Security.
“ Majority in Liquidation
Amount of the Preferred Capital Securities ” means,
except as provided by the Trust Indenture Act, Preferred Capital
Securities representing more than 50% of the aggregate Liquidation
Amount of all then outstanding Preferred Capital Securities issued
by the Issuer Trust.
“ Officers’
Certificate ” means a certificate signed by the Chairman
of the Board, Vice Chairman of the Board, Chief Executive Officer,
President, Executive Vice President or a Senior Vice President or
Vice President, and by the Treasurer, an Assistant Treasurer, the
Chief Financial Officer, the Secretary or an Assistant Secretary of
the Guarantor, 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 shall include:
(a)
a statement by each officer signing
the Officers’ Certificate that such officer 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 Officers’ 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.
3
“ 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 Date
” means, with respect to any Preferred Capital Security to be
redeemed, the date fixed for such redemption by or pursuant to the
Trust Agreement; provided that each Debenture Redemption
Date and the stated maturity of the Junior Subordinated Debentures
shall be a Redemption Date for a Like Amount of Preferred Capital
Securities, including, but not limited to any date of redemption
pursuant to the occurrence of any Special Event.
“ Redemption Price
” shall have the meaning specified in the Trust
Agreement.
“ Responsible Office
r” means, when used with respect to the Guarantee Trustee,
any officer assigned to the Corporate Trust Office, including any
managing director, vice president, principal, assistant vice
president, assistant treasurer, assistant secretary or any other
officer of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers
and having direct responsibility for the administration of this
Guarantee Agreement, and also, with respect to a particular matter,
any other officer of the Guarantee Trustee to whom such matter is
referred because of such officer’s knowledge of and
familiarity with the particular subject.
“ Senior Indebtedness
” shall have the meaning specified in the
Indenture.
“ Successor Guarantee
Trustee ” means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under
Article IV hereof.
“ Trust Agreement
” has the meaning specified in the recitals
hereto.
“ Trust Indenture Act
” means the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb), as amended.
“ Trust Securities
” means the Common Securities and the Preferred Capital
Securities.
ARTICLE II
TRUST INDENTURE
ACT
Section 2.1. Trust Indenture
Act; Application.
If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act
that is required under such Act to be a part of and govern this
Guarantee Agreement, the provision of the Trust Indenture Act shall
control. If any provision of this Guarantee Agreement modifies or
excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply
to this Guarantee Agreement as so modified or excluded, as the case
may be.
4
Section 2.2. List of
Holders.
(a)
The Guarantor will furnish or cause
to be furnished to the Guarantee Trustee a list of Holders at the
following times:
(i)
[quarterly], not more than 15 days
after the last day of [February, May, August and November], in
each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders as of
the last day of [February, May, August and November], as
applicable; and
(ii)
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 similar form and
content as of a date not more than 15 days prior to the time such
list is furnished.
(b)
The Guarantee Trustee shall comply
with the requirements of Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.
Section 2.3. Reports by the
Guarantee Trustee.
Not later than [January 31] of
each year, commencing [January 31,
], the Guarantee Trustee shall
provide to the Holders such reports, if any, as are required by
Section 313 of the Trust Indenture Act in the form and in the
manner provided by Section 313 of the Trust Indenture Act. If
this Guarantee Agreement shall have been qualified under the Trust
Indenture Act, the Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture
Act.
Section 2.4. Periodic
Reports to the Guarantee Trustee.
The Guarantor shall provide to the
Guarantee Trustee 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, provided that such documents, reports and
information shall be required to be provided to the Securities and
Exchange Commission only if this Guarantee Agreement shall have
been qualified under 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. Any
certificate or opinion required to be given by an officer pursuant
to Section 314(c)(1) may be given in the form of an
Officers’ Certificate.
5
Section 2.6. Events of
Default; Waiver.
The Holders of a Majority in
Liquidation Amount of the Preferred Capital Securities may, by
vote, on behalf of the Holders, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
therefrom.
Section 2.7. Event of
Default; Notice.
(a)
The Guarantee Trustee shall, within
90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders, notice of all
Events of Default known to the Guarantee Trustee, unless such
Events of Default have been cured or waived before the giving of
such notice; provided that , except in the case of a
default in the payment of a Guarantee Payment, the Guarantee
Trustee shall be protected in withholding such notice if and so
long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
(b)
The Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default unless a
Responsible Officer charged with the administration of this
Guarantee Agreement shall have received written notice of such
Event of Default.
Section 2.8. Conflicting
Interests.
The Trust Agreement shall be deemed
to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
GUARANTEE TRUSTEE
Section 3.1. Powers and
Duties of the Guarantee Trustee.
(a)
This Guarantee Agreement shall be
held by the Guarantee Trustee for the benefit of the Holders, and
the Guarantee Trustee shall not transfer this Guarantee Agreement
to any Person except a Holder exercising his or her rights pursuant
to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of
