PREFERRED SECURITIES GUARANTEE AGREEMENT FIRST UNITED CORPORATION Dated as of December 30, 2009
Exhibit 4.3
FIRST
UNITED CORPORATION
Dated as
of December 30, 2009
TABLE
OF CONTENTS
| PAGE | ||
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ARTICLE
I
DEFINITIONS
AND INTERPRETATION
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||
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SECTION
1.1.
|
Definitions
and Interpretation
|
1
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|
ARTICLE
II
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
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||
|
SECTION
2.1.
|
Powers
and Duties of the Guarantee Trustee
|
4
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SECTION
2.2.
|
Certain
Rights of the Guarantee Trustee
|
5
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|
SECTION
2.3.
|
Not
Responsible for Recitals or Issuance of Guarantee
|
7
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|
SECTION
2.4.
|
Events
of Default; Waiver
|
7
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|
SECTION
2.5.
|
Events
of Default; Notice
|
8
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ARTICLE
III
THE
GUARANTEE TRUSTEE
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||
|
SECTION
3.1.
|
The
Guarantee Trustee; Eligibility
|
8
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SECTION
3.2.
|
Appointment,
Removal and Resignation of the Guarantee Trustee
|
9
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ARTICLE
IV
GUARANTEE
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||
|
SECTION
4.1.
|
Guarantee
|
9
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|
SECTION
4.2.
|
Waiver
of Notice and Demand
|
10
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|
SECTION
4.3.
|
Obligations
Not Affected
|
10
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|
SECTION
4.4.
|
Rights
of Holders
|
11
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|
SECTION
4.5.
|
Guarantee
of Payment
|
11
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|
SECTION
4.6.
|
Subrogation
|
11
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|
SECTION
4.7.
|
Independent
Obligations
|
12
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|
SECTION
4.8.
|
Enforcement
|
12
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ARTICLE
V
LIMITATION
OF TRANSACTIONS; SUBORDINATION
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||
|
SECTION
5.1.
|
Limitation
of Transactions
|
12
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SECTION
5.2.
|
Ranking
|
13
|
i
TABLE
OF CONTENTS
(continued)
| PAGE | ||
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ARTICLE
VI
TERMINATION
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||
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SECTION
6.1.
|
Termination
|
13
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ARTICLE
VII
INDEMNIFICATION
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||
|
SECTION
7.1.
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Exculpation
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14
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SECTION
7.2.
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Indemnification
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14
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SECTION
7.3.
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Compensation;
Reimbursement of Expenses
|
15
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ARTICLE
VIII
MISCELLANEOUS
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||
|
SECTION
8.1.
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Successors
and Assigns
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15
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SECTION
8.2.
|
Amendments
|
16
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SECTION
8.3.
|
Notices
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16
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SECTION
8.4.
|
Benefit
|
17
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|
SECTION
8.5.
|
Governing
Law
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17
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SECTION
8.6.
|
Counterparts
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17
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ii
THIS
PREFERRED SECURITIES GUARANTEE AGREEMENT (this “Guarantee”), dated as of
December 30, 2009, is executed and delivered by First United Corporation, a
Maryland corporation (the “Guarantor”), and Wilmington Trust Company, a banking
corporation organized and existing under the laws of Delaware, as trustee (the
“Guarantee Trustee”), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of First United
Statutory Trust III, a Delaware statutory trust (the “Issuer”).
WHEREAS,
pursuant to an Amended and Restated Declaration of Trust of the Issuer, dated as
of December 30, 2009 (the “Declaration”), by and among First United Corporation,
as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇
▇. ▇▇▇▇▇, as Administrative Trustees, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, Issuer is issuing,
in one or more closing, the first of which is occurring on the date hereof,
preferred securities having an aggregate liquidation amount of up to $30,000,000
(the “Preferred Securities”); and
WHEREAS,
as incentive for the Holders to purchase the Preferred Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Guarantee, to pay to the Holders of Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the purchase by each Holder of the Preferred
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
SECTION
1.1. Definitions and
Interpretation. In this Guarantee, unless the context
otherwise requires:
(a) capitalized
terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) a term
defined anywhere in this Guarantee has the same meaning throughout;
(c) all
references to “the Guarantee” or “this Guarantee” are to this Guarantee as
modified, supplemented or amended from time to time;
(d) all
references in this Guarantee to Articles and Sections are to Articles and
Sections of this Guarantee, unless otherwise specified;
(e) terms
defined in the Declaration as of the date of execution of this Guarantee have
the same meanings when used in this Guarantee, unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(f) a
reference to the singular includes the plural and vice versa.
“Beneficiaries”
means any Person to whom the Issuer is or hereafter becomes indebted or
liable.
“Corporate
Trust Office” means the office of the Guarantee Trustee at which the corporate
trust business of the Guarantee Trustee shall, at any particular time, be
principally administered.
“Covered
Person” means any Holder of Preferred Securities.
“Debentures”
means the junior subordinated debentures of First United Corporation, designated
the Junior Subordinated Debentures due 2040, held by the Property Trustee (as
defined in the Declaration) of the Issuer.
“Event of
Default” has the meaning set forth in Section 2.4.
“Guarantee
Payments” means the following payments or distributions, without duplication,
with respect to the Preferred Securities, to the extent not paid or made by the
Issuer: (i) any accrued and unpaid Distributions (as defined in the
Declaration) which are required to be paid on such Preferred Securities to the
extent the Issuer has funds available in the Payment Account (as defined in the
Declaration) therefor at such time, (ii) the Redemption Price (as defined in the
Indenture) to the extent the Issuer has funds available in the Property Account
therefor at such time, with respect to any Preferred Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders of the Preferred Securities
in exchange therefor as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions on
the Preferred Securities to the date of payment, to the extent the Issuer has
funds available in the Payment Account therefor at such time, and (b) the amount
of assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer after satisfaction of liabilities to creditors of the
Issuer as provided by applicable law (in either case, the “Liquidation
Distribution”).
“Guarantee
Trustee” means Wilmington Trust Company, until a Successor Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Guarantee and thereafter means each such Successor Guarantee
Trustee.
“Holder”
means any holder, as registered on the books and records of the Issuer, of any
Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, “Holder”
shall not include the Guarantor or any Affiliate of the Guarantor.
“Indemnified
Person” means the Guarantee Trustee (including in its individual capacity), any
Affiliate of the Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Guarantee Trustee.
“Indenture”
means the Indenture, dated as of December 30, 2009, between the Guarantor and
Wilmington Trust Company, not in its individual capacity but solely as trustee,
and any indenture supplemental thereto pursuant to which the Debentures are to
be issued to the Institutional Trustee of the Issuer.
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“Liquidation
Distribution” has the meaning set forth in the definition of “Guarantee
Payments” herein.
“Majority
in liquidation amount of the Preferred Securities” means Holder(s) of
outstanding Preferred Securities, voting together as a class, but separately
from the holders of Common Securities, of more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to,
but excluding, the date upon which the voting percentages are determined) of all
Preferred Securities then outstanding.
“Obligations”
means any costs, expenses or liabilities (but not including liabilities related
to taxes) of the Issuer, other than obligations of the Issuer to pay to holders
of any Trust Securities the amounts due such holders pursuant to the terms of
the Trust Securities.
“Officer’s
Certificate” means, with respect to any Person, a certificate signed by the
Chief Executive Officer, President, Chief Financial Officer, an Executive Vice
President or any other executive officer authorized by law to sign such
certificate. Any Officer’s Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee shall
include:
(a) a
statement that each officer signing the Officer’s Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief
statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officer’s Certificate;
(c) a
statement that each such officer has made such examination or investigation as,
in such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a
statement as to whether, in the opinion of each such officer, such condition or
covenant has been complied with.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“Responsible
Officer” means, when used with respect to the Guarantee Trustee, any officer
within the Corporate Trust Office of the Guarantee Trustee with direct
responsibility for the administration of any matters relating to this Guarantee,
including any vice president, any assistant vice president, any secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or other officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated
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officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer’s knowledge of
and familiarity with the particular subject.
“Successor
Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 3.1.
“Trust
Securities” means the Common Securities and the Preferred
Securities.
ARTICLE
II
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION
2.1. Powers and Duties of the
Guarantee Trustee.
(a) This
Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders
of the Preferred Securities, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Preferred Securities exercising his
or her rights pursuant to Section 4.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting and 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 actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce this
Guarantee for the benefit of the Holders of the Preferred
Securities.
(c) The
Guarantee Trustee, before the occurrence of any Event of Default and after the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee, and no implied covenants shall be read into this Guarantee against
the Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.4(b)) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No
provision of this Guarantee shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) prior to
the occurrence of any Event of Default and after the curing or waiving of all
Events of Default that may have occurred:
(A) the
duties and obligations of the Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such
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duties
and obligations as are specifically set forth in this Guarantee, and no implied
covenants or obligations shall be read into this Guarantee against the Guarantee
Trustee; and
(B) in the
absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this Guarantee; but
in the case of any such certificates or opinions furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not on their face they conform to the requirements of this
Guarantee;
(ii) the
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that such Responsible Officer of the Guarantee Trustee or the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the Holders of not less than a Majority in liquidation amount of the
Preferred Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee;
and
(iv) no
provision of this Guarantee shall require the Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds is not reasonably assured to it under the terms
of this Guarantee, or security and indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably assured to
it.
SECTION
2.2. Certain Rights of the
Guarantee Trustee.
(a) Subject
to the provisions of Section 2.1:
(i) The
Guarantee Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any
direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer’s Certificate.
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(iii) Whenever,
in the administration of this Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer’s Certificate of the Guarantor
which, upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument or other writing (or any rerecording, refiling or
reregistration thereof).
(v) The
Guarantee Trustee may consult with counsel of its selection, and the advice or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or
opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions concerning the
administration of this Guarantee from any court of competent
jurisdiction.
(vi) The
Guarantee Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided, however, that nothing
contained in this Section 2.2(a)(vi) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Guarantee.
(vii) 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.
(viii) The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
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(ix) Any
action taken by the Guarantee Trustee or its agents hereunder shall bind the
Holders of the Preferred Securities, and the signature of the Guarantee Trustee
or its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Guarantee, both of which shall be conclusively
evidenced by the Guarantee Trustee’s or its agent’s taking such
action.
(x) Whenever
in the administration of this Guarantee 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 of a Majority in liquidation amount of the
Preferred Securities, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received and (C) shall be
protected in conclusively relying on or acting in accordance with such
instructions.
(xi) 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 by this
Guarantee.
(b) No
provision of this Guarantee 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.
SECTION
2.3. Not Responsible for Recitals
or Issuance of Guarantee.
The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as
to the validity or sufficiency of this Guarantee.
SECTION
2.4. Events of Default;
Waiver.
(a) An Event
of Default under this Guarantee will occur upon the failure of the Guarantor to
perform any of its payment or other obligations hereunder.
(b) The
Holders of a Majority in liquidation amount of the Preferred Securities may,
voting or consenting as a class, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease
to exist, and shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
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SECTION
2.5. Events of Default;
Notice.
(a) The
Guarantee Trustee shall, within ninety (90) days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders
of the Preferred Securities, notices of all Events of Default actually known to
a Responsible Officer of the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice; provided, however, that the
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Preferred Securities.
(b) The
Guarantee Trustee shall not be charged with knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice thereof from the
Guarantor or a Holder of the Preferred Securities, or a Responsible Officer of
the Guarantee Trustee charged with the administration of this Guarantee shall
have actual knowledge thereof.
ARTICLE
III
THE
GUARANTEE TRUSTEE
SECTION
3.1. The 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
corporation or national association organized and doing business under the laws
of the United States of America or any state or territory thereof or of the
District of Columbia, or Person authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least Fifty Million
U.S. Dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If
such corporation or national association publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this Section 3.1(a)(ii),
the combined capital and surplus of such corporation or national association
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
3.1(a), the Guarantee Trustee shall immediately resign in the manner and with
the effect set forth in Section 3.2(c).
(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
shall either eliminate such interest or resign to the extent and in the manner
provided by, and subject to, this Guarantee.
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SECTION
3.2. Appointment, Removal and
Resignation of the Guarantee Trustee.
(a) Subject
to Section 3.2(b), the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor except during an Event of
Default.
(b) The
Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c) The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no
Successor Guarantee Trustee shall have been appointed and accepted appointment
as provided in this Section 3.2 within sixty (60) days after delivery of an
instrument of removal or resignation, the Guarantee Trustee resigning or being
removed may petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Guarantee
Trustee.
(e) No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f) Upon
termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee
all amounts owing to the Guarantee Trustee under Sections 7.2 and 7.3 accrued to
the date of such termination, removal or resignation.
(g) Any
Person into which the Guarantee Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Guarantee Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Guarantee Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, that such
Person shall be otherwise eligible and qualified under this
Article.
ARTICLE
IV
GUARANTEE
SECTION
4.1. Guarantee.
(a) The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by the
Issuer),
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as and
when due, regardless of any defense (except as defense of payment by the
Issuer), right of set-off or counterclaim that the Issuer may have or
assert. 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 to pay such amounts to the
Holders.
(b) The
Guarantor hereby also agrees to assume any and all Obligations of the Issuer and
in the event any such Obligation is not so assumed, subject to the terms and
conditions hereof, the Guarantor hereby irrevocably and unconditionally
guarantees to each Beneficiary the full payment, when and as due, of any and all
Obligations to such Beneficiaries. This Guarantee is intended to be
for the Beneficiaries who have received notice hereof.
SECTION
4.2. Waiver of Notice and
Demand.
The
Guarantor hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and
demands.
SECTION
4.3. Obligations Not
Affected.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term or
condition relating to the Preferred Securities to be performed or observed by
the Issuer;
(b) the
extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or in connection
with, the Preferred Securities (other than an extension of time for the payment
of the Distributions, Redemption Price, Liquidation Distribution or other sums
payable that results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures permitted by
the Indenture);
(c) any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred on
the Holders pursuant to the terms of the Preferred Securities, or any action on
the part of the Issuer granting indulgence or extension of any
kind;
(d) the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
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(e) any
invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g) any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 4.3
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 consent of,
the Guarantor with respect to the happening of any of the
foregoing.
SECTION
4.4. Rights of
Holders.
(a) The
Holders of a Majority in liquidation amount of the Preferred Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of this Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee; provided, however, that
(subject to Sections 2.1 and 2.2) the Guarantee Trustee shall have the right to
decline to follow any such direction if the Guarantee Trustee shall determine
that the actions so directed would be unjustly prejudicial to the Holders not
taking part in such direction or if the Guarantee Trustee being advised by legal
counsel determines that the action or proceeding so directed may not lawfully be
taken or if the Guarantee Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors or trustees
and/or Responsible Officers shall determine that the action or proceeding so
directed would involve the Guarantee Trustee in personal liability.
(b) Any
Holder of Preferred Securities may institute a legal proceeding directly against
the Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or remedy to require
that any such action be brought first against the Issuer, the Guarantee Trustee
or any other Person before so proceeding directly against the
Guarantor.
SECTION
4.5. Guarantee of
Payment.
This
Guarantee creates a guarantee of payment and not of collection.
SECTION
4.6. Subrogation.
The
Guarantor shall be subrogated to all (if any) rights of the Holders of Preferred
Securities against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by applicable provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee, if, after giving effect to any such
payment, any amounts are due and unpaid under this Guarantee. If any
amount shall be paid to the Guarantor
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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
4.7. Independent
Obligations.
The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer with respect to the Preferred Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
4.3 hereof.
SECTION
4.8. Enforcement.
A
Beneficiary may enforce the Obligations of the Guarantor contained in
Section 4.1(b) directly against the Guarantor, and the Guarantor waives any
right or remedy to require that any action be brought against the Issuer or any
other person or entity before proceeding against the Guarantor.
The
Guarantor shall be subrogated to all rights (if any) of any Beneficiary against
the Issuer in respect of any amounts paid to the Beneficiaries by the Guarantor
under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by applicable provisions of
law) be entitled to enforce or exercise any rights that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee, if, after giving effect to such
payment, any amounts are due and unpaid under this Guarantee.
ARTICLE
V
LIMITATION
OF TRANSACTIONS; SUBORDINATION
SECTION
5.1. Limitation of
Transactions.
So long
as any Preferred Securities remain outstanding, if (a) there shall have occurred
and be continuing an Event of Default or (b) the Guarantor shall have selected
an Extension Period as provided in the Declaration and such period, or any
extension thereof, shall have commenced and be continuing, then the Guarantor
shall not (i)
declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of its capital stock; (ii) make any payment of interest,
principal or premium, if any, or repay, repurchase or redeem any debt securities
issued by the Guarantor or any Subsidiary which rank pari passu with or junior to
the Debentures or make any guarantee payments with respect to any guarantee by
the Guarantor of any debt securities if such guarantee ranks pari passu with or junior in
interest to the Debentures (other than, in the case of both (i) and (ii) above,
(A) repurchases, redemptions or other acquisitions of shares of its capital
stock in connection with (x) any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers,
directors, or consultants, (y) a dividend reinvestment or shareholder stock
purchase plan or (z) the issuance of capital stock (or securities convertible
into or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the occurrence of the Event of Default or the
applicable Extension Period, (B) as a result of any exchange, reclassification,
combination or conversion of any class or series of the capital
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stock of
the Guarantor or any of Subsidiary for any class or series of its capital stock
or of any class or series of its indebtedness for any class or series of its
capital stock, (C) the purchase of fractional interests in shares of its capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (D) any declaration of a dividend in
connection with any shareholder’s rights plan, or the issuance of rights, stock
or other property under any shareholders’ rights plan, or the redemption or
repurchase of rights pursuant thereto, (E) dividends or distributions made by a
Subsidiary to the Guarantor, (F) dividends or distributions made by a Subsidiary
to a Subsidiary, or (G) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to
such stock); or (iii) redeem, purchase or acquire less than all of the
Outstanding Debentures or any of the Preferred Securities; provided, however, that,
notwithstanding the foregoing, the Guarantor may make payments pursuant to its
obligations under this Guarantee.
SECTION
5.2. Ranking.
This
Guarantee will constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By their
acceptance thereof, each Holder of Preferred Securities agrees to the foregoing
provisions of this Guarantee and the other terms set forth herein.
The right
of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiary’s liquidation or reorganization or
otherwise is subject to the prior claims of creditors of that subsidiary, except
to the extent the Guarantor may itself be recognized as a creditor of that
subsidiary. Accordingly, the Guarantor’s obligations under this
Guarantee will be effectively subordinated to all existing and future
liabilities of the Guarantor’s subsidiaries, and claimants should look only to
the assets of the Guarantor for payments thereunder. This Guarantee
does not limit the incurrence or issuance of other secured or unsecured debt of
the Guarantor, including Senior Indebtedness of the Guarantor, under any
indenture or agreement that the Guarantor may enter into in the future or
otherwise.
ARTICLE
VI
TERMINATION
SECTION
6.1. Termination.
This
Guarantee shall terminate as to the Preferred Securities (i) upon full payment
of the Redemption Price of all Preferred Securities then outstanding, (ii) upon
the distribution of all of the Debentures to the Holders of all of the Preferred
Securities or (iii) upon full payment of the amounts payable in accordance with
the Declaration upon dissolution of the Issuer. This Guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under the
Preferred Securities or under this Guarantee.
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ARTICLE
VII
INDEMNIFICATION
SECTION
7.1. Exculpation.
(a) No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Guarantor or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission of such Indemnified Person in good
faith in accordance with this Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person’s negligence or willful misconduct with respect to such
acts or omissions.
(b) An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Issuer or the Guarantor and upon such information, opinions,
reports or statements presented to the Issuer or the Guarantor by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person’s professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care by such Indemnified
Person, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Preferred Securities might properly be paid.
SECTION
7.2. Indemnification.
(a) The
Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on the part of the
Indemnified Person, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including but not limited to
the costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of the
Indemnified Person’s powers or duties hereunder. The obligation to indemnify as
set forth in this Section 7.2 shall survive the resignation or removal of the
Guarantee Trustee and the termination of this Guarantee.
(b) Promptly
after receipt by an Indemnified Person under this Section 7.2 of notice of the
commencement of any action, such Indemnified Person will, if a claim in respect
thereof is to be made against the Guarantor under this Section 7.2, notify the
Guarantor in writing of the commencement thereof; but the failure so to notify
the Guarantor (i) will not relieve the Guarantor from liability under paragraph
(a) above unless and to the extent that the Guarantor did not otherwise learn of
such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve the
Guarantor from any obligations to any Indemnified Person other than the
indemnification obligation provided in paragraph (a) above. The Guarantor shall
be entitled to appoint counsel of the Guarantor’s choice at the Guarantor’s
expense to represent the Indemnified Person in any action
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for which
indemnification is sought (in which case the Guarantor shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
Indemnified Person or Persons except as set forth below); provided, however, that such
counsel shall be satisfactory to the Indemnified Person. Notwithstanding the
Guarantor’s election to appoint counsel to represent the Indemnified Person in
any action, the Indemnified Person shall have the right to employ separate
counsel (including local counsel), and the Guarantor shall bear the reasonable
fees, costs and expenses of such separate counsel (and local counsel), if (i)
the use of counsel chosen by the Guarantor to represent the Indemnified Person
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Person and the Guarantor and the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it and/or
other Indemnified Persons which are different from or additional to those
available to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person
within a reasonable time after notice of the institution of such action or (iv)
the Guarantor shall authorize the Indemnified Person to employ separate counsel
at the expense of the Guarantor. The Guarantor will not, without the prior
written consent of the Indemnified Persons, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Indemnified Persons are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each Indemnified Person from all
liability arising out of such claim, action, suit or
proceeding.
SECTION
7.3. Compensation; Reimbursement
of Expenses.
The
Guarantor agrees:
(a) to pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b) except as
otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made
by it in accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct.
The
provisions of this Section 7.3 shall survive the resignation or removal of the
Guarantee Trustee and the termination of this Guarantee.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.1. Successors and
Assigns.
All
guarantees and agreements contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the
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benefit
of the Holders of the Preferred Securities then outstanding. Except
in connection with any merger or consolidation of the Guarantor with or into
another entity or any sale, transfer or lease of the Guarantor’s assets or
capital stock to another entity, in each case to the extent permitted under the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Guarantee without the prior approval of the Holders of not less than
a Majority in liquidation amount of the Preferred Securities.
SECTION
8.2. Amendments.
Except
with respect to any changes that do not adversely affect the rights of Holders
of the Preferred Securities in any material respect (in which case no consent of
Holders will be required), this Guarantee may be amended only with the prior
approval of the Holders of not less than a Majority in liquidation amount of the
Preferred Securities. The provisions of the Declaration with respect
to amendments thereof shall apply equally with respect to amendments of the
Guarantee.
SECTION
8.3. Notices.
All
notices provided for in this Guarantee shall be in writing, duly signed by the
party giving such notice, and shall be delivered, telecopied or mailed by first
class mail, as follows:
(a) If given
to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to the
Holders of the Preferred Securities):
Wilmington
Trust Company, as Guarantee Trustee
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate
Trust Administration
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇.
(b) If given
to the Guarantor, at the Guarantor’s mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders of the
Preferred Securities and to the Guarantee Trustee):
First
United Corporation
▇.▇. ▇▇▇
▇
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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(c) If given
to any Holder of the Preferred Securities, at the address set forth on the books
and records of the Issuer.
All such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
SECTION
8.4. Benefit.
This
Guarantee is solely for the benefit of the Holders of the Preferred Securities
and, subject to Section 2.1(a), is not separately transferable from the
Preferred Securities.
SECTION
8.5. Governing
Law.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
SECTION
8.6. Counterparts.
This
Guarantee may contain more than one counterpart of the signature page and this
Guarantee may be executed by the affixing of the signature of the Guarantor and
the Guarantee Trustee to any of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[SIGNATURES
APPEAR ON NEXT PAGE]
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[SIGNATURE
PAGE]
THIS
GUARANTEE is executed as of the day and year first above written.
|
FIRST UNITED CORPORATION
|
|
| as Guarantor | |
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title:
|
Chairman,
Chief Executive Officer and
|
|
President
|
|
|
WILMINGTON TRUST COMPANY,
|
|
|
as
Guarantee Trustee
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title:
|
Financial
Services Officer
|
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