Exhibit 4.16


 


GUARANTEE AGREEMENT


 


Between


 


SCBT FINANCIAL CORPORATION


as Guarantor,


 


and


 


[WILMINGTON TRUST COMPANY]


as Guarantee Trustee,


 


Dated as of          


 

















 


Certain Sections of this Guarantee Agreement relating to Sections 310
through 318 of the Trust Indenture Act of 1939:


 


	
  Trust Indenture

  	
   

  	
  Guarantee Agreement

  
	
  Act Section

  	
   

  	
  Section

  
	
  310 (a)(1)

  	
   

  	
  4.1 (a)

  
	
  (a)(2)

  	
   

  	
  4.1 (a)

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  2.8, 4.1 (c)

  
	
  311(a)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  312(a)

  	
   

  	
  2.2 (a)

  
	
  (b)

  	
   

  	
  2.2 (b)

  
	
  (c)

  	
   

  	
  Not Applicable

  
	
  313(a)

  	
   

  	
  2.3

  
	
  (a)(4)

  	
   

  	
  2.3

  
	
  (b)

  	
   

  	
  2.3

  
	
  (c)

  	
   

  	
  2.3

  
	
  (d)

  	
   

  	
  2.3

  
	
  314(a)

  	
   

  	
  2.4

  
	
  (b)

  	
   

  	
  2.4

  
	
  (c)(1)

  	
   

  	
  2.5

  
	
  (c)(2)

  	
   

  	
  2.5

  
	
  (c)(3)

  	
   

  	
  2.5

  
	
  (e)

  	
   

  	
  1.1, 2.5, 3.2

  
	
  315(a)

  	
   

  	
  3.1 (d)

  
	
  (b)

  	
   

  	
  2.7

  
	
  (c)

  	
   

  	
  3.1 (c)

  
	
  (d)

  	
   

  	
  3.1 (d)

  
	
  (e)

  	
   

  	
  Not Applicable

  
	
  316(a)

  	
   

  	
  1.1, 2.6, 5.4

  
	
  (a)(1)(A)

  	
   

  	
  5.4

  
	
  (a)(1)(B)

  	
   

  	
  5.4

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  5.3

  
	
  (c)

  	
   

  	
  Not Applicable

  
	
  317(a)(1)

  	
   

  	
  Not Applicable

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  318(a)

  	
   

  	
  2.1

  



 


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


 


i

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS

  	
   

  	
  2

  
	
   

  	
  Section 1.1. Definitions

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II
  TRUST INDENTURE ACT

  	
   

  	
  4

  
	
   

  	
  Section 2.1. Trust Indenture Act; Application

  	
   

  	
  4

  
	
   

  	
  Section 2.2. List of Holders

  	
   

  	
  5

  
	
   

  	
  Section 2.3. Reports by the Guarantee Trustee

  	
   

  	
  5

  
	
   

  	
  Section 2.4. Periodic Reports to the Guarantee Trustee

  	
   

  	
  5

  
	
   

  	
  Section 2.5. Evidence of Compliance with Conditions Precedent

  	
   

  	
  5

  
	
   

  	
  Section 2.6. Events of Default; Waiver

  	
   

  	
  6

  
	
   

  	
  Section 2.7. Event of Default; Notice

  	
   

  	
  6

  
	
   

  	
  Section 2.8. Conflicting Interests

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III
  POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE

  	
   

  	
  6

  
	
   

  	
  Section 3.1. Powers and Duties of the Guarantee Trustee

  	
   

  	
  6

  
	
   

  	
  Section 3.2. Certain Rights of Guarantee Trustee

  	
   

  	
  8

  
	
   

  	
  Section 3.3. Indemnity

  	
   

  	
  9

  
	
   

  	
  Section 3.4. Expenses

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV
  GUARANTEE TRUSTEE

  	
   

  	
  10

  
	
   

  	
  Section 4.1. Guarantee Trustee; Eligibility

  	
   

  	
  10

  
	
   

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

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V
  GUARANTEE

  	
   

  	
  11

  
	
   

  	
  Section 5.1. Guarantee

  	
   

  	
  11

  
	
   

  	
  Section 5.2. Waiver of Notice and Demand

  	
   

  	
  11

  
	
   

  	
  Section 5.3. Obligations Not Affected

  	
   

  	
  12

  
	
   

  	
  Section 5.4. Rights of Holders

  	
   

  	
  12

  
	
   

  	
  Section 5.5. Guarantee of Payment

  	
   

  	
  13

  
	
   

  	
  Section 5.6. Subrogation

  	
   

  	
  13

  
	
   

  	
  Section 5.7. Independent Obligations

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI COVENANTS AND SUBORDINATION

  	
   

  	
  13

  
	
   

  	
  Section 6.1. Subordination

  	
   

  	
  13

  
	
   

  	
  Section 6.2. Pari Passu Guarantees

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII TERMINATION

  	
   

  	
  14

  
	
   

  	
  Section 7.1. Termination

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII MISCELLANEOUS

  	
   

  	
  14

  
	
   

  	
  Section 8.1. Successors and Assigns

  	
   

  	
  14

  
	
   

  	
  Section 8.2. Amendments

  	
   

  	
  14

  



 


ii

















 


	
   

  	
  Section 8.3. Notices

  	
   

  	
  15

  
	
   

  	
  Section 8.4. Benefit

  	
   

  	
  16

  
	
   

  	
  Section 8.5. Interpretation

  	
   

  	
  16

  
	
   

  	
  Section 8.6. Governing Law

  	
   

  	
  16

  
	
   

  	
  Section 8.7. Counterparts

  	
   

  	
  17

  
	
   

  	
  Section 8.8. Force Majeure

  	
   

  	
  17

  



 


iii

















 


GUARANTEE AGREEMENT


 


THIS GUARANTEE AGREEMENT, dated as of
      , 2009, is executed and delivered by SCBT
Financial Corporation, a South Carolina corporation (the “Guarantor”),
having its principal office at 520 Gervais Street, Columbia, South Carolina
29201 and [WILMINGTON TRUST COMPANY, a Delaware banking corporation], as
trustee (the “Guarantee Trustee”), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Capital Securities (as
defined herein) of SCBT Capital Trust IV, a Delaware statutory trust (the “Issuer
Trust”).


 


Pursuant to an Amended and Restated Trust Agreement (the “Trust
Agreement”), dated of even date herewith, among the Guarantor, as
Depositor, [Wilmington Trust Company], as Property Trustee (the “Property
Trustee”), [Wilmington Trust Company], as Delaware Trustee (the “Delaware
Trustee,” and together with the Property Trustee, collectively, the “Issuer
Trustees”), the Administrators named therein and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer Trust, the
Issuer Trust is issuing up to $[Amount] aggregate Liquidation Amount (as
defined herein) of its Preferred Capital Securities (the “Preferred Capital
Securities”), representing preferred undivided beneficial interests in the
assets of the Issuer Trust and having the terms set forth in the Trust
Agreement;


 


The Preferred Capital Securities will be issued by the Issuer Trust and
the proceeds thereof, together with the proceeds from the issuance of the
Issuer Trust’s Common Securities (the “Common Securities”), representing
common undivided beneficial interests in the assets of the Issuer Trust, to the
Guarantor, will be used to purchase the Junior Subordinated Debentures due
[Maturity Date] (the “Junior Subordinated Debentures”) of the Guarantor,
which will be deposited with [Wilmington Trust Company], as Property Trustee
under the Trust Agreement, as trust assets; and


 


As an inducement to the Holders to purchase the Preferred Capital
Securities, the Guarantor is willing to irrevocably and unconditionally agree,
to the extent set forth herein, to pay to the Holders of the Preferred Capital
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the purchase of the Preferred
Capital Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor, intending to be
legally bound hereby, executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Preferred Capital Securities.


 


1

















 


ARTICLE


 


I DEFINITIONS


 


Section 1.1. Definitions.


 


As used in this Guarantee Agreement, the terms set forth below shall
have the following meanings. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Trust Agreement.


 


“Affiliate” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
“control” when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.


 


“Event of Default” means (i) a default by the Guarantor in
any of its payment obligations under this Guarantee Agreement, or (ii) a
default by the Guarantor in any other obligation.


 


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


 


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


 


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


 


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


 


“Holder” means any holder, as registered on the books and
records of the Issuer Trust, of any Preferred Capital Securities; provided, however, that,
in determining whether the holders of the requisite percentage of Preferred
Capital Securities have given any request, notice, consent or waiver hereunder,
“Holder” shall not include the Guarantor, the Guarantee Trustee, or any
Affiliate of the Guarantor or the Guarantee Trustee.


 


2

















 


“Indenture” means the Junior Subordinated Indenture, dated as of
      , 20      ,
between the Guarantor and [Wilmington Trust Company], as trustee, as it may be
modified, amended or supplemented from time to time to provide for the Junior
Subordinated Debentures.


 


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


 


“Like Amount” means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount equal to that
portion of the principal amount of Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Common Securities
and to the Preferred Capital Securities based upon the relative Liquidation
Amounts of such classes and (b) with respect to a distribution of Junior
Subordinated Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.


 


“Liquidation Amount” means the stated amount of
$[      ] per Preferred Capital Security and
$[      ] per Common Security.


 


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


 


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


 


(a)                                  a
statement by each officer signing the Officers’ Certificate that such officer
has read the covenant or condition and the definitions relating thereto;


 


(b)                                 a
brief statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officers’ Certificate;


 


(c)                                  a
statement that such officer has made such examination or investigation as, in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(d)                                 a
statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.


 


3

















 


“Person” means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.


 


“Redemption Date” means, with respect to any Preferred Capital
Security to be redeemed, the date fixed for such redemption by or pursuant to
the Trust Agreement; provided that
each Debenture Redemption Date and the stated maturity of the Junior
Subordinated Debentures shall be a Redemption Date for a Like Amount of
Preferred Capital Securities, including, but not limited to any date of
redemption pursuant to the occurrence of any Special Event.


 


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


 


“Responsible Officer” means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust Office,
including any managing director, vice president, principal, assistant vice
president, assistant treasurer, assistant secretary or any other officer of the
Guarantee Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for
the administration of this Guarantee Agreement, and also, with respect to a
particular matter, any other officer of the Guarantee Trustee to whom such
matter is referred because of such officer’s knowledge of and familiarity with
the particular subject.


 


“Senior Indebtedness” shall have the meaning specified in the
Indenture.


 


“Successor Guarantee Trustee” means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Article IV
hereof.


 


“Trust Agreement” has the meaning specified in the recitals
hereto.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939 (15
U.S.C. §§ 77aaa-77bbbb), as amended.


 


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


 


ARTICLE II


 


TRUST INDENTURE ACT


 


Section 2.1. Trust Indenture Act;
Application.


 


If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Guarantee Agreement, the provision of the Trust Indenture Act shall
control. If any provision of this Guarantee Agreement modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Guarantee Agreement as so
modified or excluded, as the case may be.


 


4














 


Section 2.2. List of Holders.


 


(a)                                  The
Guarantor will furnish or cause to be furnished to the Guarantee Trustee a list
of Holders at the following times:


 


(i)                                     [quarterly], not
more than 15 days after the last day of [February, May, August and
November], in each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders as of the last
day of [February, May, August and November], as applicable; and


 


(ii)                                  at such other times
as the Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished.


 


(b)                                 The
Guarantee Trustee shall comply with the requirements of Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.


 


Section 2.3. Reports by the Guarantee
Trustee.


 


Not later than [January 31] of each year, commencing [January 31,
      ], the Guarantee Trustee shall provide to
the Holders such reports, if any, as are required by Section 313 of the
Trust Indenture Act in the form and in the manner provided by Section 313
of the Trust Indenture Act. If this Guarantee Agreement shall have been
qualified under the Trust Indenture Act, the Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture
Act.


 


Section 2.4. Periodic Reports to the
Guarantee Trustee.


 


The Guarantor shall provide to the Guarantee Trustee and the Holders
such documents, reports and information, if any, as required by Section 314
of the Trust Indenture Act and the compliance certificate required by Section 314
of the Trust Indenture Act, in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, provided that such
documents, reports and information shall be required to be provided to the
Securities and Exchange Commission only if this Guarantee Agreement shall have
been qualified under the Trust Indenture Act.


 


Section 2.5. Evidence of Compliance with
Conditions Precedent.


 


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


 


5

















 


Section 2.6. Events of Default; Waiver.


 


The Holders of a Majority in Liquidation Amount of the Preferred
Capital Securities may, by vote, on behalf of the Holders, waive any past Event
of Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.


 


Section 2.7. Event of Default; Notice.


 


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


 


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


 


Section 2.8. Conflicting Interests.


 


The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.


 


ARTICLE III


 


POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE


 


Section 3.1. Powers and Duties of the
Guarantee Trustee.


 


(a)                                  This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement to any Person except a Holder exercising his or her rights pursuant
to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance
by such Successor Guarantee Trustee of 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.


 


6

















 


(c)                                  The
Guarantee Trustee, before the occurrence of any Event of Default and after the
cure or waiver 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


 


(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, on their face, 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, on their
face, 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 Preferred Capital Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and


 


7

















 


(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.


 


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 (including
e-mail, facsimile or other electronic transmission) reasonably believed by it
to be genuine and to have been signed, sent or presented by the proper party or
parties (without being required to determine the correctness of any fact stated
therein).


 


(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 written 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 Trustee such security
and indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including reasonable 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; provided that nothing contained in this Section 3.2(a)(v) shall
be taken to relieve the Guarantee Trustee, upon occurrence of an Event of


 


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Default, of its obligation to exercise the rights and powers vested in
it by this Guarantee Agreement.


 


(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 and shall incur no liability of any kind by reason of
such inquiry or investigations.


 


(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.


 


(viii)                        The Guarantee Trustee shall not
be liable for any action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it hereunder.


 


(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 (which for
purposes of this Section 3.3 shall include its officers, directors,
employees and agents) for, and to hold it harmless against, any loss, liability
or expense incurred without negligence, willful misconduct or bad faith on the
part of the Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection 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 provisions of this Section 3.3 shall survive the
termination of this Guarantee Agreement and the resignation or removal of the
Guarantee Trustee.


 


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Section 3.4. Expenses.


 


The Guarantor shall from time to time reimburse the Guarantee Trustee
for its 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.


 


(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)                                  Subject
to Section 4.2(b), the Guarantee Trustee may be removed by the Guarantor (i) without
cause at any time when an Event of Default has not occurred and is not
continuing and (ii) at any time when the Guarantee Trustee ceases to be
eligible to act as the Guarantee Trustee pursuant to Section 4.1 hereof or
becomes incapable of acting or is adjudged a bankrupt or insolvent or a
receiver of the Guarantee Trustee or of its property is appointed or any public
officer takes charge or control of the Guarantee Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation.


 


(b)                                 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 executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.


 


(c)                                  Subject
to Section 4.2(b), a Guarantee Trustee may resign at any time by giving
written notice thereof to the Holders. The Guarantee Trustee shall appoint a
successor by


 


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requesting from at least three Persons meeting the eligibility
requirements hereunder, such Persons’ expenses and charges to serve as the
Guarantee Trustee, and selecting the Person who agrees to the lowest expenses
and charges. If the instrument of acceptance by the Successor Guarantee Trustee
shall not have been delivered to the Guarantee Trustee within 30 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 that meets the eligibility
requirements hereunder.


 


(d)                                 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 Preferred Capital Securities, delivered
to the Guarantee Trustee.


 


(e)                                  If
a resigning Guarantee Trustee 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 Preferred Capital Securities, by Act of the
Holders of record of not less than 25% in aggregate Liquidation Amount of the
Preferred 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 Preferred
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 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.


 


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.


 


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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 Preferred 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 an election by the Depositor to defer any interest payment 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 Preferred Capital Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection with, the
Preferred 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 Preferred 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, conservatorship, 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 Preferred 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.


 


Section 5.4. Rights of Holders.


 


The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in Liquidation Amount of the Preferred Capital Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy


 


12

















 


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 (iv) 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
Preferred 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.


 


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 (as defined in the Indenture) of the Guarantor to the same
extent and in the same 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.


 


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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 Trust 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 (i) full payment of the Redemption Price of all Outstanding
Preferred Capital Securities, (ii) the distribution of Junior Subordinated
Debentures to the Holders in exchange for all of the Outstanding Preferred
Capital Securities or (iii) 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 restore payment of any sums paid under the
Preferred 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, conservators, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred 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 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 Preferred Capital Securities. The provisions of Article VI of the
Trust Agreement concerning meetings of the Holders shall apply to the giving of
such approval.


 


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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 telecopy number set forth below or such other
address or telecopy number or to the attention of such other Person as the
Guarantor may give notice to the Holders:


 


SCBT Financial Corporation


520 Gervais Street


Columbia, South Carolina 29201


Facsimile No.:


Attention:


 


(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:


 


SCBT Capital Trust IV


c/o SCBT Financial Corporation


520 Gervais Street


Columbia, South Carolina 29201


Facsimile No.:
[                    ]


Attention:


 


with a copy to:


 


[Wilmington Trust Company


Rodney Square North


1100 North Market Street


Wilmington, Delaware 19890-0001


Facsimile No.: (302) 636-4140


Attention: Corporate Trust Administration]


 


(c)           if given to the
Guarantee Trustee:


 


[Wilmington Trust Company


Rodney Square North


1100 North Market Street


Wilmington, Delaware 19890-0001


Facsimile No.: (302) 636-4140


Attention: Corporate Trust Administration]


 


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(d)           if given to any
Holder of record, 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 (i) 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, and (ii) any notice,
demand or other communication to or upon the Guarantee Trustee or the Property
Trustee shall be sufficiently given or made only upon actual receipt of the
writing by such Person.


 


Section 8.4. Benefit.


 


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


 


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.


 


16

















 


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. 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 that Guarantee Trustee shall use reasonable efforts that are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


[Signatures appear on next page]


 


17

















 


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


 


	
   

  	
  SCBT FINANCIAL CORPORATION, as Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [WILMINGTON TRUST COMPANY],

  
	
   

  	
  as Guarantee Trustee, and not in its individual capacity

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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