EXHIBIT
10.3
PREFERRED
SECURITIES GUARANTY AGREEMENT
SERVISFIRST
BANCSHARES, INC.
MARCH
15, 2010
TABLE OF
CONTENTS
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ARTICLE
I
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2
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SECTION
1.1 Definitions
and Interpretation
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2
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ARTICLE
II
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5
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SECTION
2.1 Trust
Indenture Act; Application
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5
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SECTION
2.2 Lists of
Holders of Securities
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5
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SECTION
2.3 Reports by
the Preferred Securities Guarantee Trustee
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5
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SECTION
2.4 Periodic
Reports to Preferred Securities Guarantee Trustee
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6
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SECTION
2.5 Evidence of
Compliance with Conditions Precedent
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7
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SECTION
2.6 Events of
Default; Waiver
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8
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SECTION
2.7 Event of
Default; Notice
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8
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SECTION
2.8 Conflicting
Interests
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8
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ARTICLE
III
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9
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SECTION
3.1 Powers and
Duties of the Preferred Securities Guarantee
Trustee
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9
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SECTION
3.2 Certain
Rights of Preferred Securities Guarantee Trustee
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10
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SECTION
3.3. Not
Responsible for Recitals or Issuance of Preferred Securities
Guarantee
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12
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ARTICLE
IV
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12
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SECTION
4.1 Preferred
Securities Guarantee Trustee; Eligibility
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12
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SECTION
4.2 Appointment, Removal
and Resignation of Preferred Securities Guarantee
Trustee
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13
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ARTICLE
V
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14
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SECTION
5.1 Guarantee
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14
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SECTION
5.2 Waiver of
Notice and Demand
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14
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SECTION
5.3 Obligations
Not Affected
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14
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SECTION
5.4 Rights of
Holders
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15
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SECTION
5.5 Guarantee of
Payment
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15
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SECTION
5.6 Subrogation
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15
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SECTION
5.7 Independent
Obligations
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16
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ARTICLE
VI
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16
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SECTION
6.1 Limitation
of Transactions
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16
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SECTION
6.2 Ranking
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17
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ARTICLE
VII
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17
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SECTION
7.1 Termination
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17
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ARTICLE
VIII
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17
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SECTION 8.1 Exculpation
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17
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SECTION 8.2 Indemnification
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18
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ARTICLE
IX
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18
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SECTION 9.1 Successors
and Assigns
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18
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SECTION 9.2 Amendments
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18
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SECTION 9.3 Notices
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19
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SECTION 9.4 Benefit
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20
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SECTION 9.5 Governing
Law
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20
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EXHIBIT
A
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A-1
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PREFERRED
SECURITIES GUARANTY AGREEMENT
This
PREFERRED SECURITIES GUARANTY AGREEMENT (the “Preferred Securities Guaranty”),
dated as of March 15, 2010, is executed and delivered by ServisFirst Bancshares, Inc.,
a Delaware corporation (the “Guarantor”), and Wilmington Trust Company, a
Delaware banking corporation, as trustee (the “Preferred Securities Guaranty
Trustee”), for the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of ServisFirst Capital Trust II,
a Delaware statutory trust (the “Issuer”).
WHEREAS,
pursuant to an Amended and Restated Trust Agreement (the “Trust Agreement”),
dated as of March 15, 2010, among the trustees of the Issuer, the Guarantor, 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 15,000
preferred securities, having an aggregate liquidation amount of $15,000,000,
such preferred securities being designated the 6.0% Preferred Securities
(collectively the “Preferred Securities”).
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 Preferred Securities Guaranty, to pay to the Holders of the Preferred
Securities the Guaranty Payments (as defined below). The Guarantor
agrees to make certain other payments on the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the purchase by each Holder of Preferred
Securities, which purchase the Guarantor hereby acknowledges shall benefit the
Guarantor, the Guarantor executes and delivers this Preferred Securities
Guaranty for the benefit of the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1
Definitions and
Interpretation
In this
Preferred Securities Guaranty, unless the context otherwise
requires:
(a) capitalized
terms used in this Preferred Securities Guaranty 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 at the date of execution of this Preferred
Securities Guaranty have the same meaning when used in this Preferred Securities
Guaranty unless otherwise defined in this Preferred Securities
Guaranty;
(c) a
term defined anywhere in this Preferred Securities Guaranty has the same meaning
throughout;
(d) all
references to “the Preferred Securities Guaranty” or “this Preferred Securities
Guaranty” are to this Preferred Securities Guaranty as modified, supplemented or
amended from time to time;
(e) all
references in this Preferred Securities Guaranty to Articles and Sections are to
Articles and Sections of this Preferred Securities Guaranty, unless otherwise
specified;
(f) a
term defined in the Trust Indenture Act has the same meaning when used in this
Preferred Securities Guaranty, unless otherwise defined in this Preferred
Securities Guaranty 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 under the Securities Act of 1933,
as in effect from time to time, or any successor rule thereunder.
