EXHIBIT 4.21
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GUARANTEE AGREEMENT
between
Boise Cascade Corporation
and
[-------------------------]
Relating to the Preferred Securities of
Boise Cascade Trust [__]
Dated as of [______ __], 199[9]
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CROSS REFERENCE TABLE*
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
310(a)........................................................................4.1(a)
310(b)...................................................................4.1(c), 2.8
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)
313..............................................................................2.3
314(a)...........................................................................2.4
314(b)..................................................................Inapplicable
314(c)...........................................................................2.5
314(d)..................................................................Inapplicable
314(e).................................................................1.1, 2.5, 3.2
314(f)...........................................................................3.2
315(a)........................................................................3.1(d)
315(b)...........................................................................2.7
315(c)...........................................................................3.1
315(d)........................................................................3.1(d)
316(a).................................................................1.1, 2.6, 5.4
316(b)...........................................................................5.3
317(a)..................................................................Inapplicable
317(b)..................................................................Inapplicable
318(a)........................................................................2.1(b)
318(b)...........................................................................2.1
318(c)........................................................................2.1(a)
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* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS........................................................................1
SECTION 1.1. DEFINITIONS........................................................................1
ARTICLE 2 TRUST INDENTURE ACT................................................................5
SECTION 2.0. TRUST INDENTURE ACT; APPLICATION...................................................5
SECTION 2.1. LIST OF HOLDERS....................................................................6
SECTION 2.2. REPORTS BY THE GUARANTEE TRUSTEE...................................................6
SECTION 2.3. PERIODIC REPORTS TO GUARANTEE TRUSTEE..............................................6
SECTION 2.4. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT...................................7
SECTION 2.5. EVENTS OF DEFAULT; WAIVER..........................................................7
SECTION 2.6. EVENT OF DEFAULT; NOTICE...........................................................7
SECTION 2.7. CONFLICTING INTERESTS..............................................................7
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE.................................8
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.........................................8
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE...............................................10
SECTION 3.3. INDEMNITY.........................................................................12
ARTICLE 4 GUARANTEE TRUSTEE.................................................................12
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY....................................................12
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE.....................13
ARTICLE 5 GUARANTEE.........................................................................13
SECTION 5.1. GUARANTEE.........................................................................13
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.......................................................14
SECTION 5.3. OBLIGATIONS NOT AFFECTED..........................................................14
SECTION 5.4. RIGHTS OF HOLDERS.................................................................15
SECTION 5.5. GUARANTEE OF PAYMENT..............................................................15
SECTION 5.6. SUBROGATION.......................................................................16
SECTION 5.7. INDEPENDENT OBLIGATIONS...........................................................16
SECTION 5.8. SUBORDINATION.....................................................................16
ARTICLE 6 COVENANTS.........................................................................16
SECTION 6.1. CERTAIN COVENANTS OF THE GUARANTOR................................................16
ARTICLE 7 TERMINATION.......................................................................18
SECTION 7.1. TERMINATION.......................................................................18
ARTICLE 8 SUBORDINATION OF GUARANTEE........................................................18
SECTION 8.1. GUARANTEE SUBORDINATE TO GUARANTOR SENIOR DEBT....................................18
SECTION 8.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC....................................19
SECTION 8.3. NO PAYMENT WHEN GUARANTOR SENIOR DEBT IN DEFAULT..................................20
SECTION 8.4. GUARANTEE TRUSTEE TO EFFECTUATE SUBORDINATION.....................................20
SECTION 8.5. NO WAIVER OF SUBORDINATION PROVISIONS.............................................21
SECTION 8.6. NOTICE TO GUARANTEE TRUSTEE.......................................................21
SECTION 8.7. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT....................21
SECTION 8.8. GUARANTEE TRUSTEE NOT FIDUCIARY FOR HOLDERS OF GUARANTOR SENIOR DEBT..............21
SECTION 8.9. RIGHTS OF GUARANTEE TRUSTEE AS HOLDER OF GUARANTOR SENIOR DEBT;
PRESERVATION OF GUARANTEE TRUSTEE'S RIGHTS........................................22
SECTION 8.10. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT...................................22
ARTICLE 9 MISCELLANEOUS.....................................................................22
SECTION 9.1. SUCCESSORS AND ASSIGNS............................................................22
SECTION 9.2. AMENDMENTS........................................................................23
SECTION 9.3. NOTICES...........................................................................23
SECTION 9.4. BENEFIT...........................................................................24
SECTION 9.5. INTERPRETATION....................................................................24
SECTION 9.6. GOVERNING LAW.....................................................................25
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of [______ __], 199[9], is
executed and delivered by Boise Cascade Corporation, a Delaware corporation (the
"Guarantor") and [______________________], a national banking association
organized and existing under the laws of the United States, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of Boise Cascade
Trust [__], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as of [______ __], 199[9], among the
Trustees named therein, the Guarantor, as Depositor, and the Holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing _____________ of its % Preferred Securities (liquidation
preference $[__] per preferred security) (the "Preferred Securities")
representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Declaration of Trust;
WHEREAS, the Preferred Securities will be issued by the Issuer
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer's Common Securities (as defined below), will be used to purchase the
Debentures (as defined in the Declaration of Trust) of the Guarantor which will
be deposited with [___________________________], as Property Trustee under the
Declaration of Trust, as trust assets;
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Guarantee Agreement,
the terms set forth below shall, unless the context
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otherwise requires, have the following meanings. Capitalized or otherwise
defined terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Declaration of Trust as in effect on the date
hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct common
control with such specified Person, provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Common Securities" means the securities representing common
beneficial interests in the assets of the Issuer.
"Common Stock" shall mean the common stock, par value $2.50,
per share, of the Guarantor.
"DEBT" means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every purchase money obligation and every
obligation of such Person issued or assumed as the deferred purchase price of
property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business), all conditional sale
obligations of the Guarantor and all obligations of the Guarantor under any
title retention agreements; (v) every obligation of such Person under currency
hedging arrangements, interest rate protection agreements and other similar
arrangements; (vi) every capital lease obligation of such Person, and (vii)
every obligation of the type referred to in clauses (i) through (vi) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has guaranteed or is responsible for or liable, directly or
indirectly, as obligor or otherwise, including, without limitation, obligations
(contingent or otherwise) to purchase or otherwise acquire, or to assure a
creditor against loss in respect of, any such indebtedness or obligation, and
any such indebtedness or obligation secured by a
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lien on any asset of the Guarantor, whether or not such indebtedness or
obligation is assumed by the Guarantor.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement; provided,
however, that, except with respect to a default in payment of any Guarantee
Payments, no Event of Default shall be deemed to have occurred under this
Guarantee Agreement unless and until the Guarantor shall have received written
notice of default and shall not have cured such default within 60 days after
receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Declaration of Trust) required to be
paid on the Preferred Securities, to the extent the Issuer shall have funds on
hand available therefor at such time, (ii) the redemption price set forth in the
Declaration of Trust, including premium, if any, all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer to the extent
the Issuer shall have funds on hand available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the liquidation preference of $[__] per Preferred Security plus
accrued and unpaid Distributions on the Preferred Securities to the date of
payment to the extent the Issuer shall have funds on hand available to make such
payment and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means [__________________________], until
a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Guarantee Trustee.
"Guarantor Senior Debt" means the principal (including without
limitation all unpaid drawings with respect to letters of credit) of and
premium, if any, and interest (including interest accruing on or after the
filing of any petition in bankruptcy relating to the Guarantor whether or not
such claim for post-petition interest is allowed in such proceeding) on, and all
other amounts owing with respect to, the following, whether outstanding on the
date of execution of this Indenture or thereafter incurred, created or assumed:
(i) all Debt of the Guarantor (other than the Debentures), and (ii) renewals,
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extensions or refundings of any of the obligations referred to in the preceding
clause (i) and in this clause (ii) unless, in the case of any particular
indebtedness, renewal, extension or refunding, under the express provisions of
the instrument creating or evidencing the same or the assumption or guarantee of
the same, or pursuant to which the same is outstanding, such indebtedness or
such renewal, extension or refunding thereof is not superior in right of payment
to the Debentures[; provided that any guarantee by the Guarantor outstanding on
the date of the execution of the Indenture or thereafter created in respect of
the Common Securities or any preferred or preference stock of any affiliate of
the Guarantor shall not rank superior in right of payment to the Debentures].
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Indenture dated as of [______ __],
199[9], between the Guarantor and [_______________________], as trustee, as the
same may be supplemented and amended from time to time.
"List of Holders" has the meaning specified in
Section 2.2 (a).
"Majority in Liquidation Preference of the Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all the
outstanding Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by (i) the Chairman, Chief Executive Officer, President or a
Vice President, and by (ii) the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary of such Person, and
delivered to the Guarantee Trustee. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
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(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each 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
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any Executive Vice President, Senior Vice President, any First Vice
President, any Vice President, any Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer
or Assistant Trust Officer or any other officer of the Corporate Trust Services
Division of the 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 Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.0. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such
provisions.
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(b) If and to the extent that any provision of this Guarantee
Agreement 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 2.1. LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (unless the Guarantee Trustee is acting as
Securities Registrar with respect to the Debentures under the
Indenture) (i) semi-annually, on or before __________ and _______ of
each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders")
as of a date not more than 15 days prior to the delivery thereof, and
(ii) at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to
the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise
been received by the Guarantee Trustee. Notwithstanding the foregoing,
the Guarantor shall not be obligated to provide such List of Holders at
any time the Preferred Securities are represented by one or more Global
Certificates (as defined in the Indenture). The Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.2. REPORTS BY THE GUARANTEE TRUSTEE. On or before
_______, of each calendar year, the Guarantee Trustee shall provide to the
Holders 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 Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.3. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
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SECTION 2.4. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
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 2.5. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Preference of the Securities may, by vote, on behalf of
the Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 2.6. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default known
to the Guarantee Trustee, unless such defaults have been cured before
the giving of such notice, provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee shall
have received written notice, or a Responsible Officer charged with the
administration of the Declaration of Trust shall have obtained written
notice, of such Event of Default.
SECTION 2.7. CONFLICTING INTERESTS. The Declaration of Trust
and the Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
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ARTICLE 3
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall
not transfer this Guarantee Agreement to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to the Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
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 the Responsible Officer of the Guarantee Trustee, the Guarantee
Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, 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 Guarantee Agreement shall be
construed to relieve the 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 Event of Default
and after the curing or waiving of all such Events of Default that may
have occurred;
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(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement;
and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the 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 Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine whether
or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be proved
that the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
not less than a Majority in Liquidation Preference of the
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the 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 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
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Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, proxy, 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 Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless otherwise
prescribed herein.
(iii) Whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the advice or opinion of such legal counsel with
respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Guarantee Agreement at the request or direction of
any Holder, unless such Holder shall have provided to the
Guarantee Trustee such adequate
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security and indemnity as would satisfy a reasonable person in
the position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement and use the
same degree of care and skill in the exercise thereof as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(vi) The Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys or
any Affiliate, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it
hereunder.
(viii) Whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the
Holders of a Majority in Liquidation Preference of the
Securities, (B) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance
with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any
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jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
SECTION 3.3. INDEMNITY. The Guarantor agrees to indemnify the
Guarantee Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Guarantee Trustee
will not claim or exact any lien or charge on any Guarantee Payment as a result
of any amount due to it under this Guarantee Agreement.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then,
for the purposes of this Section 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.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
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(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act. The Declaration of Trust and the Indenture shall not be
deemed to constitute conflicting interests of the Guarantee Trustee.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b) the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been appointed or
until its removal or resignation. The Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Guarantee Trustee and delivered
to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE 5
GUARANTEE
SECTION 5.1. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees, subject to Section 5.8 and Article 8, to pay in full to
the Holders the Guarantee Payments (without
13
duplication of amounts theretofore paid by or on behalf of the Issuer), as and
when due, regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert other than the defense of payment. 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 5.2. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby
waives notice of acceptance of the Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Guarantee Trustee, Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee Agreement
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Debentures as so provided in the
Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of
14
creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer or any of
the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders or the Guarantee
Trustee to give notice to, or obtain the consent of, the Guarantor with respect
to the happening of any of the foregoing.
SECTION 5.4. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Preference of the
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or to direct the exercise of any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; (iv) any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person; and
(v) if an Event of Default with respect to the Debentures constituting the
failure to pay interest or principal on the Debentures on the date such interest
or principal is otherwise payable has occurred and is continuing, then any
Holder shall have the right, which is absolute and unconditional, to proceed
directly against the Guarantor to obtain Guarantee Payments without first
waiting to determine if the Guarantee Trustee has enforced this Guarantee
Agreement or instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts
15
theretofore paid by the Issuer) or upon distribution of Debentures to Holders as
provided in the Declaration of Trust.
SECTION 5.6. SUBROGATION. The Guarantor shall be subrogated to
all (if any) rights of the Holders against the Issuer in respect of any amounts
paid to the Holders by the Guarantor under this Guarantee Agreement and shall
have the right to waive payment by the Issuer pursuant to Section 5.1; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities and that the Guarantor
shall be liable as principal and debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.3 hereof.
SECTION 5.8. SUBORDINATION. The Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and subject in right of payment to the prior payment in full in cash of all
Guarantor Senior Debt and PARI PASSU with the most senior preferred stock, if
any, now or hereafter issued by the Guarantor, with any guarantee now or
hereafter entered into by the Guarantor in respect of the Common Securities or
of any preferred or preference stock of any affiliate of the Guarantor.
ARTICLE 6
COVENANTS
SECTION 6.1. CERTAIN COVENANTS OF THE GUARANTOR.
(a) Guarantor covenants and agrees that if and so long as (i)
the Issuer is the holder of all the Debentures, (ii) a Tax Event (as
defined in the Declaration of Trust) in respect of the Issuer has
occurred and is continuing and (iii) the Guarantor has elected, and has
not revoked such election, to pay Additional Sums (as defined in the
Declaration of Trust) in respect of the Preferred Securities
16
and Common Securities, the Guarantor will pay to the Issuer such
Additional Sums.
(b) The Guarantor covenants and agrees that it will not, and
will not permit any subsidiary of the Guarantor to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or
make a liquidation payment with respect to, any shares of the
Guarantor's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any
debt securities (including guarantees of indebtedness for money
borrowed) of the Guarantor that rank PARI PASSU with or junior to the
Debentures (other than (a) any dividend, redemption, liquidation,
interest, principal or guarantee payment by Guarantor where the payment
is made by way of securities (including capital stock) that rank PARI
PASSU with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made, (b)
redemptions or purchases of any rights pursuant to the Shareholders
Rights Plan (as defined in the Indenture), or any successor to such
Shareholders Rights Plan, and the declaration of a dividend of such
rights or the issuance of preferred stock under such plans in the
future, (c) payments under this Agreement, (d) purchases of Common
Stock related to the issuance of Common Stock under any of the
Guarantor's benefit plans for its directors, officers or employees, (e)
as a result of a reclassification of the Guarantor's capital stock or
the exchange or conversion of one series or class of the Guarantor's
capital stock for another series or class of the Guarantor's capital
stock and (f) 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) if at such time (x) there shall have occurred any event of
which the Guarantor has actual knowledge that (A) with the giving of
notice or the lapse of time, or both, would constitute an "Event of
Default" under the Indenture with respect to the Debentures and (B) in
respect of which the Guarantor shall not have taken reasonable steps to
cure, (y) the Guarantor shall be in default with respect to its payment
of any obligations under the Guarantee or (z) the Guarantor shall have
given notice of its selection of an Extension Period (as defined in the
Indenture) with respect to the Debentures and shall not have rescinded
such notice, or such Extension Period, or any extension thereof, shall
be continuing.
(c) The Guarantor covenants and agrees (i) to maintain
directly or indirectly 100% ownership of the Common Securities,
provided that certain successors which are
17
permitted by the Indenture may succeed to the Guarantor's ownership of
the Common Securities, (ii) not to voluntarily terminate, wind-up or
liquidate the Issuer, except (a) in connection with a distribution of
the Debentures to the holders of the Preferred Securities in
liquidation of the Issuer or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration of Trust,
(iii) to use its reasonable efforts, consistent with the terms and
provisions of the Declaration of Trust, to cause the Issuer to remain
classified as a grantor trust for United States Federal income tax
purposes, (iv) for so long as Preferred Securities are outstanding, not
to convert Debentures except pursuant to a notice of conversion
delivered to the Conversion Agent (as defined in the Declaration of
Trust) by a Holder, [(v) to maintain the reservation for issuance of
the number of shares of Common Stock that would be required from time
to time upon the conversion of all the Debentures then outstanding,
(vi) to deliver shares of Common Stock upon an election by the Holders
to convert such Preferred Securities into Common Stock] and (vii) to
honor all obligations relating to the conversion or exchange of the
Preferred Securities into or for [Common Stock or] Debentures.
ARTICLE 7
TERMINATION
SECTION 7.1. TERMINATION. This Guarantee Agreement shall
terminate and be of no further force and effect upon the earliest of (i) full
payment of the Redemption Price of all Preferred Securities, (ii) the
distribution of Debentures to the Holders in exchange for all of the Preferred
Securities, (iii) full payment of the amounts payable in accordance with the
Declaration of Trust upon liquidation of the Issuer [or (iv) the distribution,
if any, of Common Stock to the holders of the Preferred Securities in respect of
the conversion of all such holders' Preferred Securities into Common Stock].
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to Preferred Securities or
this Guarantee Agreement.
ARTICLE 8
SUBORDINATION OF GUARANTEE
SECTION 8.1. GUARANTEE SUBORDINATE TO GUARANTOR SENIOR DEBT.
The Guarantor covenants and agrees, and each Holder, by its acceptance thereof,
likewise covenants and agrees, that the payment of the Guarantee Payments
pursuant to this Guarantee
18
Agreement are hereby expressly made subordinate and subject in right of payment
to the prior payment in full in cash of all amounts then due and payable in
respect of all Guarantor Senior Debt (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Guarantor Senior Debt and that no payment
of the Guarantee Payments pursuant to this Guarantee Agreement may be made
unless full payment of all amounts then due for principal, premium, if any, and
interest then due on all Guarantor Senior Debt by reason of the maturity thereof
(by lapse of time, acceleration or otherwise) has been made or duly provided for
in cash or in a manner satisfactory to the holders of such Guarantor Senior
Debt.
SECTION 8.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of the Guarantor's assets in connection with any
dissolution, winding-up, liquidation or reorganization of the Guarantor, whether
voluntary or involuntary, in bankruptcy, insolvency or receivership proceedings
(each such event, if any, herein sometimes referred to as a "Proceeding"), or
upon an assignment for the benefit of creditors or otherwise: (i) all Guarantor
Senior Debt (including without limitation all interest accruing on or after the
filing of any petition in bankruptcy relating to the Guarantor at the relevant
contractual rate, whether or not such claim for post-petition interest is
allowed in such Proceeding) must be paid in full in cash before the Holders are
entitled to any payments or distributions of any kind or character on account of
any Guarantee Payments pursuant to this Guarantee Agreement, and (ii) any
payment or distribution of the Guarantor's assets of any kind or character,
whether in cash, securities or other property, which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Guarantee Payments shall be paid or delivered directly to the holders of such
Guarantor Senior Debt (or their representative or trustee) in accordance with
the priorities then existing among such holders until all Guarantor Senior Debt
shall have been paid in full in cash before any payment or distribution is made
to the Holders.
In the event that, notwithstanding the subordination
provisions set forth herein, any payment or distribution of assets of any kind
or character is made at a time when the respective payment is not permitted to
be made as a result of the subordination provisions described above and before
all Guarantor Senior Debt is paid in full in cash, the Guarantee Trustee or the
Holders receiving such payment will be required to pay over such payment or
distribution to the holders of such Guarantor Senior Debt.
19
The consolidation of the Guarantor with, or the merger of the
Guarantor into, another Person or the liquidation or dissolution of the
Guarantor following the sale of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set forth
in Article 8 of the Indenture shall not be deemed a Proceeding for the purposes
of this Section if the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by sale such properties and
assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, or sale comply with the conditions set forth in Article
8.
SECTION 8.3. NO PAYMENT WHEN GUARANTOR SENIOR DEBT IN DEFAULT.
In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on, or any other amounts owing
with respect to, any Guarantor Senior Debt when the same becomes due and payable
or in the event any judicial proceeding shall be pending with respect to any
such default, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment or distribution of any kind or
character, whether in cash or properties shall be made by the Guarantor on
account of any Guarantee Payment.
The Guarantor shall give prompt written notice to the
Guarantee Trustee of any default in payment of principal of or interest on any
Guarantor Senior Debt; provided that no failure to give such a notice shall have
any effect whatsoever on the subordination provisions described herein.
In the event that, notwithstanding the foregoing, the
Guarantor shall make any payment to the Guarantee Trustee or any Holder
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known as set forth in
Section 8.6, to the Guarantee Trustee or, as the case may be, such Holder, then
and in such event such payment shall be paid over and delivered forthwith to the
Guarantor.
The provisions of this Section shall not apply to any payment
with respect to which Section 8.2 would be applicable.
SECTION 8.4. GUARANTEE TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder by his or her acceptance thereof authorizes and directs the
Guarantee Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Guarantee Trustee as his or her attorney-in-fact for
any and all such purposes.
20
SECTION 8.5. NO WAIVER OF SUBORDINATION PROVISIONS. No right
of any present or future holder of any Guarantor Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Guarantor or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Guarantor with the terms, provisions and covenants of this Guarantee
Agreement, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
SECTION 8.6. NOTICE TO GUARANTEE TRUSTEE. The Guarantor shall
give written notice as soon as commercially practicable to the Guarantee Trustee
of any fact actually known to the Guarantor which would prohibit the making of
any payment to or by the Guarantee Trustee in respect of the Guarantee Payment.
Notwithstanding the provisions of this Article or any other provision of this
Guarantee Agreement, the Guarantee Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Guarantee Trustee in respect of the Guarantee Payment, unless and
until the Guarantee Trustee shall have received written notice thereof from the
Guarantor or a person representing itself as a holder of Guarantor Senior Debt
or from any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true).
SECTION 8.7. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Guarantor
referred to in this Article, the Guarantee Trustee, subject to the provisions of
Article 3, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a Proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Guarantee Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Guarantor Senior Debt and other
indebtedness of the Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
SECTION 8.8. GUARANTEE TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
GUARANTOR SENIOR DEBT. With respect to the holders of the Guarantor Senior Debt,
the Guarantee Trustee undertakes to perform or observe only such of its
obligations and covenants as are set forth in this Article 8, and no implied
covenants or obligations with respect to the holders of such Guarantor Senior
Debt shall be read into this Guarantee Agreement against
21
[______________________________] and/or the Guarantee Trustee.
[______________________________] and/or the Guarantee Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Guarantor Senior Debt
and, subject to the provisions of Section 3.2, neither the Guarantee Trustee nor
[_____________________________] shall be liable to the holder of any Guarantor
Senior Debt if it shall pay over or deliver to Holders, the Guarantor, or any
other person, money or assets to which any holder of such Guarantor Senior Debt
shall be entitled by virtue of this Article 8 or otherwise.
SECTION 8.9. RIGHTS OF GUARANTEE TRUSTEE AS HOLDER OF
GUARANTOR SENIOR DEBT; PRESERVATION OF GUARANTEE TRUSTEE'S RIGHTS. The Guarantee
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article with respect to any Guarantor Senior Debt which may at any time
be held by it, to the same extent as any other holder of Guarantor Senior Debt,
and, subject to the requirements of the Trust Indenture Act, nothing in this
Guaranty Agreement shall deprive the Guarantee Trustee of any of its rights as
such holder.
SECTION 8.10. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purpose of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Debentures shall not be deemed to
constitute a payment or distribution on account of the principal of (or premium,
if any) or interest (including any Additional Interest) on the Debentures or on
account of the purchase or other acquisition of Debentures, and (b) the payment,
issuance or delivery of cash (including any payments for fractional shares),
property or securities (other than junior securities) upon conversion or
exchange of a Debenture shall be deemed to constitute payment on account of the
principal of such security. For the purpose of this Section, the term "junior
securities" means (i) shares of any stock of any class of the Guarantor and (ii)
securities of the Guarantor which are subordinated in right of payment to all
Guarantor Senior Debt which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater
extent than, the Debentures which are so subordinated as provided in this
Article.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor that
22
is permitted under Article 8 of the Indenture and pursuant to which the assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder.
SECTION 9.2. AMENDMENTS. Except with respect to any changes
which do not adversely affect the rights of the Holders in any material respect
(in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not less
than 66 2/3% in Liquidation Preference of the Securities. The provisions of
Article 6 of the Declaration of Trust concerning meetings of the Holders shall
apply to the giving of such approval. The Guarantor shall furnish the Guarantee
Trustee with an Officers' Certificate and an Opinion of Counsel to the effect
that any amendment of this Agreement is authorized and permitted.
SECTION 9.3. NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied or mailed
by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders:
Boise Cascade Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx
X.X. Xxx 00
Xxxxx, Xxxxx 00000-0000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: General Counsel
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer
may give notice of to the Holders:
Boise Cascade Trust [__]
c/o Boise Cascade Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx
X.X. Xxx 00
Xxxxx, Xxxxx 00000-0000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: General Counsel
23
with a copy to:
[------------------------------]
[-----------------------]
[-----------------------]
Phone No.: [______________]
Facsimile No.: [_____________]
Attention: Corporate Trust Services
(c) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4. BENEFIT. This Guarantee Agreement is solely for
the benefit of the Holders and is not separately transferable from the Preferred
Securities.
SECTION 9.5. INTERPRETATION. In this Guarantee Agreement,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
24
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 9.6. GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
25
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
BOISE CASCADE CORPORATION
By:
------------------------------
Name:
Title:
[---------------------------------]
as Guarantee Trustee
By: -------------------------------
Name:
Title:
