EXHIBIT 4.6
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SERIES B ASSET TRUST PREFERRED GUARANTEE AGREEMENT
ALLFIRST PREFERRED ASSET 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)
_________________________
/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
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 Asset Trust Securities......................................... 6
SECTION 2.3 Reports by Asset Trust Preferred Guarantee Trustee................................. 6
SECTION 2.4 Periodic Reports to Asset Trust Preferred Guarantee Trustee........................ 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent................................... 7
SECTION 2.6 Asset Guarantee Event of Default; Waiver........................................... 7
SECTION 2.7 Asset Guarantee Event of Default; Notice........................................... 7
SECTION 2.8 Conflicting Interests.............................................................. 7
SECTION 2.9 Disclosure of Information.......................................................... 7
SECTION 2.10 Asset Trust Preferred Guarantee Trustee May File Proofs of Claim.................. 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF ASSET TRUST GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Asset Trust Preferred Guarantee Trustee....................... 8
SECTION 3.2 Certain Rights of Asset Trust Preferred Guarantee Trustee.......................... 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Asset Trust Preferred Guarantee........ 12
ARTICLE IV
ASSET TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Asset Trust Preferred Guarantee Trustee; Eligibility............................... 13
SECTION 4.2 Appointment, Removal and Resignation of Asset Trust Preferred
Guarantee Trustee.................................................................. 13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.......................................................................... 15
SECTION 5.2 Waiver of Notice and Demand........................................................ 15
SECTION 5.3 Obligations Not Affected........................................................... 15
SECTION 5.4 Rights of Holders.................................................................. 16
SECTION 5.5 Guarantee of Payment............................................................... 17
SECTION 5.6 Subrogation........................................................................ 17
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........................................................................... 19
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation........................................................................... 19
SECTION 8.2 Indemnification....................................................................... 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns................................................................ 20
SECTION 9.2 Amendments............................................................................ 20
SECTION 9.3 Consolidations and Mergers............................................................ 20
SECTION 9.4 Notices............................................................................... 21
SECTION 9.5 Benefit............................................................................... 21
SECTION 9.6 Governing Law......................................................................... 22
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SERIES B ASSET TRUST PREFERRED GUARANTEE AGREEMENT
This SERIES B ASSET TRUST PREFERRED GUARANTEE AGREEMENT (the "Asset Trust
Preferred Guarantee"), dated as of _______, 1999, is executed and delivered by
Allfirst Financial Inc. (the "Guarantor"), a Delaware corporation and the
success or by merger to First Maryland Bancorp, and The Bank of New York (the
"Asset Trust Preferred Guarantee Trustee"), a New York banking corporation, as
trustee, for the benefit of the Holders (as defined herein) of the Asset Trust
Securities (as defined herein) of Allfirst Preferred Asset Trust (the "Asset
Trust"), a Delaware statutory business trust.
W I T N E S S E T H:
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WHEREAS, pursuant to the Asset Trust Declaration (as defined herein), on
July 13, 1999 the Asset Trust $103,093,000 aggregate liquidation amount of its
Floating Rate Non-Cumulative Subordinated Asset Trust Securities, Series A (the
"Old Asset Trust Preferred Securities"), having a liquidation amount of $1,000
per Asset Trust Preferred Security and $7,760,000 aggregate liquidation amount
of its Floating Rate Non-Cumulative Subordinated Asset Trust Common Securities,
having a liquidation amount of $1,000 per common security (the "Asset Trust
Common Securities");
WHEREAS, the Old Asset Trust Preferred Securities were irrevocably and
unconditionally guaranteed by First Maryland Bancorp, to the extent set forth
in the Series A Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee
its Series A Asset Trust Preferred Guarantee Agreement dated as of September 15,
1999 (the "Old Guarantee");
WHEREAS, pursuant to the Registration Rights Agreement (as defined in the
Asset Trust Declaration), Allfirst Preferred Capital Trust and Asset Trust wish
to exchange the Old Asset Trust Preferred Securities for $103,093,000 aggregate
liquidation amount of Asset Trust's Floating Rate Non-Cumulative Subordinated
Asset Trust Securities, Series B, liquidation amount of $1,000 per asset trust
preferred security (the "Asset 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
Asset Trust Declaration), the Guarantor and the Asset Trust Preferred Guarantee
Trustee wish to exchange the Old Guarantee for this Series B Asset Trust
Preferred 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 Asset Trust Preferred
Securities;
WHEREAS, as incentive for the Holders to retain the Asset Trust Preferred
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 Asset Trust Preferred Securities the
Asset Guarantee Payments (as defined herein) and to make certain other payments
of the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the Guarantor executes
and delivers this Asset Trust Preferred Guarantee for the benefit of the
Holders.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. In this Asset Trust Preferred
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Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Asset Trust Preferred 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 Asset Trust Preferred Guarantee
has the same meaning throughout;
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(c) all references to "the Asset Trust Preferred Guarantee" or "this
Asset Trust Preferred Guarantee" are to this Asset Trust Preferred
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Asset Trust Preferred Guarantee to
Articles and Sections are to Articles and Sections of this Asset Trust
Preferred Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Asset Trust Preferred Guarantee, unless otherwise defined
in this Asset Trust Preferred 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 Guarantee Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Asset Trust Preferred
Guarantee.
"Asset Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Asset Trust
Preferred Securities, to the extent not paid or made by the Asset Trust:
(i) any Distributions (as defined in the Asset Trust Declaration) on such
Asset Trust Preferred Securities not paid on such Preferred Distribution
Payment Date (as defined in the Asset Trust Declaration) to the extent the
Asset Trust shall have at the time funds that represent interest, other
than Deferred Interest (as defined in the Indenture), paid to the Asset
Trust with respect to the Interest Payment Date (as defined in the
Indenture) that occurs on such Preferred Distribution Payment Date, (ii)
the redemption price, including all unpaid Distributions to the date of
redemption that have accrued since the immediately preceding Preferred
Distribution Payment Date, with respect to any Asset Trust Preferred
Securities called for redemption by the Asset Trust, to the extent the
Asset Trust shall have at the time funds that represent the redemption
price of the Debentures, other than Deferred Interest, paid to the Asset
Trust upon the redemption of the Debentures, in whole or in part, and,
(iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Asset Trust, the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Asset
Trust Preferred Securities that have accrued since the immediately
preceding Preferred Distribution Payment Date, and (b) the amount of assets
of the Asset Trust, after satisfaction of all liabilities, remaining
available for distribution to Holders of the Asset Trust Preferred
Securities in liquidation of the Asset Trust (in either case, the
"Liquidation Distribution").
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"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 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 Trustee" means The Bank of New York,
until a successor Asset Trust Preferred Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Asset Trust Preferred Guarantee and thereafter means each such Successor
Asset Trust Preferred Guarantee Trustee.
"Asset Trust Preferred Securities" has the meaning set forth in the
recitals to this Asset Trust Preferred Guarantee.
"Asset Trust Special Event" has the meaning set forth in the Asset
Trust Declaration.
"Business Day" has the meaning given to such term in the Indenture.
"Capital Trust" means Allfirst Preferred Capital Trust.
"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" means the Series B Capital Trust Guarantee
Agreement, dated as of _______, 1999, entered into by the Guarantor, for
the benefit of the Holders of the Capital Trust Securities.
"Capital Trust Preferred Securities" has the meaning set forth in the
Capital Trust Declaration.
"Corporate Trust Office" means the office of the Asset Trust Preferred
Guarantee Trustee at which the corporate trust business of the Asset Trust
Preferred Guarantee Trustee shall at any particular time, be principally
administered, which office at the date of execution of this Asset Trust
Preferred Guarantee is located at The Bank of New York, 000 Xxxxxxx Xxxxxx,
Xxxxx 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.
"Covered Person" means any Holder or beneficial owner of Asset Trust
Preferred Securities.
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"Debenture Issuer" means Allfirst Financial Inc. in its capacity as
issuer of the Debentures under the Indenture.
"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).
"Exchange Offer" has the meaning set forth in the Asset Trust
Declaration.
"Holder" shall mean any holder of Asset Trust Preferred Securities, as
registered on the books and records of the Asset Trust; provided, however,
that, in determining whether the Holders of the requisite percentage of
Asset 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 Asset Trust Preferred
Securities; and provided further, that in determining whether the Holders
of the requisite liquidation amount of Asset Trust Preferred Securities
have voted on any matter provided for in this Asset Trust Preferred
Guarantee, then for the purpose of such determination only (and not for any
other purpose hereunder), if the Asset Trust Preferred Securities remain in
the form of one or more Global Securities (as defined in the Asset Trust
Declaration), the term "Holders" shall mean the holder of the Global
Security acting at the direction of the beneficial owners of the Asset
Trust Preferred Securities.
"Indemnified Person" means the Asset Trust Preferred Guarantee
Trustee, any Affiliate of the Asset Trust Preferred Guarantee Trustee, and
any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Asset Trust
Preferred 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 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 Asset Trust Preferred
Securities" means, except as provided in the terms of the Asset Trust
Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Asset Trust Preferred Securities, voting separately as a class,
who are the record holders of more than 50% of the aggregate liquidation
amount of all outstanding Asset Trust Preferred Securities. In determining
whether the Holders of the requisite amount of Asset Trust Preferred
Securities have voted, Asset Trust Preferred Securities which are owned by
the Guarantor or any Affiliate of the Guarantor shall be disregarded for
the purpose of any such determination.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Asset Trust Declaration) of such Person. Any Officers'
Certificate delivered with respect to
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compliance with a condition or covenant provided for in this Asset Trust
Preferred 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 Asset Trust Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the
Asset Trust Preferred 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 Asset Trust Preferred
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 Asset Trust Preferred Guarantee Trustee" means a successor
Asset Trust Preferred Guarantee Trustee possessing the qualifications to
act as Asset Trust Preferred Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
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(a) This Asset Trust Preferred Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Asset Trust
Preferred Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Asset Trust
Preferred 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 Asset Trust Securities.
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(a) The Guarantor shall provide the Asset Trust Preferred Guarantee
Trustee with a list, in such form as the Asset Trust Preferred Guarantee Trustee
may reasonably require, of the names and addresses of the Holders of the Asset
Trust Preferred 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 Asset Trust Preferred Guarantee Trustee may request
in writing, within 30 days of receipt by the Guarantor of a written request from
the Asset Trust Preferred 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 Asset Trust
Preferred Guarantee Trustee; excluding from any such list names and addresses
received by the Asset Trust Preferred Guarantee Trustee in its capacity as
Security Registrar (as defined in the Indenture). The Asset Trust Preferred
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 Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee. As of May
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15 of each year (commencing with the year of the first anniversary of the
issuance of the Asset Trust Securities), the Asset Trust Preferred Guarantee
Trustee shall provide to the Holders of the Asset Trust Securities such reports
as are required by the Trust Indenture Act (if any) in the form and in the
manner provided therein. The Asset Trust Preferred Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Asset Trust Preferred Guarantee Trustee.
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The Guarantor shall provide to the Asset Trust Preferred Guarantee Trustee such
documents, reports and information as 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
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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 Asset Trust Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Asset Trust Preferred 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 Asset Guarantee Event of Default; Waiver. The Holders of a
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Majority in Liquidation Amount of the Asset Trust Preferred Securities may, by
vote or written consent, on behalf of the Holders of all of the Asset Trust
Preferred Securities, waive any past Asset Guarantee Event of Default and its
consequences. Upon such waiver, any such Asset Guarantee Event of Default shall
cease to exist, and any Asset Guarantee Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Asset Trust Preferred
Guarantee, but no such waiver shall extend to any subsequent or other default or
Asset Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 Asset Guarantee Event of Default; Notice.
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(a) The Asset Trust Preferred Guarantee Trustee shall, within 90 days
after the occurrence of an Asset Guarantee Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Asset Trust Preferred
Securities, notices of all Asset Guarantee Events of Default actually known to a
Responsible Officer of the Asset Trust Preferred Guarantee Trustee, unless such
defaults have been cured before the giving of such notice; provided, that the
Asset Trust Preferred Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Asset Trust Preferred
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Asset Trust Preferred Securities.
(b) The Asset Trust Preferred Guarantee Trustee shall not be deemed
to have knowledge of any Asset Guarantee Event of Default unless the Asset Trust
Preferred Guarantee Trustee shall have received written notice thereof or a
Responsible Officer of the Asset Trust Preferred Guarantee Trustee charged with
the administration of the Asset Trust Declaration shall have obtained actual
knowledge thereof.
SECTION 2.8 Conflicting Interests. The Asset Trust Declaration shall be
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deemed to be specifically described in this Asset Trust Preferred 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
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to the names and addresses of the Holders of the Asset Trust Preferred
Securities in accordance with Section 312 of the Trust Indenture Act, regardless
of the source from which such information was derived, shall not be deemed to be
a violation of any existing law, or any law hereafter enacted
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which does not specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee May File Proofs of
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Claim. Upon the occurrence of an Asset Guarantee Event of Default, the Asset
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Trust Preferred 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 Asset 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 Asset
Trust Preferred Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF ASSET TRUST
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Asset Trust Preferred Guarantee Trustee.
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(a) This Asset Trust Preferred Guarantee shall be held by the Asset
Trust Preferred Guarantee Trustee on behalf of the Asset Trust for the benefit
of the Holders of the Asset Trust Preferred Securities, and the Asset Trust
Preferred Guarantee Trustee shall not transfer this Asset Trust Preferred
Guarantee to any Person except a Holder of Asset Trust Preferred Securities
exercising his or her rights pursuant to Section 5.4(b) or to a Successor Asset
Trust Preferred Guarantee Trustee on acceptance by such Successor Asset Trust
Preferred Guarantee Trustee. The right, title and interest of the Asset Trust
Preferred Guarantee Trustee in and to this Asset Trust Preferred Guarantee shall
automatically vest in any Successor Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee.
(b) If an Asset Guarantee Event of Default actually known to a
Responsible Officer of the Asset Trust Preferred Guarantee Trustee has occurred
and is continuing, the Asset Trust Preferred Guarantee Trustee shall enforce
this Asset Trust Preferred Guarantee for the benefit of the Holders of the Asset
Trust Preferred Securities.
(c) The Asset Trust Preferred Guarantee Trustee, before the
occurrence of any Asset Guarantee Event of Default and after the curing of all
Asset Guarantee Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Asset Trust
Preferred Guarantee, and no implied covenants shall be read into this Asset
Trust Preferred Guarantee against the Asset Trust Preferred Guarantee Trustee.
In case an Asset 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 Asset Trust Preferred Guarantee
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Trustee, the Asset Trust Preferred Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Asset Trust Preferred 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 Asset Trust Preferred Guarantee shall be
construed to relieve the Asset Trust Preferred 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 Asset Guarantee Event of
Default and after the curing or waiving of all such Asset Guarantee Events
of Default that may have occurred:
(A) the duties and obligations of the Asset Trust
Preferred Guarantee Trustee shall be determined solely by the
express provisions of this Asset Trust Preferred Guarantee, and
the Asset Trust Preferred Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Asset Trust Preferred
Guarantee, and no implied covenants or obligations shall be
read into this Asset Trust Preferred Guarantee against the
Asset Trust Preferred Guarantee Trustee; and
(B) in the absence of willful misconduct on the part
of the Asset Trust Preferred Guarantee Trustee, the Asset Trust
Preferred 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 Asset Trust Preferred Guarantee Trustee and conforming
to the requirements of this Asset Trust Preferred Guarantee;
but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished
to the Asset Trust Preferred Guarantee Trustee, the Asset Trust
Preferred Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Asset Trust Preferred Guarantee;
(ii) the Asset Trust Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer of the Asset Trust Preferred Guarantee Trustee, unless it shall be
proved that the Asset Trust Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Asset Trust Preferred 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 Asset Trust Preferred Securities
relating to the time, method and place of conducting any
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proceeding for any remedy available to the Asset Trust Preferred Guarantee
Trustee, or exercising any trust or other power conferred upon the Asset
Trust Preferred Guarantee Trustee under this Asset Trust Preferred
Guarantee; and
(iv) no provision of this Asset Trust Preferred Guarantee shall
require the Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee.
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(a) Subject to the provisions of Section 3.1:
(i) The Asset Trust Preferred 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
Asset Trust Preferred Guarantee shall be sufficiently evidenced by an
Officers' Certificate;
(iii) Whenever, in the administration of this Asset Trust
Preferred Guarantee, the Asset Trust Preferred Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Asset Trust Preferred
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 Asset Trust Preferred 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 Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Asset Trust Preferred Guarantee from any court of
competent jurisdiction;
10
(vi) The Asset Trust Preferred Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Asset Trust Preferred Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Asset Trust Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Asset Trust Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Asset Trust
Preferred 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
Asset Trust Preferred Guarantee Trustee; provided, that nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Asset Trust
Preferred Guarantee Trustee, upon the occurrence of an Asset Guarantee
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Asset Trust Preferred Guarantee;
(vii) The Asset Trust Preferred 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 Asset Trust Preferred
Guarantee Trustee, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Asset Trust Preferred
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 Asset Trust Preferred 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 Asset Trust
Preferred Guarantee;
(ix) The Asset Trust Preferred Guarantee Trustee shall not be
deemed to have notice of any default hereunder unless a Responsible Officer
of the Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee at its Corporate
Trust Office, and such notice references this Asset Trust Preferred
Guarantee;
(x) The rights, privileges, protections, immunities and
benefits given to the Asset Trust Preferred Guarantee Trustee, including,
without limitation, its right to be indemnified, are extended to, and shall
be enforceable by the Asset Trust Preferred Guarantee Trustee in its
capacity hereunder, and to each agent or other Person employed to act
hereunder;
(xi) The Asset Trust Preferred Guarantee Trustee may execute
any of the trust or other powers hereunder or perform any duties hereunder
either directly or by or
11
through agents, nominees, custodians or attorneys, and the Asset
Trust Preferred 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 Asset Trust Preferred Guarantee
Trustee or its agents hereunder shall bind the Holders of the Asset Trust
Securities, and the signature of the Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Asset Trust
Preferred Guarantee, both of which shall be conclusively evidenced by the
Asset Trust Preferred Guarantee Trustee's or its agent's taking such
action; and
(xiii) Whenever in the administration of this Asset Trust
Preferred Guarantee the Asset Trust Preferred Guarantee Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Asset Trust Preferred
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in Liquidation Amount of the Asset Trust Preferred 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 Asset Trust Preferred Guarantee shall be
deemed to impose any duty or obligation on the Asset Trust Preferred 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 Asset Trust Preferred 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 Asset Trust Preferred Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Asset Trust
-------------------------------------------------------
Preferred Guarantee. The recitals contained in this Asset Trust Preferred
-------------------
Guarantee shall be taken as the statements of the Guarantor, and the Asset Trust
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Asset Trust Preferred Guarantee Trustee makes no
representations as to the validity or sufficiency of this Asset Trust Preferred
Guarantee.
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ARTICLE IV
ASSET TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Asset Trust Preferred Guarantee Trustee; Eligibility.
----------------------------------------------------
(a) There shall be at all times an Asset Trust Preferred 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.
(b) If at any time the Asset Trust Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Asset Trust Preferred
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Asset Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Asset Trust Preferred 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 Asset Trust Preferred
-------------------------------------------------------------
Guarantee Trustee.
-----------------
(a) No resignation or removal of the Asset Trust Preferred Guarantee
Trustee and no appointment of a Successor Asset Trust Preferred Guarantee
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the Successor Asset Trust Preferred Guarantee Trustee by written
instrument executed by the Successor Asset Trust Preferred Guarantee Trustee and
delivered to the Holders and the Asset Trust Preferred Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, an Asset Trust
Preferred Guarantee Trustee may resign at any time by giving written notice
thereof to the Holders. In
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such event, the Guarantor shall appoint a successor to serve as the Asset Trust
Preferred Guarantee Trustee. If the instrument of acceptance by the Successor
Asset Trust Preferred Guarantee Trustee shall not have been delivered to the
Asset Trust Preferred Guarantee Trustee within 30 days after the giving of such
notice of resignation, the Asset Trust Preferred Guarantee Trustee may petition,
at the expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Asset Trust Preferred Guarantee Trustee.
(c) The Asset Trust Preferred 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 Asset Trust
Preferred Securities, delivered to the Asset Trust Preferred Guarantee Trustee.
If any instrument of acceptance by a Successor Asset Trust Preferred Guarantee
Trustee shall not have been delivered to the Asset Trust Preferred Guarantee
Trustee within 30 days after the giving of such notice of removal, the removed
Asset Trust Preferred Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for the appointment of a
Successor Asset Trust Preferred Guarantee Trustee.
(d) If the Guarantor shall fail to appoint a successor, or if an
Asset Trust Preferred Guarantee Trustee shall be removed or become incapable of
acting as Asset Trust Preferred Guarantee Trustee, or if any vacancy shall occur
in the office of any Asset Trust Preferred Guarantee Trustee for any cause, the
Holders of the Asset Trust Preferred Securities, by Act of the Holders of record
of not less than 25% in aggregate liquidation amount of the Asset Trust
Preferred Securities then outstanding delivered to such Asset Trust Preferred
Guarantee Trustee, shall promptly appoint a successor Asset Trust Preferred
Guarantee Trustee. If no Successor Asset Trust Preferred Guarantee Trustee shall
have been so appointed by the Holders of the Asset Trust Preferred Securities
and such appointment accepted by the Successor Asset Trust Preferred 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
Asset Trust Preferred Guarantee Trustee.
(e) No Asset Trust Preferred Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Asset Trust Preferred Guarantee
Trustee.
(f) Upon termination of this Asset Trust Preferred Guarantee or
removal or resignation of the Asset Trust Preferred Guarantee Trustee pursuant
to this Section 4.2, the Guarantor shall pay to the Asset Trust Preferred
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 Asset Trust Preferred Guarantee
Trustee.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Asset Guarantee Payments (without duplication of amounts theretofore
paid by the Asset Trust), as and when due, regardless of any defense, right of
set-off or counterclaim that the Asset Trust may have or assert; provided that
the Guarantor may not make any Asset Guarantee Payment under this Asset Trust
Preferred Guarantee without obtaining Regulatory Approval. The Guarantor's
obligation to make an Asset Guarantee Payment may be satisfied by direct payment
of the required amounts by the Guarantor to the Holders or by causing the Asset
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 Asset
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
covenants 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.
SECTION 5.2 Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Asset Trust
Preferred 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 Asset Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Asset Trust Preferred Guarantee shall be absolute and unconditional and
shall remain in full force and effect until the entire liquidation amount of all
outstanding Asset Trust Preferred 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 Asset Trust of any express or implied
agreement, covenant, term or condition relating to the Asset Trust Preferred
Securities to be performed or observed by the Asset Trust;
(b) The extension of time for the payment by the Asset Trust of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Asset Trust Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with the Asset Trust Preferred
Securities;
(c) Any failure, omission, delay or lack of diligence on the part of
the Asset Property Trustee or the Holders to enforce, assert or exercise any
right, privilege, power or
15
remedy conferred on the Asset Property Trustee or the Holders pursuant to the
terms of the Asset Trust Preferred Securities, or any action on the part of the
Asset 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 Asset Trust or any of the assets
of the Asset Trust;
(e) Any invalidity of, or defect or deficiency in, the Asset Trust
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 defence 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 Asset Trust Preferred 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.
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 Asset Trust Preferred Guarantee.
SECTION 5.4 Rights of Holders.
-----------------
(a) The Holders of a Majority in Liquidation Amount of the Asset
Trust Preferred Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Asset Trust
Preferred Guarantee Trustee in respect of this Asset Trust Preferred Guarantee
or exercising any trust or other power conferred upon the Asset Trust Preferred
Guarantee Trustee under this Asset Trust Preferred Guarantee.
(b) If the Asset Trust Preferred Guarantee Trustee fails to enforce
this Asset Trust Preferred Guarantee, then any Holder of Asset Trust Preferred
Securities may, subject to the subordination provisions of Section 6.2,
institute a legal proceeding directly against the Guarantor to enforce the Asset
Trust Preferred Guarantee Trustee's rights under this Asset Trust Preferred
Guarantee without first instituting a legal proceeding against the Asset Trust,
the Asset Trust Preferred Guarantee Trustee or any other Person or entity.
Notwithstanding the foregoing, if the Guarantor has failed to make an Asset
Trust Preferred Guarantee Payment, a Holder of
16
Asset Trust Preferred Securities may, subject to the subordination provisions of
Section 6.2, directly institute a proceeding against the Guarantor for
enforcement of the Asset Trust Preferred Guarantee for such Holder's pro rata
share of such Asset Trust Preferred Guarantee Payment. The Guarantor hereby
waives any right or remedy to require that any action on this Asset Trust
Preferred Guarantee be brought first against the Asset Trust or any other Person
or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
--------------------
This Asset Trust Preferred 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
Asset Trust Preferred Securities against the Asset Trust in respect of any
amounts paid to such Holders by the Guarantor under this Asset Trust Preferred
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 Asset Trust
Preferred Guarantee, if at the time of any such payment, any amounts are due and
unpaid under this Asset Trust Preferred 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
Asset Trust Preferred Guarantee Trustee for the benefit of the Holders.
SECTION 5.7 Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Asset Trust with respect to the Asset Trust Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Asset Guarantee Payments pursuant to the terms of this Asset
Trust Preferred 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 Asset Trust Preferred Securities remain outstanding, if for
any period an Asset Guarantee Event of Default has occurred and is continuing,
then, unless and until, since the curing or waiver of any such default, the
Asset Trust has made Distributions on the Asset Trust Preferred Securities in
full on four consecutive Preferred Distribution Payment Dates, the Guarantor
shall not, and shall not permit any subsidiary of the Guarantor, (x) to declare
or pay
17
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 Capital Trust 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 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 Asset Trust Preferred Guarantee will constitute an unsecured
obligation of the Guarantor and will rank pari passu with the Guarantor's
obligations under the Debentures, the Capital Trust 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 Asset Trust Preferred Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
-----------
This Asset Trust Preferred Guarantee shall terminate upon (a) full payment
of the Redemption Price of all Asset Trust Preferred Securities, and (b)
18
full payment of the amounts payable in accordance with the Asset Trust
Declaration upon liquidation of the Asset Trust. Notwithstanding the foregoing,
this Asset Trust Preferred Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Asset Trust
Preferred Securities must restore payment of any sums paid under the Asset Trust
Preferred Securities or under this Asset Trust Preferred 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 good faith in accordance with this Asset Trust
Preferred 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 Asset Trust Preferred 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 Asset 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 Asset 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 Asset Trust Preferred Guarantee.
19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
----------------------
All guarantees and agreements contained in this Asset Trust Preferred
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Asset Trust Preferred 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
Asset Trust Preferred Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Asset Trust
Preferred Securities. The provisions of Section 11.2 of the Asset Trust
Declaration with respect to meetings of, and action by written consent of the
Holders of the Asset Trust Preferred 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
--------
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 Asset 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 Asset Trust Preferred Guarantee to be performed by the
Guarantor by a separate guarantee satisfactory to the Asset Trust Preferred
Guarantee Trustee, executed and delivered to the Asset Trust Preferred 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 Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee, at the
Asset Trust Preferred Guarantee Trustee's mailing address set forth below (or
such other address as the Asset
20
Trust Preferred Guarantee Trustee may give notice of to the Guarantor and the
Holders of the Asset Trust Securities):
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
(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 Asset Trust Preferred Guarantee Trustee and the Holders of the Asset Trust
Securities):
Allfirst Financial Inc.
00 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
(c) If given to any Holder of Asset Trust Preferred Securities, at
the address set forth on the books and records of the Asset 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 Asset Trust Preferred Guarantee is solely for the benefit of the
Holders of the Asset Trust Preferred Securities and, subject to Section 3.1(a),
is not separately transferable from the Asset Trust Preferred 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 Asset Trust Preferred 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 Asset Trust Preferred Guarantee Trustee
By:__________________________________________
Name:
Title:
22
