Exhibit 4.6
---------------------------------------------
---------------------------------------------
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
INTERWEST BANCORP, INC.
Dated as of _________ ___, 2000
---------------------------------------------
---------------------------------------------
PAGE
----
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ...........................................5
SECTION 2.2 Lists of Holders of Securities ...........................................5
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee....................................6
SECTION 2.4 Periodic Reports 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.......................................6
SECTION 2.6 Waiver of Events of Default ...........................................6
SECTION 2.7 Notice of Events of Default ...........................................6
SECTION 2.8 Conflicting Interests ...........................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee .........................7
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee.................................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Series A Capital Securities
Guarantee. ..........................................10
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility.....................................11
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities Guarantee Trustee..........11
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee ..........................................12
SECTION 5.2 Waiver of Notice and Demand ..........................................12
SECTION 5.3 Obligations Not Affected ..........................................12
SECTION 5.4 Rights of Holders ..........................................13
SECTION 5.5 Guarantee of Payment ..........................................14
SECTION 5.6 Subrogation ..........................................14
SECTION 5.7 Independent Obligations ..........................................14
i
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions ..........................................14
SECTION 6.2 Ranking ..........................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination ..........................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation ..........................................16
SECTION 8.2 Compensation and Indemnification ..........................................16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns ..........................................17
SECTION 9.2 Amendments ..........................................17
SECTION 9.3 Notices ..........................................17
SECTION 9.4 Exchange Offer ..........................................18
SECTION 9.5 Benefit ..........................................18
SECTION 9.6 Governing Law ..........................................19
ii
CROSS REFERENCE TABLE
Section of
Trust Indenture
Act of 1939, as Section of Guarantee
amended Agreement
--------------- ---------
310(a) ...................................................................... 4.1(a)
310(b) ...................................................................... 2.8, 4.1(c)
310(c) ...................................................................... N/A
311(a) ...................................................................... 2.2(b)
311(b) ...................................................................... 2.2(b)
311 (c) ...................................................................... N/A
312(a) ...................................................................... 2.2(a)
312(b) ...................................................................... 2.2(b)
312 (c) ...................................................................... N/A
313 ...................................................................... 2.3
314(a) ...................................................................... 2.4
314(b) ...................................................................... N/A
314(c) ...................................................................... 2.5
314(d) ...................................................................... N/A
314(e) ...................................................................... 1.1, 2.5, 3.2
314(f) ...................................................................... 2.1, 3.2
315(a) ...................................................................... 3.1(d), 3.2(a)
315(b) ...................................................................... 2.7
315(c) ...................................................................... 3.1(c)
315(d) ...................................................................... 3.1(d), 3.2(a), 8.1
315 (e) ...................................................................... N/A
316(a) ...................................................................... 1.1, 2.6, 5.4
316(b) ...................................................................... 5.3, 5.4
316(c) ...................................................................... 9.2
317(a) ...................................................................... N/A
317(b) ...................................................................... N/A
318(a) ...................................................................... 2.1(a)
318(b) ...................................................................... 2.1(b)
318(c) ...................................................................... 2.1(b)
-------------------------
* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
iii
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT (the "Series B
Capital Securities Guarantee"), dated as of _________ ___, 2000, is executed and
delivered by INTERWEST BANCORP, INC., a Washington corporation (the
"Guarantor"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
trustee (the "Capital Securities Guarantee Trustee" or "Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Series B
Capital Securities (as defined herein) of INTERWEST CAPITAL TRUST I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of November 15, 1999, by and among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
(i) has issued on the date hereof 40,000 capital securities, having an aggregate
liquidation amount of $40,000,000, such capital securities being designated the
9.875% Capital Securities, Series B (the "Series B Capital Securities"), in
exchange for a similar amount of its 9.875 % Capital Securities, Series A (the
"Series A Capital Securities") and (ii) in connection therewith, is executing
and delivering this Series B Capital Securities Guarantee (as defined in the
Declaration) for the benefit of Holders of the Series B Capital Securities (as
defined in the Declaration).