“Business Day” means
any day other than a Saturday or a Sunday, or a day on which banking
institutions in The City of New York or Wilmington, Delaware are authorized or
required by law or executive order to close.
“Common Securities”
means the securities representing common undivided beneficial interests in the
assets of the Issuer.
“Corporate Trust
Office” means the office of the Preferred Securities Guaranty Trustee at
which the corporate trust business of the Preferred Securities Guaranty Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Rodney Square North, 1100
Market Square North, Attention: Corporate Trust
Administration.
“Covered Person” means
any Holder or beneficial owner of Preferred Securities.
“Debentures” means the
series of subordinated debt securities of the Guarantor designated the 6.0%
Junior Subordinated Mandatory Convertible Deferrable Interest Debentures due
March 15, 2040 held by the Property Trustee (as defined in the Trust Agreement)
of the Issuer.
“Event of Default”
means a default by the Guarantor on any of its payment or other obligations
under this Preferred Securities Guaranty.
“Exchange Act” means
the Securities Exchange Act of 1934, as in effect from time to time, or any
successor legislation.
“GAAP” means generally
accepted accounting principles, as recognized by the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for the Guarantor and
its subsidiaries throughout the period indicated and consistent with the prior
financial practice of the Guarantor and its subsidiaries.
“Guaranty Payments”
means the following payments or distributions, without duplication, with respect
to the Preferred Securities, to the extent not paid or made by the Issuer: (i)
any accumulated and unpaid Distributions (as defined in the Trust Agreement)
that are required to be paid on such Preferred Securities to the extent the
Issuer has funds on hand legally available therefor at such time, (ii) the
redemption price, including all accumulated and unpaid Distributions to the date
of redemption (the “Redemption Price”) to the extent the Issuer has funds on
hand legally available therefor at such time, with respect to any Preferred
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary termination and liquidation of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for 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
Preferred Securities to the date of payment, to the extent the Issuer has funds
on hand legally available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the
Issuer.
“Holder” shall mean
any holder, as registered on the books and records of the Issuer, of any
Preferred Securities; 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 or any Affiliate of the Guarantor.
“Indemnified Person”
means the Preferred Securities Guaranty Trustee, any Affiliate of the Preferred
Securities Guaranty Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Preferred Securities Guaranty Trustee.
“Indenture” means the
Indenture dated as of March 15, 2010, among the Guarantor (the “Debenture
Issuer”) and Wilmington Trust Company, as trustee, pursuant to which the
Debentures are to be issued to the Property Trustee of the Issuer.
“Majority in liquidation
amount of the Preferred Securities” means, except as provided by the
Trust Indenture Act, a vote by Holder(s) of Preferred Securities, voting
separately as a class, of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities.
“Officers’
Certificate” means, with respect to any person, a certificate signed by
two of the following: the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the Secretary or the
Treasurer of the Guarantor. Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Preferred Securities Guaranty 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 Officer’s 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.
“Other Debentures”
means all junior subordinated debentures issued by the Guarantor from time to
time and sold to trusts to be established by the Guarantor (if any), in each
case similar to the Issuer.
“Other Guaranties”
means all guaranties hereafter issued by the Guarantor with respect to preferred
securities (if any) similar to the Preferred Securities issued by other trusts
to be established by the Guarantor (if any), in each case similar to the
Issuer.
“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.
“Preferred Securities
Guaranty Trustee” means Wilmington Trust Company until a Successor
Preferred Securities Guaranty Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guaranty, and
thereafter means each such Successor Preferred Securities Guaranty
Trustee.
“Responsible Officer”
means, with respect to the Preferred Securities Guaranty Trustee, any officer
assigned to the Corporate Trust Office, including any managing director, vice
president, assistant vice president, assistant treasurer, assistant secretary or
any other officer of the Preferred Securities Guaranty Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular matter, any other officer
to whom such matter is referred because of that officer’s knowledge of and
familiarity with the particular subject.
