EX-4.4



 





Exhibit 4.4



 




GUARANTEE AGREEMENT




Between




M&T BANK CORPORATION

(as Guarantor)




and




THE BANK OF NEW YORK

(as Guarantee Trustee)




dated as of




January 31, 2008



 




 









 








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
	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)
	Section 311
	 	(a)	 	2.2(b)
	 
	 	(b)	 	2.2(b)
	Section 312
	 	(a)	 	2.2 (a)
	 
	 	(b)	 	2.2 (b)
	 
	 	(c)	 	Not Applicable
	Section 313
	 	(a)	 	2.3
	 
	 	(a) (4)	 	2.3
	 
	 	(b)	 	2.3
	 
	 	(c)	 	2.3
	 
	 	(d)	 	2.3
	Section 314
	 	(a)	 	2.4
	 
	 	(b)	 	Not Applicable
	 
	 	(c) (1)	 	2.5
	 
	 	(c) (2)	 	2.5
	 
	 	(c) (3)	 	2.5
	 
	 	(e)	 	1.1, 2.5, 3.2
	 
	 	(f)	 	2.1, 3.2
	Section 315
	 	(a)	 	3.1 (d)
	 
	 	(b)	 	2.7
	 
	 	(c)	 	3.1 (c)
	 
	 	(d)	 	3.1 (d)
	 
	 	(e)	 	Not Applicable
	Section 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)	 	8.2
	Section 317
	 	(a) (1)	 	Not Applicable
	 
	 	(a) (2)	 	Not Applicable
	 
	 	(b)	 	Not Applicable
	Section 318
	 	(a)	 	2.1





Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Guarantee Agreement.




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.1.
	 	Definitions	 	 	2	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	TRUST INDENTURE ACT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1.
	 	Trust Indenture Act; Application	 	 	5	 
	Section 2.2.
	 	List of Holders	 	 	6	 
	Section 2.3.
	 	Reports by the Guarantee Trustee	 	 	6	 
	Section 2.4.
	 	Periodic Reports to the Guarantee Trustee	 	 	6	 
	Section 2.5.
	 	Evidence of Compliance with Conditions Precedent	 	 	6	 
	Section 2.6.
	 	Events of Default; Waiver	 	 	6	 
	Section 2.7.
	 	Event of Default; Notice	 	 	7	 
	Section 2.8.
	 	Conflicting Interests	 	 	7	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	POWERS, DUTIES AND RIGHTS  OF THE GUARANTEE TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.1.
	 	Powers and Duties of the Guarantee Trustee	 	 	7	 
	Section 3.2.
	 	Certain Rights of Guarantee Trustee	 	 	9	 
	Section 3.3.
	 	Indemnity	 	 	10	 
	Section 3.4.
	 	Expenses	 	 	11	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	GUARANTEE TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.1.
	 	Guarantee Trustee; Eligibility	 	 	11	 
	Section 4.2.
	 	Appointment, Removal and Resignation of the Guarantee Trustee	 	 	11	 






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Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	GUARANTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.1.
	 	Guarantee	 	 	12	 
	Section 5.2.
	 	Waiver of Notice and Demand	 	 	12	 
	Section 5.3.
	 	Obligations Not Affected	 	 	13	 
	Section 5.4.
	 	Rights of Holders	 	 	14	 
	Section 5.5.
	 	Guarantee of Payment	 	 	14	 
	Section 5.6.
	 	Subrogation	 	 	14	 
	Section 5.7.
	 	Independent Obligations	 	 	14	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	COVENANTS AND SUBORDINATION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.1.
	 	Subordination	 	 	15	 
	Section 6.2.
	 	Pari Passu Guarantees	 	 	15	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	TERMINATION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.1.
	 	Termination	 	 	15	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.1.
	 	Successors and Assigns	 	 	15	 
	Section 8.2.
	 	Amendments	 	 	16	 
	Section 8.3.
	 	Notices	 	 	16	 
	Section 8.4.
	 	Benefit	 	 	17	 
	Section 8.5.
	 	Interpretation	 	 	17	 
	Section 8.6.
	 	Governing Law	 	 	18	 
	Section 8.7.
	 	Counterparts	 	 	18	 
	Section 8.8.
	 	Waiver of Jury Trial	 	 	18	 
	Section 8.9.
	 	Force Majeure	 	 	18	 







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GUARANTEE AGREEMENT




     This GUARANTEE AGREEMENT, dated as of January 31, 2008 is executed and delivered by M&T BANK
CORPORATION, a New York corporation (the “Guarantor”), having its principal office at One M&T
Plaza, Buffalo, New York 14203 and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined herein) from time to
time of the Capital Securities (as defined herein) of M&T Capital Trust IV, a Delaware statutory
trust (the “Issuer Trust”).



     WHEREAS, pursuant to an Amended and Restated Trust Agreement (the “Trust Agreement”), dated as
of January 31, 2008, among the Guarantor, as Depositor, The Bank of New York, as Property Trustee
(the “Property Trustee”), BNYM (Delaware), as Delaware Trustee (the “Delaware Trustee”)
(collectively, the “Issuer Trustees”) and the Holders from time to time of preferred undivided
beneficial interests in the assets of the Issuer Trust, the Issuer Trust is issuing up to
$350,000,000 aggregate Liquidation Amount (as defined herein) of its 8.500% Enhanced Trust
Preferred Securities (Liquidation Amount $25 per Capital Security) (the “Initial Capital
Securities”) and after the date hereof, the Issuer Trust may issue pursuant to the Trust Agreement
additional Enhanced Trust Preferred Securities ( the “Additional Capital Securities, and together
with the “Initial Capital Securities”, the “Capital Securities”), representing preferred undivided
beneficial interests in the assets of the Issuer Trust and having the terms set forth in the Trust
Agreement;



     WHEREAS, the 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 (as defined
herein), will be used to purchase the Junior Subordinated Debentures due January 31, 2068 (as
defined in the Trust Agreement) (the “Junior Subordinated Debentures”) of the Guarantor which will
be deposited with The Bank of New York, as Property Trustee under the Trust Agreement, as trust
assets; and



     WHEREAS, as incentive for the Holders to purchase Capital Securities, the Guarantor desires
irrevocably and unconditionally to agree, to the extent set forth herein, to pay to the Holders of
the 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 Capital Securities by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, and intending to be legally
bound hereby, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders from time to time of the Capital Securities.



 









 





ARTICLE I




DEFINITIONS




Section 1.1. Definitions.




     As used in this Guarantee Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Trust Agreement or, if not defined
therein, in the Indenture as in effect on the date hereof.



     “Additional Amount” has the meaning specified in the Trust Agreement.



     “Additional Capital Securities” shall have the meaning specified in the first recital of this
Guarantee 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.



     “Capital Securities” shall have the meaning specified in the first recital of this Guarantee
Agreement.



     “Common Securities” means the securities representing common undivided beneficial interests in
the assets of the Issuer Trust.



     “Delaware Trustee” shall have the meaning specified in the first recital of this Guarantee
Agreement.



     “Distributions” means preferential cumulative cash distributions accumulating from January 31,
2008 and payable quarterly in arrears on March 15, June 15, September 15, and December 15 of each
year, commencing March 15, 2008 at the annual rate of 8.500% of the Liquidation Amount.



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



     “Guarantee Agreement” means this Guarantee Agreement, as modified, amended or supplemented
from time to time.



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     “Guarantee Payments” means the following payments or distributions, without duplication, with
respect to the Capital Securities, to the extent not paid or made by or on behalf of the Issuer
Trust: (a) any accumulated and unpaid Distributions (as defined in the Trust Agreement) required to
be paid on the Capital Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time, (b) the Redemption Price, with respect to the 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 (c) upon a voluntary or involuntary termination,
winding-up or liquidation of the Issuer Trust, unless Junior Subordinated Debentures are
distributed to the Holders, the lesser of (i) the Liquidation Amount 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 (ii) the amount of assets of the Issuer Trust
remaining available for distribution to Holders in liquidation of the Issuer Trust (in either case,
the “Liquidation Distribution”).



     “Guarantee Trustee” means The Bank of New York, 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
Capital Securities; provided, however, that, in determining whether the holders of the requisite
percentage of 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.



     “Indenture” means the Junior Subordinated Indenture dated as of January 31, 2008 between M&T
Bank Corporation and The Bank of New York, as trustee, as amended and supplemented by the First
Supplemental Indenture thereto, dated as of January 31, 2008, as the same may be modified, amended
or supplemented from time to time.



     “Initial Capital Securities” shall have the meaning specified in the first recital of this
Guarantee Agreement.



     “Issuer Trust” shall have the meaning specified in the first paragraph of this Guarantee
Agreement.



     “Issuer Trustees” shall have the meaning specified in the first recital of this Guarantee
Agreement.



     “Junior Subordinated Debentures” shall have the meaning specified in the first recital of this
Guarantee Agreement.



-3-









 





     “Like Amount” means (a) with respect to a redemption of Capital Securities, Capital Securities
having a Liquidation Amount equal to the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, the proceeds of which will be used to
pay the Redemption Price of such Capital Securities, (b) with respect to a distribution of Junior
Subordinated Debentures to Holders of Capital 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 Capital Securities of the Holder to whom such Junior Subordinated
Debentures are distributed, and (c) with respect to any distribution of an Additional Amount to
Holders of Capital Securities, Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Capital Securities in respect of which such distribution is made.



     “Liquidation Amount” means the stated amount of $25 per Capital Security.



     “Majority in Liquidation Amount of the Capital Securities” means, except as provided by the
Trust Indenture Act, Capital Securities representing more than 50% of the aggregate Liquidation
Amount of all then outstanding Capital Securities issued by the Issuer Trust.



     “Officers’ Certificate” means, with respect to any Person, a certificate signed by the
Chairman of the Board, Chief Executive Officer, President or a Vice President, and by the Chief
Financial Officer, Treasurer, an Associate Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of such Person, and delivered to the Guarantee Trustee. Any Officers’
Certificate delivered with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement 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.




     “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.



-4-









 





     “Property Trustee” shall have the meaning specified in the first recital of this Guarantee
Agreement.



     “Redemption Date” means, with respect to any Capital Security to be redeemed, the date fixed
for such redemption by or pursuant to the Trust Agreement; provided that each Junior Subordinated
Debenture Redemption Date (as such term is defined in the Indenture) and the stated maturity of the
Junior Subordinated Debentures shall be a Redemption Date for a Like Amount of Capital Securities.



     “Redemption Price” shall have the meaning specified in the Trust Agreement.



     “Responsible Officer” means, when used with respect to the Guarantee Trustee, any officer
assigned to the Corporate Trust Office, including any managing director, principal, vice president,
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 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 Section 4.1.



     “Trust Agreement” means the Amended and Restated Trust Agreement, dated January 31, 2008,
executed by M&T Bank Corporation, as Depositor, BNYM (Delaware), as Delaware Trustee, and The Bank
of New York, as Property Trustee and subscribed to and accepted by the Administrators.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, or any successor statute, in each case as amended from time to time.



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.



-5-









 





Section 2.2. List of Holders.




     (a) In the event that the Guarantee Trustee is not also acting as the Securities Registrar,
the Guarantor will furnish or cause to be furnished to the Guarantee Trustee:





               (i) not less than one day nor more than 15 days prior to every Interest Payment Date,
a list, in such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders as of such date; 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 Section 312(b) of the Trust
Indenture Act.



Section 2.3. Reports by the Guarantee Trustee.




     Within 60 days of May 15 of each year commencing May 15, 2008, 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. 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.



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.



Section 2.6. Events of Default; Waiver.




     The Holders of a Majority in Liquidation Amount of the 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



-6-









 







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, notices of all Events of Default
known to the Guarantee Trustee, unless such Events of Default have 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 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
to a Holder exercising his or her rights pursuant to Section 5.4(d) or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee hereunder. The right, title and interest of the Guarantee Trustee, as such,
hereunder shall automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.



     (b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce
this Guarantee Agreement for the benefit of the Holders.



-7-









 





     (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 be obligated to perform only such duties as
are specifically set forth in this Guarantee Agreement (including pursuant to Section 2.1), and no
implied covenants shall be read into this Guarantee Agreement against the Guarantee Trustee. If an
Event of Default 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 Agreement 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, 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 Guarantee Trustee shall be determined
solely by the express provisions of this Guarantee Agreement (including pursuant to
Section 2.1), 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 Agreement (including pursuant to Section 2.1), and no implied covenants
or obligations, shall be read into this Guarantee Agreement 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 Agreement; but in the case of any such certificates or opinions that by
any provision hereof or of the Trust Indenture Act are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Guarantee Agreement;




          (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 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 direction of the Holders of
not less than a Majority in Liquidation Amount of the Capital Securities relating to the
time, method and place of conducting any proceeding for



-8-









 






any remedy available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and




          (iv) no provision of this Guarantee Agreement 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 or liability is not assured to it under the terms of this Guarantee Agreement or
adequate indemnity against such risk or liability is not reasonably assured to it.



Section 3.2. Certain Rights of 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 reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;




          (ii) any direction or act of the Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by an Officers’ Certificate unless otherwise prescribed
herein;




          (iii) whenever, in the administration of this Guarantee Agreement, the Guarantee
Trustee shall deem it desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers’ Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the Guarantor;




          (iv) the Guarantee Trustee may consult with legal counsel, and the advice or opinion
of such legal counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor or any of its Affiliates and may be one
of its employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction;




          (v) the Guarantee Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee



-9-









 






Trustee such security and indemnity satisfactory to it, against the costs, expenses
(including attorneys’ fees and expenses) 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 Guarantee Trustee;




          (vi) the Guarantee Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit;




          (vii) the Guarantee Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or attorneys, and
the Guarantee Trustee shall not be responsible for any negligence or willful misconduct on
the part of any such agent or attorney appointed with due care by it hereunder. Nothing
herein shall be construed as limiting or restricting the right of the Guarantor to bring
any action directly against any agent or attorney appointed by the Guarantee Trustee for
any negligence or willful misconduct on the part of such agent or attorney; and




          (viii) whenever in the administration of this Guarantee Agreement the Guarantee
Trustee shall deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received and (C) shall be fully
protected in relying upon or acting in accordance with such instructions.



     (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation
on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which
the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.



Section 3.3. Indemnity.




     The Guarantor agrees to indemnify the Guarantee Trustee, its directors, officers, employees
and agents for, and to hold them harmless against, any loss, liability, claim, damage or expense
incurred without negligence, willful misconduct or bad faith on the part of the Guarantee Trustee,
its directors, officers, employees and agents, arising out of or in connection with the acceptance
or administration of this Guarantee Agreement, including the costs and expenses of defending
against any claim or liability in connection



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with the exercise or performance of any of its powers or duties hereunder. The Guarantee
Trustee will not claim or exact any lien or charge on any Guarantee Payments as a result of any
amount due to it under this Guarantee Agreement. The obligation to indemnify as set forth in this
Section 3.3 shall survive the termination of this Guarantee Agreement and the resignation or
removal of the Guarantee Trustee.



Section 3.4. Expenses.




     The Guarantor shall from time to time reimburse the Guarantee Trustee for its reasonable
expenses and costs (including reasonable attorneys’ or agents’ fees) incurred in connection with
the performance of its duties hereunder.



ARTICLE IV




GUARANTEE TRUSTEE




Section 4.1. Guarantee Trustee; Eligibility.




     (a) There shall at all times be a Guarantee Trustee which shall:




          (i) not be an Affiliate of the Guarantor; and




          (ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000, and shall be a corporation
meeting the requirements of Section 310(a) of the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority, then, for the purposes of this Section and to the
extent permitted by the Trust Indenture Act, 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 Guarantee Trustee shall cease to be eligible to so act under Section
4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(b).



     (c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.



Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.




     (a) No resignation or removal of the Guarantee Trustee and no appointment of a Successor
Guarantee Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the Successor Guarantee Trustee by written instrument



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executed by the Successor Guarantee Trustee and delivered to the Holders and the Guarantee
Trustee.



     (b) Subject to the immediately preceding paragraph, a Guarantee Trustee may resign at any time
by giving written notice thereof to the Holders. The Guarantor shall appoint a successor. If the
instrument of acceptance by the Successor Guarantee Trustee shall not have been delivered to the
Guarantee Trustee within 60 days after the giving of such notice of resignation, the Guarantee
Trustee may petition, at the expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.



     (c) The Guarantee Trustee may be removed for cause at any time by Act (within the meaning of
Section 6.8 of the Trust Agreement) of the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, delivered to the Guarantee Trustee.



     (d) If the Guarantor shall fail to appoint a successor, or if a Guarantee Trustee shall be
removed or become incapable of acting as Guarantee Trustee, or if any vacancy shall occur in the
office of any Guarantee Trustee for any cause, the Holders of the Capital Securities, by Act of the
Holders of record of not less than 25% in aggregate Liquidation Amount of the Capital Securities
then outstanding delivered to such Guarantee Trustee, shall promptly appoint a successor Guarantee
Trustee. If no Successor Guarantee Trustee shall have been so appointed by the Holders of the
Capital Securities and such appointment accepted by the Successor Guarantee Trustee, any Holder, on
behalf of himself and all others similarly situated, may petition any court of competent
jurisdiction for the appointment of a Successor Guarantee Trustee.



ARTICLE V




GUARANTEE




Section 5.1. Guarantee.




     The Guarantor irrevocably and unconditionally agrees to pay in full on a subordinated basis as
set forth in Section 6.1 hereof to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set—off or counterclaim which the Issuer Trust may have or assert, except the
defense of payment. The Guarantor’s obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer
Trust to pay such amounts to the Holders. The Guarantor shall give prompt written notice to the
Guarantee Trustee in the event it makes any direct payment hereunder.



Section 5.2. Waiver of Notice and Demand.




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     The Guarantor hereby waives notice of acceptance of the Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.



Section 5.3. Obligations Not Affected.




     The obligations, covenants, agreements and duties of the Guarantor under this Guarantee
Agreement 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 Trust of any express or implied agreement, covenant, term or condition relating to
the Capital Securities to be performed or observed by the Issuer Trust;



     (b) the extension of time for the payment by the Issuer Trust of all or any portion of the
Distributions (other than an extension of time for payment of Distributions that results from the
extension of any interest payment period on the Junior Subordinated Debentures as so provided in
the Indenture), Redemption Price, Liquidation Distribution or any other sums payable under the
terms of the Capital Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital Securities;



     (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 Capital Securities, or any action on the part of the Issuer Trust granting indulgence
or extension of any kind;



     (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the
Issuer Trust or any of the assets of the Issuer Trust;



     (e) any invalidity of, or defect or deficiency in, the Capital 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 (other than payment of the underlying obligation), it being the
intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.



     There shall be no obligation of the Holders to give notice to, or obtain the consent of, the
Guarantor with respect to the happening of any of the foregoing.



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Section 5.4. Rights of Holders.




     The Guarantor expressly acknowledges that: (a) this Guarantee Agreement will be deposited with
the Guarantee Trustee to be held for the benefit of the Holders; (b) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (c) the Holders of a Majority
in Liquidation Amount of the Capital Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or exercising any trust or power conferred upon the Guarantee Trustee under
this Guarantee Agreement; and (d) any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer Trust or any other Person.



Section 5.5. Guarantee of Payment.




     This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee
Agreement will not be discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer Trust) or upon the distribution of Junior
Subordinated Debentures to Holders as provided in the Trust Agreement.



Section 5.6. Subrogation.




     The Guarantor shall be subrogated to all rights (if any) of the Holders against the Issuer
Trust in respect of any amounts paid to the Holders by the Guarantor under this Guarantee
Agreement; provided, however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee Agreement, if at the time of any such payment, any amounts are due and
unpaid under this Guarantee Agreement. 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 Trust with respect to the Capital Securities and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.





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ARTICLE VI




COVENANTS AND SUBORDINATION




Section 6.1. Subordination.




     This Guarantee Agreement will constitute an unsecured obligation of the Guarantor and will
rank subordinate and junior in right of payment to all Senior Indebtedness of the Guarantor to the
extent and in the manner set forth in the Indenture with respect to the Junior Subordinated
Debentures, and the provisions of Article XIII of the Indenture will apply, mutatis mutandis, to
the obligations of the Guarantor hereunder. The obligations of the Guarantor hereunder do not
constitute Senior Indebtedness of the Guarantor.



Section 6.2. Pari Passu Guarantees.




     The obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with any
similar guarantee agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by the Issuer Trust and with any other security, guarantee or other
obligation that is expressly stated to rank pari passu with the obligations of the Guarantor under
this Guarantee Agreement.



ARTICLE VII




TERMINATION




Section 7.1. Termination.




     This Guarantee Agreement shall terminate and be of no further force and effect upon (a) full
payment of the Redemption Price of all Capital Securities, (b) the distribution of Junior
Subordinated Debentures to the Holders in exchange for all of the Capital Securities or (c) full
payment of the amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any time any Holder is
required to repay any sums paid with respect to the Capital Securities or this Guarantee Agreement.



ARTICLE VIII




MISCELLANEOUS




Section 8.1. Successors and Assigns.




     All guarantees and agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Capital Securities then outstanding. Except in connection with a consolidation,
merger or sale involving the Guarantor that is permitted under Article VIII of the Indenture and
pursuant to which the assignee agrees in writing to perform the Guarantor’s obligations hereunder,
the Guarantor shall not assign its



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obligations hereunder, and any purported assignment that is not in accordance with these
provisions shall be void.



Section 8.2. Amendments.




     Except with respect to any changes that do not materially adversely affect the rights of the
Holders (in which case no consent of the Holders will be required), this Guarantee Agreement may
only be amended with the prior approval of the Holders of not less than a Majority in Liquidation
Amount of the Capital Securities. The provisions of Article VI of the Trust Agreement concerning
meetings of the Holders shall apply to the giving of such approval.



Section 8.3. Notices.




     Any notice, request or other communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and delivered, telecopied (confirmed by
delivery of the original) or mailed by first class mail as follows:



     (a) if given to the Guarantor, to the address or facsimile number set forth below or such
other address or facsimile number or to the attention of such other Person as the Guarantor may
give notice to the Holders:


M&T Bank Corporation

One M&T Plaza

Buffalo, NY 14203

Facsimile No.: (716) 842—5177

Attention: Randall A. Krolewicz




     (b) if given to the Issuer Trust, in care of the Guarantee Trustee, at the Issuer Trust’s (and
the Guarantee Trustee’s) address set forth below or such other address or telecopy number or to the
attention of such other Person as the Guarantee Trustee on behalf of the Issuer Trust may give
notice to the Holders:


M&T Capital Trust IV

c/o M&T Bank Corporation

One M&T Plaza

Buffalo, NY 14203

Facsimile No.: (716) 842—5177

Attention: Randall A. Krolewicz





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     (c) if given to the Guarantee Trustee:



The Bank of New York

101 Barclay Street,

New York, New York 10286

Facsimile No.: (212) 815-5707

Attention: Corporate Trust Administration




     (d) if given to any Holder, at the address set forth on the books and records of the Issuer
Trust.



     All notices hereunder 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 8.4. Benefit.




     This Guarantee Agreement is solely for the benefit of the Holders and is not separately
transferable from the Capital Securities.



Section 8.5. Interpretation.




     In this Guarantee Agreement, unless the context otherwise requires:



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



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



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



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



     (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee
Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise
requires;



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



     (g) the masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.



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Section 8.6. Governing Law.




     THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.



Section 8.7. Counterparts.




     This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



Section 8.8. Waiver of Jury Trial.




     EACH OF THE COMPANY AND THE GUARANTEE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.



Section 8.9. Force Majeure.




     In no event shall the Guarantee Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Guarantee Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.



[SIGNATURES APPEAR ON THE FOLLOWING PAGE]




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     THIS GUARANTEE AGREEMENT is executed as of the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	M&T BANK CORPORATION

as Guarantor	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Ayan Das Gupta	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Ayan D. Gupta	 	 
	 

	 	 	 	 	 	Title: Group Vice President
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK

as Guarantee Trustee
and not in its individual capacity	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Scott I. Klein	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Scott I. Klein	 	 
	 

	 	 	 	 	 	Title: Assistant Treasurer