EXHIBIT 4.5
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SERIES B CAPITAL TRUST GUARANTEE AGREEMENT
ALLFIRST PREFERRED CAPITAL TRUST
Dated as of _______, 1999
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CROSS REFERENCE TABLE/1/
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
310(a)..................................................................4.1(a)
310(b)..................................................................4.1(c)
310(c)............................................................Inapplicable
311(a)..................................................................2.2(b)
311(b)..................................................................2.2(b)
311(c)............................................................Inapplicable
312(a)..................................................................2.2(a)
312(b)..................................................................2.2(b)
312(c).....................................................................2.9
313(a).....................................................................2.3
313(b).....................................................................2.3
313(c).....................................................................2.3
313(d).....................................................................2.3
314(a).....................................................................2.4
314(b)............................................................Inapplicable
314(c).....................................................................2.5
314(d)............................................................Inapplicable
314(e).....................................................................2.5
314(f)............................................................Inapplicable
315(a)..........................................................3.1(d);.3.2(a)
315(b)..................................................................2.7(a)
315(c)..................................................................3.1(c)
315(d)..................................................................3.1(d)
316(a)..............................................................2.6;5.4(a)
317(a)...............................................................2.10; 5.4
318(a)..................................................................2.1(b)
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/1/ This Cross-Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its terms
or provisions.
TABLE OF CONTENTS
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Page
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ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions....................................... 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................... 6
SECTION 2.2 Lists of Holders of Capital Trust Securities........................ 6
SECTION 2.3 Reports by Capital Trust Guarantee Trustee.......................... 6
SECTION 2.4 Periodic Reports to Capital Trust Guarantee Trustee................. 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................... 7
SECTION 2.6 Capital Guarantee Event of Default; Waiver.......................... 7
SECTION 2.7 Capital Guarantee Event of Default; Notice.......................... 7
SECTION 2.8 Conflicting Interests............................................... 7
SECTION 2.9 Disclosure of Information........................................... 7
SECTION 2.10 Capital Trust Guarantee Trustee May File Proofs of Claim............ 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL TRUST GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Capital Trust Guarantee Trustee................ 8
SECTION 3.2 Certain Rights of Capital Trust Guarantee Trustee................... 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Trust Guarantee. 12
ARTICLE IV
CAPITAL TRUST GUARANTEE TRUSTEE
SECTION 4.1 Capital Trust Guarantee Trustee; Eligibility........................ 12
SECTION 4.2 Appointment, Removal and Resignation of Capital Trust Guarantee
Trustee............................................................. 13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee........................................................... 14
SECTION 5.2 Waiver of Notice and Demand......................................... 14
SECTION 5.3 Obligations Not Affected............................................ 15
SECTION 5.4 Rights of Holders................................................... 16
SECTION 5.5 Guarantee of Payment................................................ 16
SECTION 5.6 Subrogation......................................................... 16
SECTION 5.7 Independent Obligations............................................. 17
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions............................................. 17
SECTION 6.2 Ranking................................................................ 18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination............................................................ 18
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation............................................................ 18
SECTION 8.2 Indemnification........................................................ 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns................................................. 19
SECTION 9.2 Amendments............................................................. 19
SECTION 9.3 Consolidations and Mergers............................................. 20
SECTION 9.4 Notices................................................................ 20
SECTION 9.5 Benefit................................................................ 21
SECTION 9.6 Governing Law.......................................................... 21
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SERIES B CAPITAL TRUST GUARANTEE AGREEMENT
This SERIES B CAPITAL TRUST GUARANTEE AGREEMENT (the "Capital Trust
Guarantee"), dated as of _______, 1999, is executed and delivered by Allfirst
Financial Inc., a Delaware corporation and the successor by merger to First
Maryland Bancorp (the "Guarantor"), and The Bank of New York, a New York banking
corporation, as trustee (the "Capital Trust Guarantee Trustee"), for the benefit
of the Holders (as defined herein) of the Capital Trust Securities (as defined
herein) of Allfirst Preferred Capital Trust, a Delaware statutory business trust
(the "Capital Trust").