WHEREAS, as incentive for the Holders to purchase the Series B Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series B Capital Securities Guarantee, to pay the
Guarantee Payments (as defined herein) to the Holders of the Series B Capital
Securities, and the Guarantor agrees to make certain other payments on the terms
and conditions set forth herein.
WHEREAS, the Guarantor has also executed and delivered the Common
Securities Guarantee Agreement, dated as of November 15, 2000 (the "Common
Securities Guarantee"), for the benefit of the holders of the Common Securities
(as defined herein), the terms of which provide that if an Event of Default (as
defined in the Declaration) has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated, to the extent and in the manner set forth
in the Common Securities Guarantee, to the rights of Holders of Series B Capital
Securities and the Series B Capital Securities to receive Guarantee Payments
under the Series B Capital Securities Guarantee and this Series B Capital
Securities Guarantee, as the case may be.
NOW, THEREFORE, in consideration of the exchange by each Holder of
their Series A Capital Securities for Series B Capital Securities, which
exchange the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Series B Capital Securities Guarantee for
the benefit of such Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION
In this Series B Capital Securities Guarantee, unless the context
otherwise requires:
(1) capitalized terms used in this Series B Capital Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(2) terms defined in the Declaration as in effect at the date of
execution of this Series B Capital Securities Guarantee have the same meaning
when used in this Series B Capital Securities Guarantee unless otherwise
defined in this Series B Capital Securities Guarantee,
(3) a term defined anywhere in this Series B Capital Securities
Guarantee has the same meaning throughout;
(4) all references to "the Series B Capital Securities Guarantee" or
"this Series B Capital Securities Guarantee" are references to this Series B
Capital Securities Guarantee as modified, supplemented or amended from time
to time;
(5) all references in this Series B Capital Securities Guarantee to
Articles and Sections are references to Articles and Sections of this Series
B Capital Securities Guarantee, unless otherwise specified;
(6) a term defined in the Trust Indenture Act has the same meaning
when used in this Series B Capital Securities Guarantee, unless otherwise
defined in this Series B Capital Securities Guarantee or unless the context
otherwise requires; and
(7) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday, or a
day on which banking institutions in Wilmington, Delaware or New York, New York
are authorized or required by law or executive order to remain closed.
"CAPITAL SECURITIES GUARANTEE TRUSTEE" shall mean Wilmington Trust
Company, as Trustee under the Series B Capital Securities Guarantee, until a
Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Series B Capital
Securities Guarantee and thereafter means each such Successor Capital Securities
Guarantee Trustee.
"COMMON SECURITIES" shall mean the securities representing common
undivided beneficial interests in the assets of the Issuer.
2
"CORPORATE TRUST OFFICE" shall mean the office of the Capital
Securities Guarantee Trustee at which the corporate trust business of the
Capital Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration.
"COVERED PERSON" shall mean any Holder or beneficial owner of Series
B Capital Securities.
"DEBENTURES" shall mean the series of subordinated debt securities
of the Guarantor designated the 9.875% Junior Subordinated Deferrable
Interest Debentures due November 15, 2029, Series B, held by the Property
Trustee (as defined in the Declaration) of the Issuer.
"EVENT OF DEFAULT" shall mean a default by the Guarantor on any of
its payment or other obligations under this Series B Capital Securities
Guarantee; PROVIDED, HOWEVER, that, except with respect to default in respect
of any Guarantee Payment, no default by the Guarantor hereunder shall
constitute an Event of Default unless the Guarantor shall have received
written notice of the default and shall not have cured such default within 60
days after receipt thereof.