“Successor Preferred
Securities Guaranty Trustee” means a successor Preferred Securities
Guaranty Trustee possessing the qualifications to act as Preferred Securities
Guaranty Trustee under Section 4.1.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as in effect from time to
time.
“Trust Securities”
means the Common Securities and the Preferred Securities.
ARTICLE
II
TRUST
INDENTURE ACT
Section
2.1
Trust Indenture Act;
Application.
(a) This
Preferred Securities Guaranty is not subject to or governed by the Trust
Indenture Act except to the extent set forth herein as expressly agreed to by
the parties to this Preferred Securities Guaranty.
(b) The
Preferred Securities Guaranty Trustee shall comply with the obligations set
forth under Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
Section
2.2 Lists of Holders of
Securities
[Intentionally
Omitted].
Section
2.3 Reports by the Preferred
Securities Guaranty Trustee
(a) Within
60 days after September 2 of each year, commencing September 2, 2009, the
Preferred Securities Guaranty Trustee shall provide to the Holders a brief
report with respect to any of the following events which may have occurred
within the previous 12 months (but if no such event has occurred within such
period no report need be transmitted):
(1) The
character and amount of any advances made by it, as Preferred Securities
Guaranty Trustee, which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Preferred Securities, on the trust estate or on property or funds held or
collected by it as the Preferred Securities Guaranty Trustee, if such advances
so remaining unpaid aggregate more than one-half of one per centum of the
principal amount of the Preferred Securities outstanding on such
date;
(2) Any
change to the amount, interest rate, and maturity date of all other indebtedness
owning to it in its individual capacity, on the date of such report, by the
Guarantor, with a brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship arising in
any manner described in Section 2.1(b);
(3) Any
change to the property and funds physically in its possession as Preferred
Securities Guaranty Trustee on the date of such report;
(4) Any
additional issue of Preferred Securities which it has not previously reported;
and
(5) Any
action taken by it in the performance of its duties under the Preferred
Securities Guaranty which it has not previously reported and which in its
opinion materially affects the Preferred Securities or the trust
estate.
(b) The
Preferred Securities Guaranty Trustee shall transmit to the Holders a brief
report with respect to the character and amount of any advances made by it as
such since the date of the last report transmitted pursuant to the provisions of
subsection (a) (or if no such report has yet been so transmitted, since the date
of execution of the Preferred Securities Guaranty), for the reimbursement of
which it claims or may claim a lien or charge, prior to that of the Preferred
Securities, on the trust estate or on property or funds held or collected by it
as such Preferred Securities Guaranty Trustee, and which it has not previously
reported pursuant to this paragraph, if such advances remaining unpaid at any
time aggregate more than 10 per centum of the principal amount of Preferred
Securities outstanding at such time, such report to be so transmitted within 90
days after such time.
(c) Reports
pursuant to this section shall be transmitted by mail:
(1)
To all registered holders of Preferred Securities, as the
names and addresses of such Holders appear upon the registration books of the
Issuer; and
(2)
To such holders of Preferred Securities as have, within the two
years preceding such transmission, filed their names and addresses with the
Preferred Securities Guaranty Trustee for that purpose.
Section
2.4
Periodic Reports to
Preferred Securities Guaranty Trustee
(a) General. The
Guarantor shall furnish to the Preferred Securities Guaranty
Trustee:
(i) unless
the Guarantor is then filing comparable reports pursuant to the reporting
requirements of the Exchange Act, as soon as practicable and in any event within
45 days after the end of the first, second and third quarterly accounting
periods of each fiscal year (commencing with the quarter ending March 31, 2010),
the Guarantor’s unaudited consolidated balance sheet as of the last day of such
quarterly period and the related consolidated statements of income and cash
flows during such quarterly period prepared in accordance with GAAP and (in the
case of second and third quarterly periods) for the portion of the fiscal year
ending with the last day of such quarterly period, setting forth in each case in
comparative form corresponding unaudited figures from the preceding fiscal
year;
(ii) unless
the Guarantor is then filing comparable reports pursuant to the reporting
requirements of the Exchange Act, as soon as practicable and in any event within
90 days after the end of each fiscal year (commencing with the fiscal year
ending December 31, 2009), the Guarantor’s consolidated balance sheet as of the
end of such year and the related consolidated statements of income, cash flows,
and shareholders’ equity during such year setting forth in each case in
comparative form corresponding figures from the preceding fiscal year
accompanied by an audit report thereon of a firm of independent public
accountants registered with the Public Company Accounting Oversight
Board;
(iii) at
the time of the delivery of the report provided for in clause (ii) above (or at
the time of the filing of the comparable report pursuant to the Exchange Act),
an Officers’ Certificate in form attached hereto as Exhibit A to the
effect that, to the best of such officers’ knowledge, no default or Event of
Default under the Guarantee Agreement has occurred and is continuing or, if any
default or Event of Default thereunder has occurred and is continuing,
specifying the nature and extent thereof and what action the Guarantor is taking
or proposes to take in response thereto; and
(iv) promptly
after the Guarantor obtains actual knowledge of the occurrence thereof, written
notice of the occurrence of any event or condition which constitutes an Event of
Default, and an Officers’ Certificate of the Guarantor specifically stating that
such Event of Default has occurred and setting forth the details thereof and the
action which the Guarantor is taking or proposes to take with respect
thereto.
(b) All
such information provided to the Preferred Securities Guaranty Trustee as
indicated above also will be provided by the Preferred Securities Guaranty
Trustee upon written request to the Preferred Securities Guaranty Trustee (which
may be a single continuing request), to (x) Holders, (y) holders of beneficial
interests in the Preferred Securities or (z) prospective purchasers of the
Preferred Securities (and of beneficial interests in the Preferred
Securities). The Guarantor shall furnish to the Preferred Securities
Guaranty Trustee, upon its request, sufficient copies of all such information to
accommodate the requests of such Holders (and holders of beneficial interests
therein) and prospective holders of Securities (and of beneficial interests
therein)
(c) Upon
the request of any Holder, any holder of a beneficial interest in the Preferred
Securities, or the Preferred Securities Guaranty Trustee (on behalf of a Holder
or a holder of a beneficial interest in the Preferred Securities), the Guarantor
shall furnish such information as is specified in paragraph (d)(4) of Rule 144A
to Holders (and to holders of beneficial interests in the Preferred Securities),
prospective purchasers of the Preferred Securities (and of beneficial interests
in the Preferred Securities) who are Qualified Institutional Buyers or
Accredited Investors or to the Preferred Securities Guaranty Trustee for
delivery to such Holder (or holders of beneficial interests in the Preferred
Securities) or prospective purchasers of the Preferred Securities (or
prospective purchasers of beneficial interests therein), as the case may be,
unless, at the time of such request, the Guarantor is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act.
Section
2.5
Evidence of Compliance with
Conditions Precedent
(a) The
Guarantor shall furnish to the Preferred Securities Guaranty Trustee evidence of
compliance with the conditions precedent, if any, provided for in the Preferred
Securities Guaranty (including any covenants compliance with which constitutes a
condition precedent) which relate to the satisfaction and discharge of the
Preferred Securities Guaranty, or to any other action to be taken by the
Preferred Securities Guaranty Trustee at the request or upon the application of
the Guarantor. Such evidence shall consist of the
following:
(i) Officers’
Certificates or opinions made by officers of the Guarantor stating that such
conditions precedent have been complied with; and
(ii) An
opinion of counsel (who may be counsel of the Guarantor) stating that in his
opinion such conditions precedent have been complied with.
Section
2.6 Events of Default;
Waiver
The
Holders of a Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of the Holders of all of the 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
Preferred Securities Guaranty, 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
(a) The
Preferred Securities Guaranty Trustee shall, within 90 days after the occurrence
of a default with respect to this Preferred Securities Guaranty known to a
Responsible Officer of the Preferred Securities Guaranty Trustee, mail by first
class postage prepaid, to all Holders of the Preferred Securities, notices of
all defaults actually known to a Responsible Officer of the Preferred Securities
Guaranty Trustee, unless such defaults have been cured before the giving of such
notice, provided, that, except in the case of default in the payment of any
Guaranty Payment, the Preferred Securities Guaranty 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 Preferred Securities Guaranty Trustee in good faith determines
that the withholding of such notice is in the interests of the holders of the
Preferred Securities.
(b) The
Preferred Securities Guaranty Trustee shall not be deemed to have knowledge of
any Event of Default unless the Preferred Securities Guaranty Trustee shall have
received written notice, or a Responsible Officer of the Preferred Securities
Guaranty 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 Preferred
Securities Guaranty 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
PREFERRED
SECURITIES GUARANTY TRUSTEE
Section
3.1 Powers and Duties of the
Preferred Securities Guaranty Trustee
(a) This
Preferred Securities Guaranty shall be held by the Preferred Securities Guaranty
Trustee for the benefit of the Holders of the Preferred Securities, and the
Preferred Securities Guaranty Trustee shall not transfer this Preferred
Securities Guaranty to any Person except a Holder of Preferred Securities
exercising his or her rights pursuant to Section 5.4(b) or to a Successor
Preferred Securities Guaranty Trustee on acceptance by such Successor Preferred
Securities Guaranty Trustee of its appointment to act as Successor Preferred
Securities Guaranty Trustee. The right, title and interest of the
Preferred Securities Guaranty Trustee shall automatically vest in any Successor
Preferred Securities Guaranty 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 Preferred Securities
Guaranty Trustee.
(b) If
an Event of Default actually known to a Responsible Officer of the Preferred
Securities Guaranty Trustee has occurred and is continuing, the Preferred
Securities Guaranty Trustee shall enforce this Preferred Securities Guaranty for
the benefit of the Holders of the Preferred Securities.
(c) The
Preferred Securities Guaranty 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 Preferred Securities Guaranty, and no implied covenants shall be read into
this Preferred Securities Guaranty against the Preferred Securities Guaranty
Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6) and is actually known to a Responsible
Officer of the Preferred Securities Guaranty Trustee, the Preferred Securities
Guaranty Trustee shall exercise such of the rights and powers vested in it by
this Preferred Securities Guaranty, 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 Preferred Securities Guaranty shall be construed to relieve
the Preferred Securities Guaranty Trustee from liability for its own gross
negligent action, its own gross 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 Preferred Securities Guaranty Trustee shall be
determined solely by the express provisions of this Preferred Securities
Guaranty, and the Preferred Securities Guaranty Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Preferred Securities Guaranty, and no implied covenants or
obligations shall be read into this Preferred Securities Guaranty against the
Preferred Securities Guaranty Trustee; and
(B) in
the absence of bad faith on the part of the Preferred Securities Guaranty
Trustee, the Preferred Securities Guaranty 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 Preferred Securities
Guaranty Trustee and conforming to the requirements of this Preferred Securities
Guaranty; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Preferred
Securities Guaranty Trustee, the Preferred Securities Guaranty Trustee shall be
under a duty to examine the same to determine whether or not they conform to the
requirements of this Preferred Securities Guaranty;
(ii) the
Preferred Securities Guaranty Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Preferred Securities
Guaranty Trustee, unless it shall be proved that the Preferred Securities
Guaranty Trustee was grossly negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the
Preferred Securities Guaranty 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 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 Preferred Securities Guaranty Trustee, or
exercising any trust or power conferred upon the Preferred Securities Guaranty
Trustee under this Preferred Securities Guaranty; and
(iv) no
provision of this Preferred Securities Guaranty shall require the Preferred
Securities Guaranty 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 Preferred Securities Guaranty
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
Preferred Securities Guaranty or indemnity, satisfactory to the Preferred
Securities Guaranty Trustee, against such risk or liability is not reasonably
assured to it.
Section
3.2 Certain Rights of Preferred
Securities Guaranty Trustee
(a) Subject
to the provisions of Section 3.1:
(i)
The Preferred Securities Guaranty 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 Preferred
Securities Guaranty may be sufficiently evidenced by an Officers’
Certificate.
(iii) Whenever,
in the administration of this Preferred Securities Guaranty, the Preferred
Securities Guaranty Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Preferred Securities Guaranty 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
Preferred Securities Guaranty Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof).
(v) The
Preferred Securities Guaranty Trustee may consult with counsel of its selection,
and the 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
Preferred Securities Guaranty Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred Securities Guaranty
from any court of competent jurisdiction.
(vi) The
Preferred Securities Guaranty Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Preferred Securities Guaranty
at the request or direction of any Holder, unless such Holder shall have
provided to the Preferred Securities Guaranty Trustee such security and
indemnity, satisfactory to the Preferred Securities Guaranty Trustee, against
the costs, expenses (including attorneys’ fees and expenses and the expenses of
the Preferred Securities Guaranty 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
Preferred Securities Guaranty Trustee; provided that, nothing contained in this
Section 3.2(a)(vi) shall be taken to relieve the Preferred Securities Guaranty
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Preferred Securities
Guaranty.
(vii) The
Preferred Securities Guaranty 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 Preferred Securities Guaranty Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
(viii) The
Preferred Securities Guaranty 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 Preferred Securities Guaranty
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 Preferred Securities Guaranty Trustee or its agents
hereunder shall bind the Holders of the Preferred Securities, and the signature
of the Preferred Securities Guaranty 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 Preferred Securities
Guaranty Trustee to so act or as to its compliance with any of the terms and
provisions of this Preferred Securities Guaranty, both of which shall be
conclusively evidenced by the Preferred Securities Guaranty Trustee’s or its
agent’s taking such action.
(x) Whenever
in the administration of this Preferred Securities Guaranty the Preferred
Securities Guaranty Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Preferred Securities Guaranty Trustee (i) may request and shall be entitled
to receive, instructions from the Holders of a Majority in liquidation amount of
the 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 fully protected in conclusively relying on or acting in accordance with
such instructions.
(xi) The
Preferred Securities Guaranty Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without gross negligence,
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Preferred Securities
Guaranty.
(b) No
provision of this Preferred Securities Guaranty shall be deemed to impose any
duty or obligation on the Preferred Securities Guaranty 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
Preferred Securities Guaranty 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 Preferred Securities Guaranty Trustee shall be
construed to be a duty.
Section
3.3. Not Responsible for Recitals
or Issuance of Preferred Securities Guaranty
The
recitals contained in this Preferred Securities Guaranty shall be taken as the
statements of the Guarantor, and the Preferred Securities Guaranty Trustee does
not assume any responsibility for their correctness. The Preferred
Securities Guaranty Trustee makes no representation as to the validity or
sufficiency of this Preferred Securities Guaranty.
ARTICLE
IV
PREFERRED
SECURITIES GUARANTY TRUSTEE
Section
4.1 Preferred Securities
Guaranty Trustee; Eligibility
(a) There
shall at all times be a Preferred Securities Guaranty Trustee which
shall:
(i) not
be an Affiliate of the Guarantor; and
(ii) be
a corporation 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 corporation or Person permitted by the Securities and Exchange Commission to
act as an institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least U.S. $50,000,000, and subject to supervision or
examination by Federal, state, territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the 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 corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If
at any time the Preferred Securities Guaranty Trustee shall cease to be eligible
to so act under Section 4.1(a), the Preferred Securities Guaranty Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If
the Preferred Securities Guaranty Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the
Preferred Securities Guaranty 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 Preferred Securities GuarantyTrustee
(a) Subject
to Section 4.2(b), the Preferred Securities Guaranty Trustee may be appointed or
removed without cause at any time by the Guarantor except during an Event of
Default.
(b) The
Preferred Securities Guaranty Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Preferred Securities Guaranty Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Securities Guaranty Trustee and delivered to the
Guarantor.
(c) The
Preferred Securities Guaranty Trustee shall hold office until a Successor
Preferred Securities Guaranty Trustee shall have been appointed or until its
removal or resignation. The Preferred Securities Guaranty Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Preferred Securities Guaranty Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Preferred Securities Guaranty Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Preferred Securities Guaranty Trustee and delivered to the Guarantor and the
resigning Preferred Securities Guaranty Trustee.
(d) If
no Successor Preferred Securities Guaranty Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of removal or resignation, the Preferred Securities
Guaranty Trustee resigning or being removed may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a Successor
Preferred Securities Guaranty Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Preferred Securities Guaranty Trustee.
(e) No
Preferred Securities Guaranty Trustee shall be liable for the acts or omissions
to act of any Successor Preferred Securities Guaranty Trustee.
(f)
Upon termination of this Preferred
Securities Guaranty or removal or resignation of the Preferred Securities
Guaranty Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Preferred Securities Guaranty Trustee all amounts due to the Preferred
Securities Guaranty Trustee accrued to the date of such termination, removal or
resignation.
ARTICLE
V
GUARANTY
Section
5.1 Guaranty
The
Guarantor irrevocably and unconditionally agrees to pay in full on a
subordinated basis to the extent set forth in this Preferred Securities Guaranty
to the Holders the Guaranty Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The
Guarantor’s obligation to make a Guaranty Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantors shall
notify the Preferred Securities Guaranty Trustee of any such payment in
writing.
Section
5.2 Waiver of Notice and
Demand
The
Guarantor hereby waives notice of acceptance of this Preferred Securities
Guaranty and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
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
Preferred Securities Guaranty 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 Issuer of any express or implied agreement, covenant, term or
condition relating to the Preferred Securities to be performed or observed by
the Issuer;
(b) the
extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or in connection
with, the 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 Preferred Securities, or any action on
the part of the Issuer 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,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any
invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g) 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 with respect to the Guaranty
Payments 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) The
Holders of a Majority in liquidation amount of the Preferred Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Preferred Securities Guaranty Trustee in respect of this
Preferred Securities Guaranty or exercising any trust or power conferred upon
the Preferred Securities Guaranty Trustee under this Preferred Securities
Guaranty.
(b) If
the Preferred Securities Guaranty Trustee fails to enforce such Preferred
Securities Guaranty, any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce the Preferred Securities
Guaranty Trustee’s rights under this Preferred Securities Guaranty, without
first instituting a legal proceeding against the Issuer, the Preferred
Securities Guaranty Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be brought first
against the Issuer or any other person or entity before proceeding directly
against the Guarantor.
Section
5.5 Guaranty of
Payment
This
Preferred Securities Guaranty 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 of Preferred
Securities against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Preferred Securities Guaranty; 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
as a result of payment under this Preferred Securities Guaranty, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
Securities Guaranty. 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 Issuer with respect to the Preferred Securities, and that the
Guarantor shall be liable as principal and as debtor hereunder to make Guaranty
Payments pursuant to the terms of this Preferred Securities Guaranty
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE
VI
LIMITATION
OF TRANSACTIONS; SUBORDINATION
Section
6.1 Limitation of
Transactions
So long
as any Preferred Securities remain outstanding and (i) there shall have occurred
any event of which the Guarantor has actual knowledge that (a) is, or with the
giving of notice or the lapse of time, or both, would be an Event of Default and
(b) in respect of which the Guarantor shall not have taken reasonable steps to
cure, (ii) if such Debentures are held by the Property Trustee, the Guarantor
shall be in default with respect to its payment of any obligations under this
Preferred Securities Guaranty or (iii) the Guarantor shall have given notice of
its election of the exercise of its right to extend the interest payment period
pursuant to Section 16.01 of the Indenture and any such extension shall be
continuing, the Guarantor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Guarantor’s capital stock (which includes common and
preferred stock) or (ii) make any payment of principal, interest or premium, if
any, on, or repay or repurchase or redeem any debt securities of the Guarantor
(including any Other Debentures) that rank pari passu with or junior in
right of payment to the Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Guarantor of the debt securities of any
subsidiary of the Guarantor (including Other Guarantees) if such guarantee ranks
pari passu or junior in
right of payment to the Debentures (other than (a) dividends or distributions in
shares of, or options, warrants, rights to subscribe for or purchase shares of,
common stock of the Guarantor, (b) any declaration of a dividend in connection
with the implementation of a stockholder’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, (c) payments under the Preferred Securities Guaranty,
(d) as a result of a reclassification of the Guarantor’s capital stock or the
exchange or the conversion of one class or series of the Guarantor’s capital
stock for another class or series of the Guarantor’s capital stock, (e) the
purchase of fractional interests in shares of the Guarantor’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, and (f) purchases or issuances of common
stock in connection with any of the Guarantor’s stock option, stock purchase,
stock loan or other benefit plans for its directors, officers or employees or
any of the Guarantor’s dividend reinvestment plans, in each case as now existing
or hereafter established or amended). Notwithstanding anything herein
to the contrary, in no event shall this provision be deemed to limit the
Guarontor from issuing shares of its common stock to any Person whether in a
public or private transaction.
Section
6.2 Ranking
This
Preferred Securities Guaranty will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to Senior
Debt (as defined in the Indenture), to the same extent and in the same manner
that the Debentures are subordinated to Senior Debt pursuant to the Indenture
(except as indicated below), it being understood that the terms of Article XV of
the Indenture shall apply to the obligations of the Guarantor under this
Preferred Securities Guaranty as if (x) such Article XV were set forth herein in
full and (y) such obligations were substituted for the term “Securities”
appearing in such Article XV, except that with respect to Section 15.03 of the
Indenture only, the term “Senior Debt” shall mean all liabilities of the
Guarantor, whether or not for money borrowed (other than obligations in respect
of Other Guarantees), (ii) pari passu with any Other
Guarantee (as defined herein) and (iii) senior to any obligations in respect of
any class of the Guarantor’s capital stock.
ARTICLE
VII
TERMINATION
Section
7.1 Termination
This
Preferred Securities Guaranty shall terminate and be of no further force and
effect (i) upon full payment of the Redemption Price (as defined in the Trust
Agreement) of all Preferred Securities, or (ii) upon liquidation of the Issuer,
the full payment of the amounts payable in accordance with the Trust Agreement
or the distribution of the Debentures to the Holders of all of the Preferred
Securities. Notwithstanding the foregoing, this Preferred Securities Guaranty
will continue to be effective or will be reinstated, as the case may be, if at
any time any Holder of Preferred Securities must restore payment of any sums
paid under the Preferred Securities or under this Preferred Securities
Guaranty.
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 Preferred Securities
Guaranty 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
Preferred Securities Guaranty 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 gross negligence or willful misconduct with respect to such
acts or omissions.
(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 by any Person as to matters the
Indemnified Person reasonably believes are within such other Person’s
professional or expert competence and who 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 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 and all loss, liability, damage, claim
or expense incurred without gross negligence or bad faith on its part, arising
out of or in connection with 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. The obligation to indemnify as set forth in this
Section 8.2 shall survive the termination of this Preferred Securities
Guaranty.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Successors and
Assigns
All
guarantees and agreements contained in this Preferred Securities Guaranty shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the 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
Preferred Securities Guaranty may only be amended with the prior approval of the
Holders of a Majority in liquidation amount of the Securities (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined). The provisions of Section 12.2 of the Trust
Agreement with respect to meetings of Holders of the Securities apply to the
giving of such approval.
Section
9.3 Notices
All
notices provided for in this Preferred Securities Guaranty shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, as follows:
(a) If
given to the Issuer, in care of the Administrative Trustee at the Issuer’s
mailing address set forth below (or such other address as the Issuer may give
notice of to the Holders of the Common Securities):
ServisFirst
Capital Trust II
c/o
ServisFirst Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
Attention:
Thomas A. Broughton III
Facsimile: (205)
949-0303
(b) If
given to the Preferred Securities Guaranty Trustee, at the Preferred Securities
Guaranty Trustee’s mailing address set forth below (or such other address as the
Preferred Securities Guaranty Trustee may give notice of to the Holders of the
Preferred Securities):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
DE 19890
Attention: Corporate
Trust Administration
Facsimile: (302)
636-4145
(c) 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
Preferred Securities):
ServisFirst
Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
Attention:
Thomas A. Broughton III
Facsimile:
(205) 949-0303
(d) If
given to any Holder of Preferred Securities, at the address set forth on the
books and records of the Issuer.
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
Preferred Securities Guaranty is solely for the benefit of the Holders of the
Preferred Securities and, is not separately transferable from the Preferred
Securities.
Section
9.5 Governing
Law
THIS
PREFERRED SECURITIES GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
[Signatures
on Following Page]
THIS
Preferred Securities Guaranty is executed as of the day and year first above
written.
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SERVISFIRST
BANCSHARES, INC., as
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Guarantor
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By:
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/s/Thomas A. Broughton
III
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Thomas
A. Broughton III
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President
and Chief Executive Officer
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WILMINGTON
TRUST COMPANY,
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as
Preferred Securities Guaranty Trustee
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By:
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/s/Christopher J.
Slaybaugh
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Authorized
Officer
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EXHIBIT
A
CERTIFICATE
TO TRUSTEE
Pursuant to Section 2.4(a)(iii) of the
Preferred Securities Guaranty between ServisFirst Bancshares, Inc., as the
Company (the “Company’), and Wilmington Trust Company, as Trustee, dated as of
March 15, 2010 (the “Preferred Securities Guaranty”), the undersigned hereby
certifies as follows:
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1.
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In
my capacity as an officer of the Company, I would normally have knowledge
of any default by the Company during the last fiscal year in the
performance of any covenants of the Company contained in the
Indenture.
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2.
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[To
my knowledge, the Company is not default in the performance of any
covenants contained in the
Indenture.
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or,
alternatively:
I am
aware of the default(s) in the performance of covenants in the Indentures, as
specified below.] PLEASE
PICK THE SENTENCE THAT APPLIES and DELETE THE ONE THAT DOES NOT.
Capitalized terms used herein, and not
otherwise defined herein, have the respective meanings ascribed to thereto in
the Indenture.
IN WITNESS WHEREOF, the undersigned has
executed this Officers’ Certificate.
Date: ____________,
20__
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Name:
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Title:
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Name:
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Title:
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