EXHIBIT 4.2
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GUARANTEE AGREEMENT
between
FIRST LITCHFIELD FINANCIAL CORPORATION,
As Guarantor,
and
WILMINGTON TRUST COMPANY,
As Guarantee Trustee
Dated as of June 16, 2006
FIRST LITCHFIELD STATUTORY TRUST II
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TABLE OF CONTENTS
ARTICLE I INTERPRETATION AND DEFINITIONS.......................................1
SECTION 1.1 Interpretation..................................................1
SECTION 1.2 Definitions.....................................................2
ARTICLE II REPORTS.............................................................6
SECTION 2.1 List of Holders.................................................6
SECTION 2.2 Periodic Reports to the Guarantee Trustee.......................6
SECTION 2.3 Event of Default; Waiver........................................6
SECTION 2.4 Event of Default; Notice........................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE.................7
SECTION 3.1 Powers and Duties of the Guarantee Trustee......................7
SECTION 3.2 Certain Rights of the Guarantee Trustee.........................8
SECTION 3.3 Compensation...................................................10
SECTION 3.4 Indemnity......................................................10
SECTION 3.5 Securities.....................................................11
ARTICLE IV GUARANTEE TRUSTEE..................................................11
SECTION 4.1 Guarantee Trustee; Eligibility.................................11
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee Trustee..12
ARTICLE V GUARANTEE...........................................................12
SECTION 5.1 Guarantee......................................................12
SECTION 5.2 Waiver of Notice and Demand....................................13
SECTION 5.3 Obligations Not Affected.......................................13
SECTION 5.4 Rights of Holders..............................................14
SECTION 5.5 Guarantee of Payment...........................................14
SECTION 5.6 Subrogation....................................................14
SECTION 5.7 Independent Obligations........................................15
SECTION 5.8 Enforcement....................................................15
ARTICLE VI COVENANTS AND SUBORDINATION........................................15
SECTION 6.1 Dividends, Distributions and Payments..........................15
SECTION 6.2 Subordination..................................................16
SECTION 6.3 Pari Passu Guarantees..........................................16
ARTICLE VII TERMINATION.......................................................16
SECTION 7.1 Termination....................................................16
ARTICLE VIII MISCELLANEOUS....................................................17
SECTION 8.1 Successors and Assigns.........................................17
SECTION 8.2 Amendments.....................................................17
SECTION 8.3 Notices........................................................17
SECTION 8.4 Benefit........................................................18
SECTION 8.5 Governing Law..................................................18
SECTION 8.6 Submission to Jurisdiction.....................................19
SECTION 8.7 Counterparts; facsimile........................................19
GUARANTEE AGREEMENT, dated as of June 16, 2006, executed and delivered
by First Litchfield Financial Corporation, a Delaware corporation (the
"Guarantor") having its principal office at 13 North Street, Box #578,
Litchfield, CT. 06759, and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as trustee (in such capacity, 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 Litchfield Statutory Trust II, a
Delaware statutory trust (the "Issuer").
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of the date hereof (the "Trust Agreement"), among the Guarantor, as Depositor,
the Property Trustee, the Delaware Trustee and the Administrative Trustees named
therein and the holders from time to time of the Preferred Securities (as
hereinafter defined), the Issuer is issuing $3,000,000 aggregate Liquidation
Amount (as defined in the Trust Agreement) of its Floating Rate Preferred
Securities (Liquidation Amount $1,000 per preferred security) (the "Preferred
Securities") representing preferred undivided beneficial interests in the assets
of the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Notes (as
defined in the Trust Agreement) of the Guarantor; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the 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
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement to
provide as follows for the benefit of the Holders from time to time of the
Preferred Securities:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 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 1.2;
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(b) the words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(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) the words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Guarantee Agreement as a
whole and not to any particular Article, Section or other subdivision;
(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 1.2 Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings:
"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; provided, that the
Issuer shall not be deemed to be an Affiliate of the Guarantor. 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.
"Beneficiaries" means any Person to whom the Issuer is or
hereafter becomes indebted or liable.
"Board of Directors" means either the board of directors of
the Guarantor or any duly authorized committee of that board.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Debt" means with respect to any Person, whether recourse is
to all or a portion of the assets of such Person, whether currently
existing or hereafter incurred, and whether or not contingent and
without duplication, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation
of such Person issued or assumed as the deferred purchase price of
property or services (but excluding trade accounts payable arising in
the ordinary course of business); (v) every capital lease obligation of
such Person; (vi) all indebtedness of such Person, whether incurred on
or prior to the date of this Guarantee Agreement or thereafter
incurred, for claims in respect of derivative products, including
interest rate, foreign exchange rate and commodity forward contracts,
options, swaps and similar arrangements; (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise; and (viii) any renewals,
extensions, refundings, amendments or modifications of any obligation
of the type referred to in clauses (i) through (vii).
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement;
provided, that except with respect to a default in payment of any
Guarantee Payments, the Guarantor shall have received notice of default
from the Guarantee Trustee and shall not have cured such default within
thirty (30) days after receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the
Issuer: (i) any accumulated and unpaid Distributions (as defined in the
Trust Agreement) required to be paid on the Preferred Securities, to
the extent the Issuer shall have funds on hand available therefor at
such time, (ii) the Redemption Price with respect to any Preferred
Securities to the extent the Issuer shall have funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary
termination, winding up or liquidation of the Issuer, unless Notes are
distributed to the Holders, the lesser of (a) the aggregate of the
Liquidation Amount of $1,000 per Preferred Security plus accumulated
and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent that the Issuer shall have funds available
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 in
accordance with applicable law (in either case, the "Liquidation
Distribution").
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"Guarantee Trustee" means Wilmington Trust Company in its
capacity as trustee hereunder, until a Successor Guarantee Trustee, as
defined below, has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement, 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, 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, the Guarantee
Trustee or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture, dated as
of the date hereof, as supplemented and amended, between the Guarantor
and Wilmington Trust Company, as trustee.
"List of Holders" has the meaning specified in Section 2.1.
"Majority in Liquidation Amount of the Preferred Securities"
means a vote by the Holder(s), voting separately as a class, of more
than fifty percent (50%) of the aggregate Liquidation Amount of all
then outstanding Preferred Securities issued by the Issuer.
"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.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, Chief Financial
Officer, President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement (other
than the certificate provided pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each 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
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(d) a statement as to whether, in the opinion of each 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, government or any agency or political subdivision thereof
or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any Senior Vice President, any Vice President, any Assistant
Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any Trust Officer or Assistant Trust Officer
or any other officer in the Corporate Trust Office of the Guarantee
Trustee with direct responsibility for the administration of this
Guarantee Agreement 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.
"Senior Debt" means the principal of and any premium and
interest on (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Guarantor
whether or not such claim for post-petition interest is allowed in such
proceeding) all Debt of the Guarantor, whether incurred on or prior to
the date of the Indenture or thereafter incurred, unless it is provided
in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, that such obligations are not superior in
right of payment to the Preferred Securities; provided, however, that
if the Guarantor is subject to the regulation and supervision of an
"appropriate Federal banking agency" within the meaning of 12 U.S.C.
1813(q), the Guarantor shall have received the approval of such
appropriate Federal banking agency prior to issuing any such obligation
if not otherwise generally approved; provided further, that Senior Debt
shall not include any other debt securities, and guarantees in respect
of such debt securities, issued to any trust other than the Issuer (or
a trustee of such trust), partnership or other entity affiliated with
the Guarantor that is a financing vehicle of the Guarantor (a
"financing entity"), in connection with the issuance by such financing
entity of equity securities or other securities that are treated as
equity capital for regulatory capital purposes guaranteed by the
Guarantor pursuant to an instrument that ranks pari passu with or
junior in right of payment to this Guarantee Agreement, including,
without limitation, securities issued by First Litchfield Statutory
Trust I.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in effect on the date of this Guarantee Agreement.
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Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
ARTICLE II
REPORTS
SECTION 2.1 List of Holders.
The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee at such times as the Guarantee Trustee may request in writing, within
thirty (30) days after the receipt by the Guarantor of any such request, a list,
in such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders (the "List of Holders") as of a date not more than
fifteen (15) days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and is
not identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
SECTION 2.2 Periodic Reports to the Guarantee Trustee.
The Guarantor shall deliver to the Guarantee Trustee, within one
hundred and twenty (120) days after the end of each fiscal year of the Guarantor
ending after the date of this Guarantee Agreement, an Officers' Certificate
covering the preceding fiscal year, stating whether or not to the knowledge of
the signers thereof the Guarantor is in default in the performance or observance
of any of the terms or provisions or any of the conditions of this Guarantee
Agreement (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Guarantor shall be in default thereof,
specifying all such defaults and the nature and status thereof of which they
have knowledge.
SECTION 2.3 Event of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, 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.
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SECTION 2.4 Event of Default; Notice.
(a) The Guarantee Trustee shall, within ninety (90) days after
the occurrence of a default, transmit to the Holders notices of all
defaults actually known to the Guarantee Trustee, unless such defaults
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 determine that the withholding
of such notice is in the interests of the Holders. For the purpose of
this Section 2.4, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any default or Event of Default unless the Guarantee
Trustee shall have received written notice, or a Responsible Officer
charged with the administration of this Guarantee Agreement shall have
received written notice, of such default or Event of Default from the
Guarantor or a Holder.
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 its rights pursuant to Section 5.4(d) or to a Successor
Guarantee Trustee upon 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, 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) The rights, immunities, duties and responsibilities of the
Guarantee Trustee shall be as provided by this Guarantee Agreement and
there shall be no other duties or obligations, express or implied, of
the Guarantee Trustee. Notwithstanding the foregoing, no provisions of
this Guarantee Agreement shall require the Guarantee Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not
herein expressly so
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provided, every provision of this Guarantee Agreement relating to the
conduct or affecting the liability of or affording protection to the
Guarantee Trustee shall be subject to the provisions of this Section
3.1. To the extent that, at law or in equity, the Guarantee Trustee has
duties and liabilities relating to the Guarantor or the Holders, the
Guarantee Trustee shall not be liable to any Holder for the Guarantee
Trustee's good faith reliance on the provisions of this Guarantee
Agreement. The provisions of this Guarantee Agreement, to the extent
that they restrict the duties and liabilities of the Guarantee Trustee
otherwise existing at law or in equity, are agreed by the Guarantor and
the Holders to replace such other duties and liabilities of the
Guarantee Trustee.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, negligent failure to act or own willful misconduct,
except that:
(i) 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; and
(ii) 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 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.
SECTION 3.2 Certain Rights of the 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
in good faith and in accordance with the terms hereof upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless otherwise
prescribed herein;
(iii) the Guarantee Trustee may consult with counsel,
and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken
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by it hereunder in good faith and in reliance thereon and in
accordance with such advice. Such counsel may be counsel to
the Guarantee Trustee, 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;
(iv) 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 reasonable security or indemnity 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)(iv) 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 Agreement;
(v) 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 if the Guarantee Trustee shall
determine to make such inquiry or investigation, it shall be
entitled to examine the books, records and premises of the
Guarantor, personally or by agent or attorney;
(vi) 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, attorneys,
custodians or nominees and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of
any such agent, attorney, custodian or nominee appointed with
due care by it hereunder;
(vii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right 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 acting in accordance with such
instructions;
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(viii) except as otherwise expressly provided by this
Guarantee Agreement, the Guarantee Trustee shall not be under
any obligation to take any action that is discretionary under
the provisions of this Guarantee Agreement;
(ix) 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 rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor; and
(x) the Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument or
other writing (or any rerecording, refilling or reregistration
thereof).
(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 Compensation.
The Guarantor agrees to pay to the Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provisions of law in regard to the
compensation of a trustee of an express trust) and to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
(including the reasonable fees and expenses of its attorneys and agents)
incurred or made by the Guarantee Trustee in accordance with any provisions of
this Guarantee Agreement.
SECTION 3.4 Indemnity.
The Guarantor agrees to indemnify and hold harmless the Guarantee
Trustee (including in its individual capacity) and any of its Affiliates and any
of their officers, directors, shareholders, employees, representatives or agents
from and against any loss, damage, liability, tax (other than income, franchise
or other taxes imposed on amounts paid pursuant to Section 3.3), penalty,
expense or claim of any kind or nature whatsoever incurred without negligence,
bad faith or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
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connection with the exercise or performance of any of its rights, 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. This indemnity shall survive the termination of this
Agreement or the resignation or removal of the Guarantee Trustee.
In no event shall the Guarantee Trustee be liable for any indirect,
special, punitive or consequential loss or damage of any kind whatsoever,
including, but not limited to, lost profits, even if the Guarantee Trustee has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
In no event shall the Guarantee Trustee be liable for any failure or
delay in the performance of its obligations hereunder because of circumstances
beyond its control, including, but not limited to, acts of God, flood, war
(declared or undeclared), terrorism, fire, riot, embargo or government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Guarantee Agreement.
SECTION 3.5 Securities.
The Guarantee Trustee or any other agent of the Guarantee Trustee, in
its individual or any other capacity, may become the owner or pledgee of Common
or Preferred Securities.
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 corporation organized and doing business
under the laws of the United States or of any State thereof,
authorized to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million dollars
($50,000,000), subject to supervision or examination by
Federal or State authority and having an office within the
United States. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then,
for the purposes of this Section 4.1, 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).
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(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 in the manner and with the effect set out in Section
4.2(c).
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(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 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 hereunder 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 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 4.2
within thirty (30) days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
petition, at the expense of the Guarantor, 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.
ARTICLE V
GUARANTEE
SECTION 5.1 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 or on behalf of the Issuer), as and when
due, regardless of any defense (except for the defense of payment by
the Issuer), right of set-off or counterclaim which 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
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amounts to the Holders. The Guarantor shall give prompt written notice
to the Guarantee Trustee in the event it makes any direct payment to
the Holders hereunder.
(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 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, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this 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 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 (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Notes as provided in the Indenture),
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;
(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 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: (a) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (b) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (c) the Holders of a Majority in Liquidation
Amount of the 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 Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and (d) any
Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Guarantee Trustee, the Issuer 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) or upon distribution of Notes to Holders as provided in the Trust
Agreement.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, that, the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights 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.
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SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make 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.
SECTION 5.8 Enforcement.
A Beneficiary may enforce the Obligations of the Guarantor contained in
Section 5.1(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.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1 Dividends, Distributions and Payments.
So long as any Preferred Securities remain outstanding, if there shall
have occurred and be continuing an Event of Default or the Guarantor shall have
entered into an Extension Period as provided for in the Indenture and such
period, or any extension thereof, shall have commenced and be continuing, then
the Guarantor may not (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Guarantor's Equity Interests (as defined in the Indenture), (b) vote in
favor of or permit or otherwise allow any of its Subsidiaries (as defined in the
Indenture) to declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to or otherwise
retire, any of such Subsidiary's Equity Interests entitling the holders thereof
to a stated rate of return other than dividends or distributions on Equity
Interests payable to the Company or any Subsidiary thereof (for the avoidance of
doubt, whether such Equity Interests are perpetual or otherwise), or (c) make
any payment of principal of or any interest or premium on or repay, repurchase
or redeem any debt securities of the Guarantor that rank pari passu in all
respects with or junior in interest to the Preferred Securities (other than (i)
repurchases, redemptions or other acquisitions of Equity Interests of the
Guarantor in connection with (1) any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase or similar plan with respect to any Equity Interests or (3) the
issuance of Equity Interests of the Guarantor (or securities convertible into or
exercisable for such Equity Interests) as consideration in an acquisition
transaction entered into prior to the occurrence of such Event of Default or the
applicable Extension Period, (ii) as a result of an exchange or conversion of
any class or series of the Guarantor's Equity Interests (or any Equity Interests
of a Subsidiary of the Guarantor) for any class or series of the Guarantor's
Equity Interests or any class of series of the Guarantor's indebtedness for any
class or series of the Guarantor's Equity
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Interests, (iii) the purchase of fractional interests in Equity Interests of the
Guarantor pursuant to the conversions or exchange provisions of such Equity
Interests or the security being converted or exchanged, (iv) any declaration of
a dividend in connection with any rights plan, the issuance of rights, Equity
Interests or other property under any rights plan or the redemption or
repurchase of rights pursuant thereto, or (v) any dividend in the form of Equity
Interests, warrants, options or other rights where the dividend Equity Interests
or the Equity Interests issuable upon exercise of such warrants, options or
other rights is the same Equity Interests as that on which the dividend is being
paid or ranks pari passu with or junior to such Equity Interests).
SECTION 6.2 Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Debt of the Guarantor.
SECTION 6.3 Pari Passu Guarantees.
(a) The obligations of the Guarantor under this Guarantee
Agreement shall rank pari passu with the obligations of the Guarantor
under any similar guarantee agreements issued by the Guarantor with
respect to preferred securities (if any) similar to the Preferred
Securities, issued by trusts other than the Issuer established or to be
established by the Guarantor (if any), in each case similar to the
Issuer, including, without limitation, the Guarantee Agreement, dated
June 26, 2003, issued by the Guarantor with respect to the preferred
securities issued by First Litchfield Statutory Trust I.
(b) 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 Debt of the
Guarantor, under any indenture or agreement that the Guarantor may
enter into in the future or otherwise.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (a) full payment of the Redemption Price of all Preferred
Securities, (b) the distribution of Notes to the Holders in exchange for all of
the Preferred Securities or (c)
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full payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer. 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 must restore payment of any sums paid with respect
to Preferred Securities or this Guarantee Agreement. The obligations of the
Guarantor under Sections 3.3 and 3.4 shall survive any such termination or the
resignation and removal of the Guarantee Trustee.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
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 successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its rights or delegate its obligations hereunder without the prior approval of
the Holders of 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 the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Guarantor, the Guarantee Trustee and the Holders of not
less than a Majority in Liquidation Amount of the Preferred Securities. The
provisions of Article VI of the Trust Agreement concerning meetings or consents
of the Holders shall apply to the giving of such approval.
SECTION 8.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or facsimile
number set forth below or such other address, facsimile number or to
the attention of such other Person as the Guarantor may give notice to
the Guarantee Trustee and the Holders:
First Litchfield Financial Corporation
13 North Street, Box #578
Litchfield, Ct. 06759
Facsimile No.: (860) 567-9412
Attention: Treasurer
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(b) if given to the Issuer, at the Issuer's address or
facsimile number set forth below or such other address, facsimile
number or to the attention of such other Person as the Issuer may give
notice to the Guarantee Trustee and the Holders:
First Litchfield Statutory Trust II
c/o First Litchfield Financial Corporation
13 North Street, Box #578
Litchfield, Ct. 06759
Facsimile No.: 860-567-9412
Attention: Administrative Trustee
(c) if given to the Guarantee Trustee, at the address or
facsimile number set forth below or such other address, facsimile
number or to the attention of such other Person as the Guarantee
Trustee may give notice to the Guarantor and the Holders:
Wilmington Trust Company
Rodney Square North, 1100 North Market Street
Wilmington, Delaware 19890-0001
Facsimile No.: (302) 636-4140
Attention: Corporate Capital Markets
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Securities.
SECTION 8.5 Governing Law.
This Guarantee Agreement and the rights and obligations of each party
hereto, shall be construed and enforced in accordance with and governed by the
laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations Law).
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SECTION 8.6 Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH
RESPECT TO OR ARISING OUT OF THIS GUARANTEE AGREEMENT MAY BE BROUGHT IN OR
REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW
YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
(IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF
THIS GUARANTEE AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR
IN CONNECTION WITH THIS GUARANTEE AGREEMENT.
SECTION 8.7 Counterparts; facsimile.
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. Delivery of an
executed signature page of this Guarantee Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart hereof.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Guarantee
Agreement as of the date first above written.
FIRST LITCHFIELD FINANCIAL CORPORATION
By:
-------------------------------------
Name
Title:
WILMINGTON TRUST COMPANY, not
in its individual capacity, but solely as
Guarantee Trustee
By:
-------------------------------------
Name
Title:
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