"GUARANTEE PAYMENTS" shall mean the following payments or
distributions, without duplication, with respect to the Series B Capital
Securities, to the extent not paid or made by or on behalf of the Issuer: (i)
any accumulated and unpaid Distributions (as defined in the Declaration) that
are required to be paid on such Series B Capital Securities, to the extent
the Issuer has funds legally available therefor at such time, (ii) the
redemption price, including all accumulated and unpaid Distributions to the
date of redemption (the "Redemption Price"), to the extent the Issuer has
funds legally available therefor at such time, with respect to any Series B
Capital Securities called for redemption, and (iii) upon a voluntary or
involuntary dissolution, winding up or liquidation of the Issuer (other than
in connection with the distribution of Debentures to the Holders in exchange
for Series B Capital Securities or in connection with the redemption of the
Series B Capital Securities, in each case as provided in the Declaration),
the lesser of (a) the aggregate of the liquidation amount and all accumulated
and unpaid Distributions on the Series B Capital Securities to the date of
payment, to the extent the Issuer has funds legally available therefor at
such time, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders after satisfaction of liabilities to creditors of the
Issuer as required by applicable law (in either case, the "Liquidation
Distribution"). If an Event of Default has occurred and is continuing, no
Guarantee Payments under the Common Securities Guarantee with respect to the
Common Securities or any guarantee payment under the Common Securities
Guarantee or any Other Common Securities Guarantee shall be made until the
Holders of the Series B Capital Securities shall be paid in full the
Guarantee Payments to which they are entitled under this Series B Capital
Securities Guarantee.
"HOLDER" shall mean any holder, as registered on the books and
records of the Issuer, of any Series B Capital Securities; PROVIDED, HOWEVER,
that, in determining whether the holders of the requisite percentage of
Series B Capital Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Person actually
known to a Responsible Officer of the Capital Securities Guarantee Trustee to
be an Affiliate of the Guarantor.
"INDEMNIFIED PERSON" shall mean the Capital Securities Guarantee
Trustee (including in its individual capacity), any Affiliate of the Capital
Securities Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents
of the Capital Securities Guarantee Trustee.
3
"INDENTURE" shall mean the Indenture, dated as of November 15, 1999,
between InterWest Bancorp, Inc., as issuer of Debentures (the "Debenture
Issuer"), and Wilmington Trust Company, as trustee, pursuant to which the
Debentures are to be issued to the Property Trustee of the Issuer.
"MAJORITY IN LIQUIDATION AMOUNT OF THE SERIES B CAPITAL SECURITIES"
shall mean, except as provided by the Trust Indenture Act, a vote by
Holder(s) of the Series B Capital Securities, voting separately as a class,
of more than 50% of the aggregate liquidation amount (including the amount
that would be paid on redemption, liquidation or otherwise, plus accumulated
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Series B Capital Securities, excluding Series
B Capital Securities held by the Guarantor, the Issuer or any Affiliate
thereof.
"OFFICERS' CERTIFICATE" shall mean, with respect to any Person, a
certificate signed by the Chairman, the Chief Executive Officer, the
President, an Executive or Senior Vice President, a Vice President, the Chief
Financial Officer and the Secretary or an Assistant Secretary. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Series B Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenants or conditions 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 to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(c) a statement as to whether or not, in the opinion of each such
officer, such condition or covenant has been complied with.
"OTHER COMMON SECURITIES GUARANTEES" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"OTHER DEBENTURES" shall mean all junior subordinated debentures,
other than the Debentures and the Series A Debentures (as defined in the
Indenture), issued by the Guarantor, from time to time and sold to trusts
other than the Issuer to be established by the Guarantor (if any), in each
case similar to the Issuer.
"OTHER GUARANTEES" shall mean all guarantees, other than this Series
B Capital Securities Guarantee and the Series A Capital Securities Guarantee,
to be issued by the Guarantor with respect to capital securities (if any)
similar to the Series B Capital Securities, issued by trusts other than the
Issuer to be established by the Guarantor (if any), in each case similar to
the Issuer.
"PERSON" shall mean 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.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement, dated as of November 9, 1999, by and among the Guarantor, the
Issuer and the Initial Purchaser named therein, as such agreement may be
amended, modified or supplemented from time to time.
4
"RESPONSIBLE OFFICER" shall mean, with respect to a Person, any
officer with direct responsibility for the administration of any matters
relating to this Series B Capital Securities Guarantee.
"SUCCESSOR CAPITAL SECURITIES GUARANTEE TRUSTEE" shall mean a
successor Capital Securities Guarantee Trustee possessing the qualifications
to act as Capital Securities Guarantee Trustee under Section 4.1.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended.
"TRUST SECURITIES" shall mean the Common Securities and the Series A
Capital Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 1.2 TRUST INDENTURE ACT; APPLICATION
(1) This Series B Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series B Capital Securities Guarantee and shall, to the extent applicable, be
governed by such provisions.
(2) If and to the extent that any provision of this Series B Capital
Securities Guarantee limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control. If any provision of this Series B Capital Securities
Guarantee modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the modified or excluded provision of the
Trust Indenture Act shall be deemed to apply to this Series B Capital
Securities Guarantee as so modified or excluded, as the case may be.
SECTION 1.3 LISTS OF HOLDERS OF SECURITIES
(1) The Guarantor shall provide the Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Series B Capital Securities) with a list, in such form as
the Capital Securities Guarantee Trustee may reasonably require, of the names
and addresses of the Holders of the Series B Capital Securities ("List of
Holders") as of such date, (i) within fourteen (14) days after each record
date for payment of Distributions (as defined in the Declaration), and (ii)
at any other time within 30 days of receipt by the Guarantor of a written
request for a List of Holders as of a date no more than 14 days before such
List of Holders is given to the Capital Securities Guarantee Trustee;
PROVIDED, HOWEVER, that the Guarantor shall not be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Capital Securities Guarantee Trustee by
the Guarantor. The Capital Securities Guarantee Trustee may destroy any List
of Holders previously given to it upon receipt of a new List of Holders.
(2) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 31l(a), 31l(b) and Section 312(b) of the Trust
Indenture Act.
5
SECTION 1.4 REPORTS BY THE CAPITAL SECURITIES GUARANTEE TRUSTEE
Within 60 days after the date hereof, and no later than the
anniversary date hereof in each succeeding year, the Capital Securities
Guarantee Trustee shall provide to the Holders of the Series B Capital
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the
Trust Indenture Act. The Capital Securities Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 1.5 PERIODIC REPORTS
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such documents, reports and information as are required by Section
314 (if any) 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. Delivery of such reports, information
and documents to the Capital Securities Guarantee Trustee is for
informational purposes only and the Capital Securities Guarantee Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Guarantor's compliance with any of its covenants hereunder (as
to which the Capital Securities Guarantee Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 1.6 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with the conditions precedent, if any,
provided for in this Series B Capital Securities 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 1.7 WAIVER OF EVENTS OF DEFAULT
The Holders of a Majority in Liquidation Amount of the Series B
Capital Securities may, by vote, on behalf of the Holders of all of the
Series B Capital Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Series B Capital Securities Guarantee,
but no such waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon.
SECTION 1.8 NOTICE OF EVENTS OF DEFAULT
(1) The Capital Securities Guarantee Trustee shall, within 10
Business Days after the occurrence of an Event of Default with respect to
this Series B Capital Securities Guarantee actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee, transmit by mail, first
class postage prepaid, to all Holders of the Series B Capital Securities,
notices of all such Events of Default, unless such Events of Default have
been cured before the giving of such notice; PROVIDED, HOWEVER, that, except
in the case of an Event of Default arising from the non-payment of any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer
of the Capital Securities Guarantee Trustee in good
6
faith determines that the withholding of such notice is in the interests of
the Holders of the Series B Capital Securities.
(2) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Capital Securities
Guarantee Trustee shall have received written notice, or a Responsible
Officer of the Capital Securities Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge, of
such Event of Default.
SECTION 1.9 CONFLICTING INTERESTS
The Declaration shall be deemed to be specifically described in this
Series B Capital Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 1.10 POWERS AND DUTIES OF THE CAPITAL SECURITIES GUARANTEE
TRUSTEE
(1) This Series B Capital Securities Guarantee shall be held by the
Capital Securities Guarantee Trustee for the benefit of the Holders of the
Series B Capital Securities, and the Capital Securities Guarantee Trustee
shall not transfer this Series B Capital Securities Guarantee to any Person
except a Holder of the Series B Capital Securities exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Capital Securities
Guarantee Trustee on acceptance by such Successor Capital Securities
Guarantee Trustee of its appointment to act as Successor Capital Securities
Guarantee Trustee. The right, title and interest of the Capital Securities
Guarantee Trustee shall automatically vest in any Successor Capital
Securities 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 Securities
Guarantee Trustee.
(2) If an Event of Default actually known to a Responsible Officer
of the Capital Securities Guarantee Trustee has occurred and is continuing,
the Capital Securities Guarantee Trustee shall enforce this Series B Capital
Securities Guarantee for the benefit of the Holders of the Series B Capital
Securities.
(3) The Capital Securities Guarantee Trustee, before the occurrence
of any Event of Default (of which, other than a default in respect of any
Guarantee Payment, a Responsible Officer of the Property Trustee has actual
knowledge) and after the curing of all such Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Series B Capital Securities Guarantee, and no implied covenants
or obligations shall be read into this Series B Capital Securities Guarantee
against the Capital Securities Guarantee Trustee. In case an 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 Securities
Guarantee Trustee, the Capital Securities Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Series B Capital
Securities Guarantee, and use the same degree of care and skill in its
exercise thereof, as a
7
prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(4) No provision of this Series B Capital Securities Guarantee shall
be construed to relieve the Capital Securities Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default (of which,
other than a default in respect of any Guarantee Payment, a Responsible
Officer of the Property Trustee has actual knowledge) and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Securities Guarantee
Trustee shall be determined solely by the express provisions of this
Series B Capital Securities Guarantee, and the Capital Securities
Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Series B Capital Securities Guarantee, and no implied covenants or
obligations shall be read into this Series B Capital Securities
Guarantee against the Capital Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital Securities 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 Securities Guarantee Trustee and
conforming to the requirements of this Series B Capital Securities
Guarantee; PROVIDED, HOWEVER, that in the case of any such certificates
or opinions that by any provision hereof are specifically required to
be furnished to the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee shall be under a duty to examine the same
to determine whether or not on their face they conform to the
requirements of this Series B Capital Securities Guarantee;
(2) the Capital Securities Guarantee Trustee shall not be liable
for any errors of judgment made in good faith by a Responsible Officer
of the Capital Securities Guarantee Trustee, unless it shall be proved
that the Capital Securities Guarantee Trustee or such Responsible
Officer was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(3) the Capital Securities Guarantee Trustee shall not be liable
with respect to any actions taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Series B Capital Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Capital Securities Guarantee Trustee, or exercising
any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Series B Capital Securities Guarantee; and
(4) no provision of this Series B Capital Securities Guarantee
shall require the Capital Securities Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers, if the Capital Securities Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Series B Capital Securities Guarantee or indemnity, reasonably
8
satisfactory to the Capital Securities Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 1.11 CERTAIN RIGHTS OF CAPITAL SECURITIES GUARANTEE TRUSTEE
(1) Subject to the provisions of Section 3.1:
(1) the Capital Securities 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;
(2) any direction or act of the Guarantor contemplated by this
Series B Capital Securities Guarantee may be sufficiently evidenced by
an Officers' Certificate;
(3) whenever, in the administration of this Series B Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities
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;
(4) the Capital Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument or other
document (or any rerecording, refiling or registration thereof);
(5) the Capital Securities 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; and such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees; and the Capital
Securities Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Series B Capital
Securities Guarantee from any court of competent jurisdiction;
(6) the Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series B Capital Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided to the Capital
Securities Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Capital Securities Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Capital Securities 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 Securities Guarantee
Trustee, PROVIDED, HOWEVER, that nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Capital Securities Guarantee
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Series B Capital
Securities Guarantee;
9
(7) the Capital Securities Guarantee Trustee shall have no
obligation 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 Securities Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit;
(8) the Capital Securities Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Capital Securities Guarantee Trustee shall not be responsible
for any misconduct or negligence on the part of any such person
appointed with due care by it hereunder;
(9) any action taken by the Capital Securities Guarantee Trustee
or its agents hereunder shall bind the Holders of the Series B Capital
Securities, and the signature of the Capital Securities Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action; and no third party shall be required to
inquire as to the authority of the Capital Securities Guarantee Trustee
to so act or as to its compliance with any of the terms and provisions
of this Series B Capital Securities Guarantee, both of which shall be
conclusively evidenced by the Capital Securities Guarantee Trustee's or
its agent's taking such action;
(10) whenever in the administration of this Series B Capital
Securities Guarantee the Capital Securities 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
Securities Guarantee Trustee (i) may request instructions from the
Holders of a Majority in Liquidation Amount of the Series B Capital
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; and
(11) the Capital Securities Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Series B Capital Securities Guarantee.
(2) No provision of this Series B Capital Securities Guarantee shall
be deemed to impose any duty or obligation on the Capital Securities
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 Securities 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
Securities Guarantee Trustee shall be construed to be a duty.
SECTION 1.12 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SERIES A
CAPITAL SECURITIES GUARANTEE
The recitals contained in this Series B Capital Securities Guarantee
shall be taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any
10
responsibility for their correctness. The Capital Securities Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Series B Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 1.13 CAPITAL SECURITIES GUARANTEE TRUSTEE; ELIGIBILITY
(1) There shall at all times be a Capital Securities Guarantee
Trustee that shall
(1) not be an Affiliate of the Guarantor; and
(2) be a corporation or other Person 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 other Person permitted by the Securities and Exchange
Commission to act as an indenture 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; it
being understood that if such corporation or other Person 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) and to the
extent permitted by the Trust Indenture Act, 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.
(2) If at any time the Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(3) If the Capital Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and Guarantor shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 1.14 APPOINTMENT, REMOVAL AND RESIGNATION OF CAPITAL
SECURITIES GUARANTEE TRUSTEE
(1) Subject to Section 4.2(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor except during an Event of Default.
(2) The Capital Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Capital Securities Guarantee Trustee
and delivered to the Guarantor.
(3) The Capital Securities Guarantee Trustee shall hold office until
a Successor Capital Securities Guarantee Trustee shall have been appointed,
subject to Section 4.1, or until its removal or
11
resignation. The Capital Securities Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Capital Securities Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Capital
Securities Guarantee Trustee has been appointed, subject to Section 4.1, and
has accepted such appointment by instrument in writing executed by such
Successor Capital Securities Guarantee Trustee and delivered to the Guarantor
and the resigning Capital Securities Guarantee Trustee.
(4) If no Successor Capital Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery of an instrument of removal or resignation, the
Capital Securities Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Capital
Securities Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Capital
Securities Guarantee Trustee.
(5) No Capital Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee
Trustee.
(6) Upon termination of this Series B Capital Securities Guarantee
or removal or resignation of the Capital Securities Guarantee Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Capital
Securities Guarantee Trustee all amounts due to the Capital Securities
Guarantee Trustee accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
SECTION 1.15 GUARANTEE
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 1.16 WAIVER OF NOTICE AND DEMAND
The Guarantor hereby waives notice of acceptance of this Series B
Capital Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding
first against the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 1.17 OBLIGATIONS NOT AFFECTED
The obligations, covenants, agreements and duties of the Guarantor
under this Series B Capital Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(1) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Series B Capital Securities to be
performed or observed by the Issuer;
(2) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Series B Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Series B Capital Securities;
(3) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Series B Capital
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(4) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(5) any invalidity of, or defect or deficiency in, the Series B
Capital Securities;
(6) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred;
(7) the consummation of the Exchange Offer (subject to Section 7.1
hereof); or
(8) 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
with respect to the Guarantee Payments shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain consent of, the Guarantor with respect to the happening of any
of the foregoing.
SECTION 1.18 RIGHTS OF HOLDERS
(1) The Holders of a Majority in Liquidation Amount of the Series B
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Capital Securities
Guarantee Trustee in respect of this Series B Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Series B Capital Securities Guarantee.
(2) If the Capital Securities Guarantee Trustee fails to enforce
this Series B Capital Securities Guarantee, any Holder of the Series B
Capital Securities may institute a legal proceeding directly against the
Guarantor to enforce the Capital Securities Guarantee Trustee's rights under
this Series B Capital Securities Guarantee, without first instituting a legal
proceeding against the Issuer, the Capital Securities Guarantee Trustee or
any other person or entity. The Guarantor waives any right or remedy to
require that any action be brought first against the Issuer or any other
person or entity before proceeding directly against the Guarantor.
13
SECTION 1.19 GUARANTEE OF PAYMENT
This Series B Capital Securities Guarantee creates a
guarantee of payment and not of collection.
SECTION 1.20 SUBROGATION
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Series B Capital Securities against the Issuer in respect of
any amounts paid to such Holders by the Guarantor under this Series B Capital
Securities 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 or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Series B Capital Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Series B Capital
Securities 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 Holders.
SECTION 1.21 INDEPENDENT OBLIGATIONS
The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Issuer with respect to the Series B
Capital Securities, and that the Guarantor shall be liable as principal and
as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Series B Capital Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (h), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 1.22 LIMITATION OF TRANSACTIONS
So long as any Capital Securities remain outstanding, the Guarantor
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Guarantor's capital stock, (ii) make any payment of principal of, or interest
or premium, if any, on or repay, repurchase or redeem any debt securities of
the Guarantor (including Other Debentures) that rank PARI PASSU with or
junior in right of payment to the Debentures or (iii) make any guarantee
payments with respect to any guarantee by the Guarantor of the debt
securities of any subsidiary of the Guarantor (including Other Guarantees) if
such guarantee ranks PARI PASSU with or junior in right of payment to the
Debentures (other than (a) dividends or distributions in shares of, or
options, warrants, rights to subscribe for or purchase shares of, common
stock of the Guarantor, (b) any declaration of a dividend in connection with
the implementation of a shareholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (c) payments under this Series B Capital
Securities Guarantee and the Series A Capital Securities Guarantee, (d) as a
result of a reclassification of the Guarantor's capital stock or the exchange
or the conversion of one class or series of the Guarantor's capital stock for
another class or series of the Guarantor's capital stock, (e) 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, and (f) purchases of common stock
14
related to the issuance of common stock or rights under any of the
Guarantor's benefit or compensation plans for its directors, officers or
employees or any of the Guarantor's dividend reinvestment plans) if at such
time (l) there shall have occurred any event of which the Guarantor has
actual knowledge that (A) is a Default or Event of Default (each as defined
in the Indenture) and (B) in respect of which the Guarantor shall not have
taken reasonable steps to cure, (2) if the Debentures are held by the
Property Trustee, the Guarantor shall be in default with respect to its
payment of any obligations under this Series B Capital Securities Guarantee
or (3) the Guarantor shall have given notice of its election of the exercise
of its right to commence an Extended Interest Payment Period as provided in
the Indenture and shall not have rescinded such notice, and such Extended
Interest Payment Period, or an extension thereof, shall have commenced and be
continuing.
SECTION 1.23 RANKING
This Series B Capital Securities Guarantee will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to Senior Indebtedness (as defined in the
Indenture), to the same extent and in the same manner that the Debentures are
subordinated to Senior Indebtedness pursuant to the Indenture, it being
understood that the terms of Article XV of the Indenture shall apply to the
obligations of the Guarantor under this Series B Capital Securities Guarantee
as if such Article XV were set forth herein in full, (ii) PARI PASSU with the
most senior preferred or preference stock now or hereafter issued by the
Guarantor and with the Series A Capital Securities Guarantee, any Other
Guarantee and, except to the extent set forth therein, the Common Securities
Guarantee, any Other Common Securities Guarantee, and any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 1.24 TERMINATION
This Series B Capital Securities Guarantee shall terminate
and be of no further force and effect upon (i) full payment of the Redemption
Price of all Series B Capital Securities, or (ii) dissolution, winding up or
liquidation of the Issuer, immediately following the full payment of the
amounts payable in accordance with the Declaration, or (iii) the distribution
of all of the Debentures to the Holders of the Trust Securities.
Notwithstanding the foregoing, this Series B Capital Securities Guarantee
will continue to be effective or will be reinstated, as the case may be, if
at any time any Holder of the Series B Capital Securities must restore
payment of any sums paid under the Series B Capital Securities or under this
Series B Capital Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 1.25 EXCULPATION
(1) 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
15
of any act or omission performed or omitted by such Indemnified Person in
good faith in accordance with this Series B Capital Securities 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 Series B
Capital Securities 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.
(2) 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 Series B Capital
Securities might properly be paid.
SECTION 1.26 COMPENSATION AND INDEMNIFICATION
The Guarantor agrees to pay to the Capital Securities
Guarantee Trustee such compensation for its services as shall be mutually
agreed upon by the Guarantor and the Capital Securities Guarantee Trustee.
The Guarantor shall reimburse the Capital Securities Guarantee Trustee upon
request for all reasonable out-of-pocket expenses incurred by it, including
the reasonable compensation and expenses of the Capital Securities Guarantee
Trustee's agents and counsel, except any expense as may be attributable to
the negligence or bad faith of the Capital Securities Guarantee Trustee.
The Guarantor agrees to indemnify each Indemnified Person
for, and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, action, suit, claim or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
provisions of this Section 8.2 shall survive the termination of this Series B
Capital Securities Guarantee and shall survive the resignation or removal of
the Capital Securities Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 1.27 SUCCESSORS AND ASSIGNS
All guarantees and agreements contained in this Series B
Capital Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit
of the Holders of the Series B Capital Securities then outstanding.
SECTION 1.28 AMENDMENTS
Except with respect to any changes that do not materially
adversely affect the rights of Holders of the Series B Capital Securities (in
which case no consent of such Holders will be
16
required), this Series B Capital Securities Guarantee may only be amended
with the prior approval of the Holders of a Majority in Liquidation Amount of
the Series B Capital Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Trust Securities apply
to the giving of such approval. This Series B Capital Securities Guarantee
may not be amended, and no amendment hereof that affects the Capital
Securities Guarantee Trustee's rights, duties or immunities hereunder or
otherwise, shall be effective, unless such amendment is executed by the
Capital Securities Guarantee Trustee (which shall have no obligation to
execute any such amendment, but may do so in its sole discretion).
SECTION 1.29 NOTICES
All notices provided for in this Series B Capital
Securities Guarantee shall be in writing, duly signed by the party giving
such notice, and shall be delivered, telecopied or mailed by first class
mail, as follows:
(1) If given to the Issuer, in care of the Administrative Trustee at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Capital Securities Guarantee Trustee and the
Holders of the Series B Capital Securities):
INTERWEST CAPITAL TRUST I
c/o Interwest Bancorp, Inc.
000 Xxxxxxxxx Xxxxxxx Xxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(2) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Capital Securities Guarantee Trustee may give
notice of to the Holders of the Series B Capital Securities):
WILMINGTON TRUST COMPANY
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(3) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Capital Securities Guarantee Trustee and the Holders of the Series B
Capital Securities):
INTERWEST BANCORP, INC.
000 Xxxxxxxxx Xxxxxxx Xxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
17
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(4) If given to any Holder of the Series B Capital Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 1.30 BENEFIT
This Series B Capital Securities Guarantee is solely for the benefit
of the Holders of the Series B Capital Securities and, subject to Section
3.1(a), is not separately transferable from the Series B Capital Securities.
SECTION 1.31 GOVERNING LAW
THIS SERIES B CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
18
This Series B Capital Securities Guarantee is executed as of the day
and year first above written.
INTERWEST BANCORP, INC.,
as Guarantor
By: ------------------------------------
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Capital Securities Guarantee Trustee
By: ------------------------------------
Name:
Title:
