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EXHIBIT 4.8
AGREEMENT AS TO EXPENSES AND LIABILITIES
This Agreement as to Expenses and Liabilities (this "Agreement") dated
as of ___________, 1997, is by and between United Financial Holdings, Inc., a
Florida corporation (the "Company"), and UFH Capital Trust I, a Delaware
business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive the Company's _____% Junior Subordinated Debentures
due _________, 1998 (the "Debentures") from, the Company and to issue and sell
its _____% Cumulative Trust Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust dated as of
________, 1998, as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges shall be made in reliance
upon the execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
Section 1.1 Guarantee by the Company. Subject to the terms and conditions of
this Agreement, the Company, including in its capacity as holder of the Common
Securities, hereby irrevocably and unconditionally guarantees to each person or
entity to whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment when and as due, of any and all Obligations
(as defined herein) to such Beneficiaries. As used herein, "Obligations" means
any costs, expenses or liabilities of the Trust other than obligations of the
Trust to pay to holders of any Preferred Securities, Common Securities or other
similar interests in the Trust the amounts due such holders pursuant to the
terms of the Preferred Securities, Common Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.2 Term of Agreement. This Agreement shall terminate and be of no
further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Preferred
Securities (whether upon redemption, liquidation, exchange or otherwise); and
(b) the date on which no
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Obligations remain outstanding; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Preferred Securities Guarantee Agreement dated the date of this Agreement
between the Company and Wilmington Trust Company, as guarantee trustee, or under
this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.3 Waiver of Notice. The Company hereby waives notice of acceptance of
this Agreement and of any Obligation to which it applies or may apply, and the
Company hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 1.4 No Impairment. The obligations, covenants, agreements and duties of
the Company under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or
(c) 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
Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.5 Enforcement. A Beneficiary may enforce this Agreement directly
against the Company, and the Company waives any right or remedy to require that
any action be brought against the Trust or any other person or entity before
proceeding against the Company.
ARTICLE II
Section 2.1 Binding Effect. All guarantees and agreements contained in this
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
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Section 2.2 Amendment. So long as there remains any Beneficiary or any Preferred
Securities of any series are outstanding, this Agreement shall not be modified
or amended in any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.3 Notices. Any notice, request or other communication required or
permitted to be given under this Agreement shall be given in writing by
delivering the same by facsimile transmission (confirmed by mail), telecopy, or
by registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answerback, if sent by telecopy):
UFH Capital Trust I
c/o United Financial Holdings, Inc.
000 Xxxxx Xxxxxx, Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Executive Officer
United Financial Holdings, Inc.
000 Xxxxx Xxxxxx, Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Executive Officer
Section 2.4 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Florida (without regard
to conflict of laws principles).
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Section 2.5 This Agreement is executed as of the day and year first above
written.
UNITED FINANCIAL HOLDINGS, INC.
By:
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Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
UFH CAPITAL TRUST I
By:
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Name: Xxxx X. Xxxxxx
Title: Administrative Trustee