W I T N E S S E T H:
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WHEREAS, pursuant to the Capital Trust Declaration (as defined herein), on
July 13, 1999, the Capital Trust issued $100,000,000 aggregate liquidation
amount of its Floating Rate Non-Cumulative Subordinated Capital Trust Enhanced
Securities, Series A (the " Old Capital Trust Preferred Securities"), having a
liquidation amount of $1,000 per Capital Trust Preferred Security and $3,093,000
aggregate liquidation amount of its Floating Rate Non-Cumulative Subordinated
Capital Trust Common Securities, having a liquidation amount of $1,000 per
common security (the "Capital Trust Common Securities"; together with the Old
Capital Trust Preferred Securities, the "Capital Trust Securities");
WHEREAS, the Old Capital Trust Preferred Securities and the Capital Trust
Common Securities were irrevocably and unconditionally guaranteed by First
Maryland Bancorp, to the extent set forth in the Series A Capital Trust
Guarantee Agreement dated as of July 13, 1999 (the "First Maryland Guarantee")
WHEREAS, on September 15, 1999, First Maryland Bancorp was merged into the
Guarantor solely for purposes of changing the domicile of incorporation of First
Maryland Bancorp, and the Guarantor succeeded to all of the rights, privileges,
liabilities and obligations of First Maryland Bancorp, including without
limitation the First Maryland Guarantee, as fully and completely as if the
Guarantor has executed and delivered the First Maryland Guarantee, and the
Guarantor executed and delivered to the Capital Trust Guarantee Trustee its
Series A Capital Trust Guarantee Agreement dated as of September 15, 1999 (the
"Old Guarantee")
WHEREAS, pursuant to the Registration Rights Agreement (as defined in the
Capital Trust Declaration), the Capital Trust has offered to exchange up to
$100,000,000 aggregate liquidation amount of its Floating Rate Non-Cumulative
Subordinated Capital Trust Enhanced Securities, Series B (the "New Capital Trust
Preferred Securities" and, together with the Old Capital Trust Preferred
Securities, the "Capital Trust Preferred Securities"), which have been
registered under the Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, pursuant to the Registration Rights Agreement (as defined in the
Capital Trust Declaration), the Guarantor and the Capital Trust Guarantee
Trustee wish to exchange the Old Guarantee for this Series B Capital Trust
Guarantee Agreement, which is substantially the same as the Old Guarantee except
that it has been registered under the Securities Act and qualified under the
Trust Indenture Act and does not contain restrictions on transfer, and which is
for the benefit of the Holders of New Capital Trust Preferred Securities, Old
Capital Trust Preferred Securities not exchanged for New Capital Trust Preferred
Securities and the Capital Trust Common Securities (collectively, the "Capital
Trust Securities");
WHEREAS, as incentive for the Holders to retain the Capital Trust
Securities (which the Guarantor agrees will benefit it), the Guarantor desires
irrevocably and unconditionally to agree, to the extent set forth in this
Guarantee, to pay to the Holders of the Capital Trust Securities the Capital
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 premises, the Guarantor executes
and delivers this Capital Trust Guarantee for the benefit of the Holders.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. In this Capital Trust
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Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Capital Trust 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 Capital Trust Guarantee has the
same meaning throughout;
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(c) all references to "the Capital Trust Guarantee" or "this Capital
Trust Guarantee" are to this Capital Trust Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Capital Trust Guarantee to Articles and
Sections are to Articles and Sections of this Capital Trust Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Capital Trust Guarantee, unless otherwise defined in this
Capital Trust Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa
and a reference to the masculine includes, as applicable, the feminine.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Asset Trust" means Allfirst Preferred Asset Trust.
"Asset Trust Declaration" means the Amended and Restated Declaration
of Trust, dated as of July 13, 1999, as amended, modified or supplemented
from time to time, among the asset trustees of the Asset Trust named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Asset Trust.
"Asset Trust Preferred Guarantee" means the Series B Asset Trust
Preferred Guarantee Agreement, dated as of ________, 1999, entered into by
the Guarantor, for the benefit of the Holders of the Asset Trust Preferred
Securities.
"Asset Trust Preferred Securities" has the meaning set forth in the
Asset Trust Declaration.
"Business Day" has the meaning given to such term in the Indenture.
"Capital Guarantee Event of Default" means a default by the Guarantor
on any of its payment or other obligations under this Capital Trust
Guarantee.
"Capital Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital Trust
Securities, to the extent not paid or made by the Capital Trust: (i) any
unpaid Distributions (as defined in the Capital Trust Declaration) for the
then current quarterly period that are required to be paid on such Capital
Trust Securities to the extent the Capital Trust shall have sufficient
funds available therefor at the time, (ii) the redemption price, including
all unpaid Distributions to the date of redemption for the then current
quarterly period, with respect to any Capital Trust Securities called for
redemption by the Capital Trust, to the extent the Capital Trust
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shall have sufficient funds available therefor at the time, and (iii) upon
a voluntary or involuntary dissolution, winding-up or termination of the
Capital Trust (other than in connection with the distribution of Asset
Trust Preferred Securities to the Holders in exchange for Capital Trust
Securities), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid Distributions on the Capital Trust Securities since
the immediately preceding Distribution Payment Date, and (b) the amount of
assets of the Capital Trust remaining available for distribution to Holders
in liquidation of the Capital Trust (in either case, the "Liquidation
Distribution"). If a Capital Trust Enforcement Event (as defined in the
Capital Trust Declaration) has occurred and is continuing, no Capital
Guarantee Payments under this Capital Trust Guarantee shall be made to
Holders of the Capital Trust Common Securities until Holders of the Capital
Trust Preferred Securities are paid in full any Capital Guarantee Payments
to which they are entitled to under this Capital Trust Guarantee.
"Capital Trust Declaration" means the Amended and Restated Declaration
of Trust, dated as of July 13, 1999, as amended, modified or supplemented
from time to time, among the capital trustees of the Capital Trust named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Capital
Trust.
"Capital Trust Guarantee Trustee" means The Bank of New York, until a
successor Capital Trust Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Capital Trust
Guarantee and thereafter means each such Successor Capital Trust Guarantee
Trustee.
"Capital Trust Preferred Securities" has the meaning set forth in the
recitals to this Capital Trust Guarantee.
"Capital Trust Special Event" has the meaning set forth in the Capital
Trust Declaration.
"Corporate Trust Office" means the office of the Capital Trust
Guarantee Trustee at which the corporate trust business of the Capital
Trust Guarantee Trustee shall at any particular time, be principally
administered, which office at the date of execution of this Capital Trust
Guarantee is located at The Bank of New York, 101 Barclay Street, Floor 21
West, New York, New York 10286, Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Capital Trust
Securities.
"Debenture Issuer" means Allfirst Financial Inc. in its capacity as
issuer of the Debentures under the Indenture.
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"Debentures" means the series of junior subordinated debentures to be
issued by the Guarantor, designated the Floating Rate Junior Subordinated
Debentures, Series B, due July 15, 2029, held by the Asset Property Trustee
(as defined in the Asset Trust Declaration).
"Distribution" has the meaning set forth in the Capital Trust
Declaration.
"Distribution Payment Date" has the meaning set forth in the Capital
Trust Declaration.
"Exchange Offer" has the meaning set forth in the Capital Trust
Declaration.
"Holder" shall mean any holder of Capital Trust Securities, as
registered on the books and records of the Capital Trust; provided,
however, that, in determining whether the Holders of the requisite
percentage of Capital Trust Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor or any other obligor on the
Capital Trust Securities; and provided further, that in determining whether
the Holders of the requisite liquidation amount of Capital Trust Preferred
Securities have voted on any matter provided for in this Capital Trust
Guarantee, then for the purpose of such determination only (and not for any
other purpose hereunder), if the Capital Trust Preferred Securities remain
in the form of one or more Global Securities (as defined in the Capital
Trust Declaration), the term "Holders" shall mean the holder of the Global
Security acting at the direction of the beneficial owners of the Capital
Trust Preferred Securities.
"Indemnified Person" means the Capital Trust Guarantee Trustee, any
Affiliate of the Capital Trust Guarantee Trustee, and any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Capital Trust Guarantee Trustee.
"Indenture" means the Indenture, dated as of July 13, 1999, between
the Guarantor, as Debenture Issuer, and The Bank of New York, as trustee,
Supplemental Indenture No. 1 therefor dated as of September 15, 1999, and
any other indentures supplemental thereto pursuant to which the Debentures
are to be issued.
"Majority in Liquidation Amount of the Capital Trust Securities"
means, except as provided in the terms of the Capital Trust Securities or
by the Trust Indenture Act, Holder(s) of outstanding Capital Trust
Securities, voting together as a single class, or as the context may
require, Holders of outstanding Capital Trust Preferred Securities or
Holders of outstanding Capital Trust Common Securities, voting separately
as a class, who are the record holders of more than 50% of the aggregate
liquidation amount of all outstanding Capital Trust Securities. In
determining whether the Holders of the requisite amount of Capital Trust
Securities have voted, Capital Trust Securities which are owned by the
Guarantor or any Affiliate of the Guarantor shall be disregarded for the
purpose of any such determination.
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"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Capital Trust Declaration) of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Capital Trust Guarantee 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 statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer on behalf of such Person to express an informed opinion
as to whether or not such covenant or condition has been complied
with;
(c) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such condition or covenant
has been complied with; and
(d) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate.
"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.
"Regulatory Approval" has the meaning set forth in the Indenture.
"Responsible Officer" means, with respect to the Capital Trust
Guarantee Trustee, any officer within the Corporate Trust Office of the
Capital Trust Guarantee Trustee, including any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer
or other officer of the Corporate Trust Office of the Capital Trust
Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated 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 Capital Trust Guarantee Trustee" means a successor Capital
Trust Guarantee Trustee possessing the qualifications to act as Capital
Trust Guarantee Trustee under Section 4.1.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
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(a) This Capital Trust Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Capital Trust
Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Capital Trust
Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 Lists of Holders of Capital Trust Securities.
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(a) The Guarantor shall provide the Capital Trust Guarantee
Trustee with a list, in such form as the Capital Trust Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the Capital
Trust Securities ("List of Holders"), (i) semi-annually, not later than June 30
and December 31 of each year and current as of such date, and (ii) at such other
times as the Capital Trust Guarantee Trustee may request in writing, within 30
days of receipt by the Guarantor of a written request from the Capital Trust
Guarantee Trustee for a List of Holders as of a date no more than 15 days before
such List of Holders is given to the Capital Trust Guarantee Trustee; excluding
from any such list names and addresses received by the Capital Trust Guarantee
Trustee in its capacity as Security Registrar (as defined in the Indenture). The
Capital Trust Guarantee Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it, provided that it may destroy any List of Holders previously given to it on
receipt of a new List of Holders .
(b) The Capital Trust Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by Capital Trust Guarantee Trustee. As of May 15 of
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each year (commencing with the year of the first anniversary of the issuance of
the Capital Trust Securities), the Capital Trust Guarantee Trustee shall provide
to the Holders of the Capital Trust Securities such reports as are required by
the Trust Indenture Act (if any) in the form and in the manner provided therein.
The Capital Trust Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Trust Guarantee Trustee. The
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Guarantor shall provide to the Capital Trust Guarantee Trustee such documents,
reports and information as
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required by Section 314 (if any) of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent. The
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Guarantor shall provide to the Capital Trust Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Capital
Trust Guarantee that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 Capital Guarantee Event of Default; Waiver. The Holders of a
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Majority in Liquidation Amount of the Capital Trust Securities may, by vote or
written consent, on behalf of the Holders of all of the Capital Trust
Securities, waive any past Capital Guarantee Event of Default and its
consequences. Upon such waiver, any such Capital Guarantee Event of Default
shall cease to exist, and any Capital Guarantee Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Capital
Trust Guarantee, but no such waiver shall extend to any subsequent or other
default or Capital Guarantee Event of Default or impair any right consequent
thereon.
SECTION 2.7 Capital Guarantee Event of Default; Notice.
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(a) The Capital Trust Guarantee Trustee shall, within 90 days after
the occurrence of a Capital Guarantee Event of Default, transmit by mail, first
class postage prepaid, to the Holders of the Capital Trust Securities, notices
of all Capital Guarantee Events of Default actually known to a Responsible
Officer of the Capital Trust Guarantee Trustee, unless such defaults have been
cured before the giving of such notice; provided, that the Capital Trust
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Capital Trust Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Capital Trust Securities.
(b) The Capital Trust Guarantee Trustee shall not be deemed to have
knowledge of any Capital Guarantee Event of Default unless the Capital Trust
Guarantee Trustee shall have received written notice thereof or a Responsible
Officer of the Capital Trust Guarantee Trustee charged with the administration
of the Capital Trust Declaration shall have obtained actual knowledge thereof.
SECTION 2.8 Conflicting Interests. The Capital Trust Declaration shall be
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deemed to be specifically described in this Capital Trust Guarantee for the
purposes of clause (i) of the first provision contained in Section 310(b) of the
Trust Indenture Act.
SECTION 2.9 Disclosure of Information. The disclosure of information as
-------------------------
to the names and addresses of the Holders of the Capital Trust Securities in
accordance with Section 312 of the Trust Indenture Act, regardless of the source
from which such information was derived, shall
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not be deemed to be a violation of any existing law, or any law hereafter
enacted which does not specifically refer to Section 312 of the Trust Indenture
Act, nor shall the Capital Trust Guarantee Trustee be held accountable by reason
of mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
SECTION 2.10 Capital Trust Guarantee Trustee May File Proofs of Claim.
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Upon the occurrence of a Capital Guarantee Event of Default, the Capital Trust
Guarantee Trustee is hereby authorized to (a) recover judgment, in its own name
and as trustee of an express trust, against the Guarantor for the whole amount
of any Capital Guarantee Payments remaining unpaid and (b) file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have its claims and those of the Holders of the Capital Trust Securities allowed
in any judicial proceedings relative to the Guarantor, its creditors or its
property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL TRUST
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Capital Trust Guarantee Trustee.
----------------------------------------------------
(a) This Capital Trust Guarantee shall be held by the Capital
Trust Guarantee Trustee on behalf of the Capital Trust for the benefit of the
Holders of the Capital Trust Securities, and the Capital Trust Guarantee Trustee
shall not transfer this Capital Trust Guarantee to any Person except a Holder of
Capital Trust Securities exercising his or her rights pursuant to Section 5.4(b)
or to a Successor Capital Trust Guarantee Trustee on acceptance by such
Successor Capital Trust Guarantee Trustee. The right, title and interest of the
Capital Trust Guarantee Trustee in and to this Capital Trust Guarantee shall
automatically vest in any Successor Capital Trust Guarantee Trustee, and such
vesting and succession of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Capital Trust Guarantee Trustee.
(b) If a Capital Guarantee Event of Default actually known to a
Responsible Officer of the Capital Trust Guarantee Trustee has occurred and is
continuing, the Capital Trust Guarantee Trustee shall enforce this Capital Trust
Guarantee for the benefit of the Holders of the Capital Trust Securities.
(c) The Capital Trust Guarantee Trustee, before the occurrence of
any Capital Guarantee Event of Default and after the curing of all Capital
Guarantee Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Capital Trust Guarantee,
and no implied covenants shall be read into this Capital Trust Guarantee against
the Capital Trust Guarantee Trustee. In case a Capital Guarantee Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
and is actually known to a Responsible Officer of the Capital Trust Guarantee
Trustee, the Capital Trust Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Capital Trust
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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 Capital Trust Guarantee shall be
construed to relieve the Capital Trust 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 Capital Guarantee Event of
Default and after the curing or waiving of all such Capital Guarantee Events of
Default that may have occurred:
(A) the duties and obligations of the Capital Trust
Guarantee Trustee shall be determined solely by the express
provisions of this Capital Trust Guarantee, and the Capital Trust
Guarantee Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in
this Capital Trust Guarantee, and no implied covenants or
obligations shall be read into this Capital Trust Guarantee
against the Capital Trust Guarantee Trustee; and
(B) in the absence of willful misconduct on the part of
the Capital Trust Guarantee Trustee, the Capital Trust 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 Capital Trust Guarantee
Trustee and conforming to the requirements of this Capital Trust
Guarantee; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Capital Trust Guarantee Trustee, the Capital
Trust Guarantee Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of
this Capital Trust Guarantee;
(ii) the Capital Trust Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the Capital
Trust Guarantee Trustee, unless it shall be proved that the Capital Trust
Guarantee Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Capital Trust Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Capital Trust Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the Capital
Trust Guarantee Trustee, or exercising any trust or other power conferred upon
the Capital Trust Guarantee Trustee under this Capital Trust Guarantee; and
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(iv) no provision of this Capital Trust Guarantee shall require
the Capital Trust Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers.
SECTION 3.2 Certain Rights of Capital Trust Guarantee Trustee.
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(a) Subject to the provisions of Section 3.1:
(i) The Capital Trust 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
Capital Trust Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) Whenever, in the administration of this Capital Trust
Guarantee, the Capital Trust Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any action
hereunder, the Capital Trust Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request
and conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) The Capital Trust Guarantee Trustee shall have no duty to
see to any recording, filing or registration or any instrument (or any
rerecording, refiling or registration thereof);
(v) The Capital Trust 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
Capital Trust Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Capital Trust Guarantee from
any court of competent jurisdiction;
(vi) The Capital Trust Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this Capital
Trust Guarantee at the request or direction of any Holder, unless such Holder
shall have provided to the Capital Trust Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Capital Trust Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Capital Trust 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 Capital Trust Guarantee Trustee; provided, that nothing
10
contained in this Section 3.2(a)(vi) shall be taken to relieve the Capital Trust
Guarantee Trustee, upon the occurrence of a Capital Guarantee Event of Default,
of its obligation to exercise the rights and powers vested in it by this Capital
Trust Guarantee;
(vii) The Capital Trust 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 Capital Trust Guarantee Trustee, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Capital Trust Guarantee Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Guarantor, personally or by agent or attorney;
(viii) The Capital Trust 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 Capital Trust Guarantee;
(ix) The Capital Trust Guarantee Trustee shall not be deemed to
have notice of any default hereunder unless a Responsible Officer of the Capital
Trust Guarantee Trustee has actual knowledge thereof or unless a written notice
of any event which is in fact such a default is received by the Capital Trust
Guarantee Trustee at its Corporate Trust Office, and such notice references this
Capital Trust Guarantee;
(x) The rights, privileges, protections, immunities and benefits
given to the Capital Trust Guarantee Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by the
Capital Trust Guarantee Trustee in its capacity hereunder, and to each agent or
other Person employed to act hereunder;
(xi) The Capital Trust Guarantee Trustee may execute any of the
trust or other powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the Capital
Trust 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;
(xii) Any action taken by the Capital Trust Guarantee Trustee or
its agents hereunder shall bind the Holders of the Capital Trust Securities, and
the signature of the Capital Trust 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 Capital Trust Guarantee Trustee
to so act or as to its compliance with any of the terms and provisions of this
Capital Trust Guarantee, both of which shall be conclusively evidenced by the
Capital Trust Guarantee Trustee's or its agent's taking such action; and
11
(xiii) Whenever in the administration of this Capital Trust
Guarantee the Capital Trust Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any other
action hereunder, the Capital Trust Guarantee Trustee (i) may request
instructions from the Holders of a Majority in Liquidation Amount of the Capital
Trust Securities, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in accordance with such
instructions.
(b) No provision of this Capital Trust Guarantee shall be deemed to
impose any duty or obligation on the Capital Trust 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
Capital Trust 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 Capital Trust Guarantee Trustee shall be construed to be a
duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Trust
---------------------------------------------------------
Guarantee. The recitals contained in this Capital Trust Guarantee shall be
- ---------
taken as the statements of the Guarantor, and the Capital Trust Guarantee
Trustee does not assume any responsibility for their correctness. The Capital
Trust Guarantee Trustee makes no representations as to the validity or
sufficiency of this Capital Trust Guarantee.
ARTICLE IV
CAPITAL TRUST GUARANTEE TRUSTEE
SECTION 4.1 Capital Trust Guarantee Trustee; Eligibility.
--------------------------------------------
(a) There shall be at all times a Capital Trust 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 of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 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 publishes
reports of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
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(b) If at any time the Capital Trust Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Capital Trust Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Capital Trust Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Trust Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Capital Trust
-----------------------------------------------------
Guarantee Trustee.
- -----------------
(a) No resignation or removal of the Capital Trust Guarantee
Trustee and no appointment of a Successor Capital Trust Guarantee Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the Successor Capital Trust Guarantee Trustee by written
instrument executed by the Successor Capital Trust Guarantee Trustee and
delivered to the Holders and the Capital Trust Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Capital Trust
Guarantee Trustee may resign at any time by giving written notice thereof to the
Holders. In such event, the Guarantor shall appoint a successor to serve as the
Capital Trust Guarantee Trustee. If the instrument of acceptance by the
Successor Capital Trust Guarantee Trustee shall not have been delivered to the
Capital Trust Guarantee Trustee within 30 days after the giving of such notice
of resignation, the Capital Trust Guarantee Trustee may petition, at the expense
of the Guarantor, any court of competent jurisdiction for the appointment of a
Successor Capital Trust Guarantee Trustee.
(c) The Capital Trust Guarantee Trustee may be removed for cause at
any time by Act (within the meaning of Section 104 of the Indenture) of the
Holders of at least a Majority in Liquidation Amount of the Capital Trust
Securities, delivered to the Capital Trust Guarantee Trustee. If any instrument
of acceptance by a Successor Capital Trust Guarantee Trustee shall not have been
delivered to the Capital Trust Guarantee Trustee within 30 days after the giving
of such notice of removal, the removed Capital Trust Guarantee Trustee may
petition, at the expense of the Guarantor, any court of competent jurisdiction
for the appointment of a Successor Capital Trust Guarantee Trustee.
(d) If the Guarantor shall fail to appoint a successor, or if a
Capital Trust Guarantee Trustee shall be removed or become incapable of acting
as Capital Trust Guarantee Trustee, or if any vacancy shall occur in the office
of any Capital Trust Guarantee Trustee for any cause, the Holders of the Capital
Trust Securities, by Act of the Holders of record of not less than 25% in
aggregate liquidation amount of the Capital Trust Securities then outstanding
delivered to such Capital Trust Guarantee Trustee, shall promptly appoint a
successor Capital Trust Guarantee Trustee. If no Successor Capital Trust
Guarantee Trustee shall have been so appointed by the Holders of the Capital
Trust Securities and such appointment accepted by the
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Successor Capital Trust Guarantee Trustee, any Holder, on behalf of himself and
all others similarly situated, may petition any court of competent jurisdiction
for the appointment of a Successor Capital Trust Guarantee Trustee.
(e) No Capital Trust Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Capital Trust Guarantee Trustee.
(f) Upon termination of this Capital Trust Guarantee or removal or
resignation of the Capital Trust Guarantee Trustee pursuant to this Section 4.2,
the Guarantor shall pay to the Capital Trust Guarantee Trustee all amounts owing
for fees and reimbursement of expenses which have accrued to the date of such
termination, removal or resignation.
(g) The Guarantor shall promptly notify the Holders of the
resignation, removal or appointment of the Capital Trust Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Capital Guarantee Payments (without duplication of amounts
theretofore paid by the Capital Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Capital Trust may have or
assert; provided that the Guarantor may not make any Capital Guarantee Payment
under this Capital Trust Guarantee without obtaining Regulatory Approval. The
Guarantor's obligation to make a Capital Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Capital Trust to pay such amounts to the Holders. In addition
without in any way limiting the scope of this Article V, the Guarantor hereby
confirms that it has expressly assumed and is liable for the due and punctual
payment of the Capital Guarantee Payments payable pursuant to Section 5.1 of the
First Maryland Guarantee and the due and punctual performance and observance of
all of the convenants and conditions of the First Maryland Guarantee to be
performed by First Maryland Bancorp, as fully and completely as if the Guarantor
had executed and delivered the First Maryland Guarantee.
In addition, the Guarantor hereby irrevocably and unconditionally agrees to
cause the Capital Trust to deliver to the Holders, upon dissolution of the
Capital Trust as a result of a Capital Trust Special Event, one Asset Trust
Preferred Security per Capital Trust Security.
SECTION 5.2 Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Capital Trust
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 Capital
Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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SECTION 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Capital Trust Guarantee shall be absolute and unconditional and shall
remain in full force and effect until the entire liquidation amount of all
outstanding Capital Trust Securities shall have been paid and such obligation
shall in no way be affected or impaired by reason of the happening from time to
time of any event, including without limitation, the following, whether or not
with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Capital Trust of any express or implied
agreement, covenant, term or condition relating to the Capital Trust Securities
to be performed or observed by the Capital Trust;
(b) The extension of time for the payment by the Capital Trust of all
or any portion of the Distributions, Redemption Price (as defined in the
Indenture), Liquidation Distribution or any other sums payable under the terms
of the Capital Trust Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with the Capital
Trust Securities;
(c) Any failure, omission, delay or lack of diligence on the part of
the Capital Property Trustee or the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Capital Property Trustee or
the Holders pursuant to the terms of the Capital Trust Securities, or any action
on the part of the Capital Trust granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Capital Trust or any of the
assets of the Capital Trust;
(e) Any invalidity of, or defect or deficiency in, the Capital Trust
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 Capital Trust Guarantee Trustee or the
Holders to give notice to, or obtain consent of the Guarantor or any other
Person with respect to the happening of any of the foregoing.
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No set-off, counterclaim, reduction or diminution of any obligation, or any
defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Capital Trust Guarantee.
SECTION 5.4 Rights of Holders.
-----------------
(a) The Holders of a Majority in Liquidation Amount of the
Capital Trust Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Capital Trust
Guarantee Trustee in respect of this Capital Trust Guarantee or exercising any
trust or other power conferred upon the Capital Trust Guarantee Trustee under
this Capital Trust Guarantee.
(b) If the Capital Trust Guarantee Trustee fails to enforce this
Capital Trust Guarantee, then any Holder of Capital Trust Securities may,
subject to the subordination provisions of Section 6.2, institute a legal
proceeding directly against the Guarantor to enforce the Capital Trust Guarantee
Trustee's rights under this Capital Trust Guarantee without first instituting a
legal proceeding against the Capital Trust, the Capital Trust Guarantee Trustee
or any other Person or entity. Notwithstanding the foregoing, if the Guarantor
has failed to make a Capital Trust Guarantee Payment, a Holder of Capital Trust
Securities may, subject to the subordination provisions of Section 6.2, directly
institute a proceeding against the Guarantor for enforcement of the Capital
Trust Guarantee for such Holder's pro rata share of such Capital Trust Guarantee
Payment. The Guarantor hereby waives any right or remedy to require that any
action on this Capital Trust Guarantee be brought first against the Capital
Trust or any other Person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment.
--------------------
This Capital Trust Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Capital Trust Securities against the Capital Trust in respect of any amounts
paid to such Holders by the Guarantor under this Capital Trust Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation of any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Capital Trust
Guarantee, if at the time of any such payment, any amounts are due and unpaid
under this Capital Trust Guarantee. 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 Capital
Trust Guarantee Trustee for the benefit of 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 Capital Trust with respect to the Capital Trust
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Capital Guarantee Payments pursuant to the terms of this
Capital Trust Guarantee notwithstanding the occurrence of any event referred to
in subsections 5.3(a) through 5.3(g), inclusive, hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
--------------------------
So long as any Capital Trust Securities remain outstanding, if for any
period a Capital Guarantee Event of Default has occurred and is continuing,
then, unless and until, since the curing or waiver of any such default, the
Capital Trust has made Distributions on the Capital Trust Preferred Securities
in full on four consecutive Distribution Payment Dates, the Guarantor shall not,
and shall not permit any subsidiary of the Guarantor, (x) to declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, the Guarantor's capital stock or (y) to
make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Guarantor that rank pari passu
with or junior in interest and right of payment to the Debentures or make any
guarantee payments with respect to any guarantee by the Guarantor of the debt
securities of any Subsidiary if such guarantee ranks pari passu with or junior
in interest and right of payment to the Debentures (other than (1) any
declaration or payment of a dividend or distribution on, or any payment of
principal, premium, if any, or interest on any guarantee, debt security or
instrument of the Guarantor ranking pari passu with the Debentures that is made
on a pro rata basis with all other such guarantees, debt securities and
instruments, including the Debentures and the Asset Trust Preferred Guarantee,
(2) repurchases, redemptions or other acquisitions of shares of capital stock of
the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants or in connection with a dividend reinvestment
or stockholder stock purchase plan, (3) as a result of an exchange or conversion
of any class or series of the Guarantor's capital stock (or any capital stock of
a subsidiary of the Guarantor) for any class or series of the Guarantor's
capital stock or of any class of series of the Guarantor `s indebtedness for any
class or series of the Guarantor's capital stock, (4) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, (5) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, or (6) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the
17
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 pari passu with or
junior to such stock)).
SECTION 6.2 Ranking.
-------
This Capital Trust Guarantee will constitute an unsecured obligation of the
Guarantor and will rank pari passu with the Guarantor's obligations under the
Debentures, the Asset Trust Preferred Guarantee and equally with or junior to
the Guarantor's obligations under any other instrument or agreement of the
Guarantor which is stated to rank equally with or senior to, as the case may be,
the Guarantor's obligation under this Capital Trust Guarantee.
If a Capital Trust Enforcement Event (as defined in the Capital Trust
Declaration) has occurred and is continuing under the Capital Trust Declaration,
the rights of the holders of the Capital Trust Common Securities to receive
Capital Guarantee Payments hereunder shall be subordinated to the rights of the
holders of the Capital Trust Preferred Securities to receive payment of all
amounts due and owing hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
-----------
This Capital Trust Guarantee shall terminate upon (a) full payment of the
Redemption Price of all Capital Trust Securities, (b) the distribution of the
Asset Trust Preferred Securities to the Holders of all the Capital Trust
Securities as a result of a Capital Trust Special Event, and (c) upon full
payment of the amounts payable in accordance with the Capital Trust Declaration
upon liquidation of the Capital Trust. Notwithstanding the foregoing, this
Capital Trust Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder of Capital Trust Securities must
restore payment of any sums paid under the Capital Trust Securities or under
this Capital Trust Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in
18
good faith in accordance with this Capital Trust 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 Capital Trust 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 Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Capital Trust Securities
might properly be paid.
SECTION 8.2 Indemnification.
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against any and all loss, liability, damage,
claim or expense , including taxes (other than taxes based on the income of such
Indemnified Person received as a result of its duties hereunder) incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the Capital Trust hereunder, including
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against, or investigating, any claim (whether asserted by the
Guarantor, a Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Capital Trust Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
----------------------
All guarantees and agreements contained in this Capital Trust Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Capital Trust
Securities then outstanding.
SECTION 9.2 Amendments.
----------
Except with respect to any changes that do not adversely affect the rights
of the Holders (in which case no consent of the Holders will be required), this
Capital Trust Guarantee may only be amended with the prior approval of the
Holders of at least a Majority in Liquidation Amount of the Capital Trust
Securities. The provisions of Section 11.2 of the Capital Trust
19
Declaration with respect to meetings of, and action by written consent of the
Holders of the Capital Trust Securities apply to the giving of such approval.
SECTION 9.3 Consolidations and Mergers.
--------------------------
The Guarantor may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other corporation;
provided, that in any such case, (i) either the Guarantor shall be the
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continuing corporation, or the successor corporation shall be a corporation
organized and existing under the laws of the United States of America thereof
and such successor corporation shall expressly assume the due and punctual
payment of the Capital Guarantee Payments payable pursuant to Section 5.1 hereof
and the due and punctual performance and observance of all of the covenants and
conditions of this Capital Trust Guarantee to be performed by the Guarantor by a
separate guarantee satisfactory to the Capital Trust Guarantee Trustee, executed
and delivered to the Capital Trust Guarantee Trustee by such corporation, and
(ii) the Guarantor or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or condition.
SECTION 9.4 Notices.
-------
All notices provided for in this Capital Trust Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied (and promptly confirmed by mail) or mailed by registered or certified
mail (provided that notice to Holders may be by first-class mail, postage pre-
paid), as follows:
(a) If given to the Capital Trust Guarantee Trustee, at the Capital
TrustGuarantee Trustee's mailing address set forth below (or such other address
as the Capital Trust Guarantee Trustee may give notice of to the Guarantor and
the Holders of the Capital Trust Securities):
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Fax: (212815-5915
(b) If given to the Guarantor, at the Guarantor's mailing addresses
set forth below (or such other address as the Guarantor may give notice of to
the Capital Trust Guarantee Trustee and the Holders of the Capital Trust
Securities):
Allfirst Financial Inc.
25 South Charles Street,
Baltimore, Maryland 21201
Attn: General Counsel
20
Fax: (410) 244-3817
(c) If given to any Holder of Capital Trust Securities, at the
address set forth on the books and records of the Capital Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.5 Benefit.
-------
This Capital Trust Guarantee is solely for the benefit of the Holders of
the Capital Trust Securities and, subject to Section 3.1(a), is not separately
transferable from the Capital Trust Securities.
SECTION 9.6 Governing Law.
-------------
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CONFLICTS OF LAWS PRINCIPLES THEREOF.
21
IN WITNESS WHEREOF, this Capital Trust Guarantee is executed as of the day
and year first above written.
ALLFIRST FINANCIAL INC.,
as Guarantor
By:________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Capital Trust Guarantee Trustee
By:________________________________
Name:
Title:
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