EXHIBIT 4.7
Capital Securities Guarantee Agreement
Between
Ocwen Financial Corporation
(as Guarantor)
and
Norwest Bank Minnesota, National Association
(as Trustee)
dated as of
_____________, 199_
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.....................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application................................5
SECTION 2.02. Lists of Holders................................................5
SECTION 2.03. Reports by the Capital Securities Guarantee Agreement
Trustee.....................................................5
SECTION 2.04. Periodic Reports to Capital Securities Guarantee Agreement
Trustee.....................................................6
SECTION 2.05. Evidence of Compliance with Conditions Precedent................6
SECTION 2.06. Guarantee Events of Default; Waiver.............................6
SECTION 2.07. Guarantee Event of Default; Notice..............................6
SECTION 2.08. Conflicting Interests...........................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 3.01. Powers and Duties of the Capital Securities Guarantee
Agreement Trustee...........................................7
SECTION 3.02. Certain Rights of Capital Securities Guarantee Agreement
Trustee.....................................................9
SECTION 3.03. Not Responsible for Recitals or Issuance of Capital
Securities Guarantee Agreement.............................11
ARTICLE IV
CAPITAL SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 4.01. Capital Securities Guarantee Agreement Trustee; Eligibility....12
SECTION 4.02. Appointment, Removal and Resignation of Capital Securities
Guarantee Agreement Trustees...............................12
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee......................................................13
SECTION 5.02. Waiver of Notice and Demand....................................13
SECTION 5.03. Obligations Not Affected.......................................13
SECTION 5.04. Rights of Holders..............................................14
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SECTION 5.05. Guarantee of Payment...........................................15
SECTION 5.06. Subrogation....................................................15
SECTION 5.07. Independent Obligations........................................15
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01. Limitation of Transactions.....................................16
SECTION 6.02. Subordination..................................................16
ARTICLE VII
TERMINATION
SECTION 7.01. Termination....................................................17
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 8.01. Compensation and Expenses of Capital Securities Guarantee
Agreement Trustee..........................................17
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Exculpation....................................................18
SECTION 9.02. Indemnification................................................18
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Successors and Assigns........................................19
SECTION 10.02. Amendments....................................................19
SECTION 10.03. Notices.......................................................19
SECTION 10.04. Benefit.......................................................20
SECTION 10.05. Interpretation................................................20
SECTION 10.06. GOVERNING LAW.................................................21
SECTION 10.07. Counterparts..................................................21
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CAPITAL SECURITIES GUARANTEE AGREEMENT
This Capital Securities Guarantee Agreement, dated as of ___________,
199_, is executed and delivered by Ocwen Financial Corporation, a Florida
corporation (the "Guarantor"), and Norwest Bank Minnesota, National Association,
a national banking corporation, as trustee, for the benefit of the Holders (as
defined herein) from time to time of the Capital Securities (as defined herein)
of Ocwen Capital Trust II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ___________, 199_ 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 is
issuing up to $_________ aggregate liquidation amount of its ____% Capital
Securities, (liquidation amount $____ per Capital Security) (the "Capital
Securities") and up to $_________ aggregate liquidation amount of its ___%
Common Securities (the "Common Securities" and together with the Capital
Securities, the "Trust Securities"), each representing ownership interests in
the assets of the Issuer and having the terms set forth in the Declaration;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined herein) of
the Guarantor which will be deposited with Norwest Bank Minnesota, National
Association, as Property Trustee under the Declaration, as trust assets;
WHEREAS, as an incentive for the Holders to purchase Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, the Guarantor is executing and delivering a Guarantee
Agreement (the "Common Trust Securities Guarantee") with substantially identical
terms to this Capital Securities Guarantee Agreement, for the benefit of the
holders of the Common Securities, except that if a Guarantee Event of Default
(as defined herein) has occurred and is continuing, the rights of the holders of
the Common Securities to receive the Guarantee Payments under the Common Trust
Securities Guarantee are subordinated, to the extent and in the manner set forth
in the Common Trust Securities Guarantee, to the rights of Holders to receive
Guarantee Payments under this Capital Securities Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Capital Securities Guarantee
Agreement for the benefit of the Holders from time to time of the Capital
Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Capital Securities Guarantee
Agreement, the terms set forth below shall, unless the context 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 as in effect on the date hereof unless otherwise
indicated.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect 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.
"Capital Securities" has the meaning specified in the recitals to this
Capital Securities Guarantee Agreement.
"Capital Securities Guarantee Agreement" means this Capital Securities
Guarantee Agreement, dated as of __________, 199_, between Ocwen Financial
Corporation and the Capital Securities Guarantee Agreement Trustee.
"Capital Securities Guarantee Agreement Trustee" means Norwest Bank
Minnesota, National Association, until a Successor Capital Securities Guarantee
Agreement Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Capital Securities Guarantee Agreement and thereafter means
each such Successor Capital Securities Guarantee Agreement Trustee.
"Common Securities" has the meaning specified in the recitals to this
Capital Securities Guarantee Agreement.
"Debentures" means the series of subordinated debt securities of the
Guarantor designated the [title of Debentures] held by the Property Trustee (as
defined in the Declaration) of the Issuer).
"Declaration" has the meaning set forth in the preamble to this Capital
Securities Guarantee Agreement.
"Distribution" shall have the same meaning as indicated in the
Declaration.
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"Final Redemption Price" means the final redemption price of the
Capital Securities, including all accumulated and unpaid Distributions to the
date of redemption.
"Guarantee Event of Default" has the meaning specified in Section 2.06.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the 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) required to be paid on
the Capital Securities, to the extent the Issuer shall have funds on hand
legally available therefor at such time, and (ii) the Final Redemption Price
with respect to the Capital Securities outstanding on the Maturity Date of the
Debentures (as defined in the Indenture) to the extent the Issuer shall have
funds on hand legally available therefor at such time. If a Guarantee Event of
Default has occurred and is continuing, no Guarantee Payments under the Common
Trust Securities Guarantee with respect to the Common Trust Securities or any
guarantee payment under any Other Common Trust Securities Guarantees shall be
made until the Holders shall be paid in full the Guarantee Payments to which
they are entitled under this Capital Securities Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Capital Securities that is deemed, under the Declaration,
to be a holder of any Capital Securities; provided, however, that in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Capital Securities Guarantee Agreement Trustee or any Affiliate
of the Guarantor or the Capital Securities Guarantee Agreement Trustee.
"Indemnified Person" means the Capital Securities Guarantee Agreement
Trustee, any Affiliate of the Capital Securities Guarantee Agreement Trustee, or
any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Capital Securities
Guarantee Agreement Trustee.
"Indenture" means the Subordinated Indenture dated as of __________ __,
199__, among the Guarantor and Norwest Bank Minnesota, National Association, as
trustee, as the same may be amended or supplemented from time to time in
accordance with the terms hereof, pursuant to which the Debentures are to be
issued to the Property Trustee.
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, Capital Securities representing
more than 50% of the liquidation amount of all then outstanding Capital
Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two of the following: the Chairman of the Board, Vice
Chairman of the Board, the President, a Managing Director, a Senior Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person. Any Officers' Certificate delivered with respect to
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compliance with a condition or covenant provided for in this Capital Securities
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;
(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.
"Other Common Trust Securities Guarantees" shall have the same meaning
as "Other Guarantees" in the Common Trust Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued by
the Guarantor from time to time and sold to trusts established or to be
established by the Guarantor, in each case similar to the issuer.
"Other Guarantees" means all guarantees issued by the Guarantor with
respect to securities similar to the Capital Securities issued by other trusts
to be established by the Guarantor, in each case similar to the Issuer.
"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 Capital Securities
Guarantee Agreement Trustee, any Vice President, any Assistant Vice President,
the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer,
any financial services officer or any other officer of the Corporate Trust
Department of the Capital Securities Guarantee Agreement 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.
"Senior Indebtedness" shall have the same meaning as indicated in the
Indenture.
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"Successor Capital Securities Guarantee Agreement Trustee" means a
successor Capital Securities Guarantee Agreement Trustee possessing the
qualifications to act as Capital Securities Guarantee Agreement Trustee under
Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" has the meaning specified in the recitals to this
Capital Securities Guarantee Agreement.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Capital Securities Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Capital Securities Guarantee Agreement and shall, to the extent applicable,
be governed by such provisions.
(b) If and to the extent that any provision of this Capital Securities
Guarantee Agreement limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act, through
operation of Section 318(c) thereof, such imposed duties shall control. If
any provision of this Capital Securities Guarantee Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified
or excluded, the latter provision shall be deemed to apply to this Capital
Securities Guarantee Agreement as so modified or excluded, as the case may
be.
SECTION 2.02. Lists of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Capital
Securities Guarantee Agreement Trustee (a) on a quarterly basis on each
regular record date for the Debentures, a list, in such form as the Capital
Securities Guarantee Agreement Trustee may reasonably require, of the names
and addresses of the Holders of the Capital Securities ("List of Holders")
as of a date not more than 15 days prior to the delivery thereof, and (b) at
such other times as the Capital Securities Guarantee Agreement 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 has not otherwise been
received by the Capital Securities Guarantee Agreement Trustee in its
capacity as such; 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 Agreement
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Trustee by the Guarantor. The Capital Securities Guarantee Agreement Trustee
may destroy any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Capital Securities Guarantee Agreement Trustee shall comply
with its obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.03. Reports by the Capital Securities Guarantee Agreement
Trustee. Not later than ________ __ of each year, commencing ___________, 199_,
the Capital Securities Guarantee Agreement 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(a) of the Trust Indenture
Act. The Capital Securities Guarantee Agreement Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Capital Securities Guarantee
Agreement Trustee. The Guarantor shall provide to the Capital Securities
Guarantee Agreement Trustee, the Securities and Exchange Commission and the
Holders such documents, reports and information as 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; provided, however, that such compliance
certificate shall be delivered on or before 120 days after the end of each
fiscal year of the Guarantor. Delivery of such reports, information and
documents to the Capital Securities Guarantee Agreement Trustee is for
informational purposes only and the Capital Securities Guarantee Agreement
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 Agreement Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Capital Securities Guarantee Agreement Trustee
such evidence of compliance with conditions precedent, if any, provided for in
this Capital Securities 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 2.06. Guarantee Events of Default; Waiver. (a) An event of
default under this Capital Securities Guarantee Agreement will occur upon the
failure of the Guarantor to perform any of its payment or other obligations
hereunder (a "Guarantee Event of Default"); provided, however, that, other than
with respect to a default on any payment under this Capital Securities Guarantee
Agreement, the Guarantor shall have received notice of default and shall not
have cured such default within 90 days after receipt of such notice.
(b) The Holders of a Majority in liquidation amount of the Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Guarantee Event
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of Default and its consequences. Upon such waiver, any such Guarantee Event of
Default shall cease to exist, and any Guarantee Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Capital
Securities Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any right
consequent thereon.
SECTION 2.07. Guarantee Event of Default; Notice.
(a) The Capital Securities Guarantee Agreement Trustee shall, within 90
days after the occurrence of a Guarantee Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Capital Securities,
notices of all Guarantee Events of Default known to the Capital Securities
Guarantee Agreement Trustee, unless such Guarantee Event of Default has 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 Capital Securities
Guarantee Agreement 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 Capital Securities
Guarantee Agreement Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Capital Securities.
(b) The Capital Securities Guarantee Agreement Trustee shall not be
deemed to have knowledge of any Guarantee Event of Default unless the
Capital Securities Guarantee Agreement Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Capital Securities Guarantee Agreement shall have obtained actual knowledge,
of such Guarantee Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration and the Indenture
shall be deemed to be specifically described in this Capital Securities
Guarantee Agreement 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 AGREEMENT TRUSTEE
SECTION 3.01. Powers and Duties of the Capital Securities Guarantee
Agreement Trustee.
(a) This Capital Securities Guarantee Agreement shall be held by the
Capital Securities Guarantee Agreement Trustee for the benefit of the
Holders of the Capital Securities, and the Capital Securities Guarantee
Agreement Trustee shall not transfer this Capital Securities Guarantee
Agreement to any Person except a Holder of Capital
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Securities exercising his or her rights pursuant to Section 5.04(iv) or to a
Successor Capital Securities Guarantee Agreement Trustee on acceptance by
such Successor Capital Securities Guarantee Agreement Trustee of its
appointment to act as Successor Capital Securities Guarantee Agreement
Trustee. The right, title and interest of the Capital Securities Guarantee
Agreement Trustee shall automatically vest in any Successor Capital
Securities Guarantee Agreement Trustee, upon acceptance by such Successor
Capital Securities Guarantee Agreement 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 Capital Securities Guarantee Agreement
Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer has occurred and is continuing, the Capital Securities Guarantee
Agreement Trustee shall enforce this Capital Securities Guarantee Agreement
for the benefit of the Holders of the Capital Securities.
(c) The Capital Securities Guarantee Agreement Trustee, before the
occurrence of any Guarantee Event of Default and after the curing of all
Guarantee Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Capital
Securities Guarantee Agreement, and no implied covenants shall be read into
this Capital Securities Guarantee Agreement against the Capital Securities
Guarantee Agreement Trustee. In case a Guarantee Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), and
is actually known to a Responsible Officer, the Capital Securities Guarantee
Agreement Trustee shall exercise such of the rights and powers vested in it
by this Capital Securities Guarantee Agreement, and use the same degree of
care and skill in its exercise thereof, as a prudent individual would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Capital Securities Guarantee Agreement shall
be construed to relieve the Capital Securities Guarantee Agreement 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 Guarantee Event of Default and
after the curing or waiving of all such Guarantee Events of Default
that may have occurred:
(A) the duties and obligations of the Capital Securities
Guarantee Agreement Trustee shall be determined solely by the
express provisions of this Capital Securities Guarantee Agreement,
(including pursuant to Section 2.01) and the Capital Securities
Guarantee Agreement Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Capital Securities Guarantee Agreement and no
implied covenants or obligations shall be read into this
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Capital Securities Guarantee Agreement against the Capital
Securities Guarantee Agreement Trustee; and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Agreement Trustee, the Capital Securities
Guarantee Agreement 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 Agreement Trustee and conforming to
the requirements of this Capital Securities 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 Capital Securities Guarantee
Agreement Trustee, the Capital Securities Guarantee Agreement
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Capital
Securities Guarantee Agreement;
(ii) the Capital Securities Guarantee Agreement Trustee shall not
be liable for any error of judgment made in good faith by a Responsible
Officer of the Capital Securities Guarantee Agreement Trustee, unless
it shall be proved that the Capital Securities Guarantee Agreement
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Capital Securities Guarantee Agreement Trustee shall not
be liable with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders of not
less than a Majority in liquidation amount of the Capital Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Capital Securities Guarantee Agreement
Trustee, or exercising any trust or power conferred upon the Capital
Securities Guarantee Agreement Trustee under this Capital Securities
Guarantee Agreement; and
(iv) no provision of this Capital Securities Guarantee Agreement
shall require the Capital Securities Guarantee Agreement 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
Agreement 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 Capital Securities Guarantee Agreement or
adequate indemnity against such risk or liability is not reasonably
assured to it.
SECTION 3.02. Certain Rights of Capital Securities Guarantee Agreement
Trustee.
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(a) Subject to the provisions of Section 3.01:
(i) The Capital Securities Guarantee Agreement 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 reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Capital Securities Guarantee Agreement shall be sufficiently evidenced
by an Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Capital Securities
Guarantee Agreement, the Capital Securities Guarantee Agreement Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Capital
Securities Guarantee Agreement 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 Capital Securities Guarantee Agreement Trustee,
shall be promptly delivered by the Guarantor.
(iv) The Capital Securities Guarantee Agreement Trustee may (at
the expense of the Guarantor) consult with legal counsel, and the
written 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 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 Capital Securities Guarantee
Agreement Trustee shall have the right at any time to seek instructions
concerning the administration of this Capital Securities Guarantee
Agreement from any court of competent jurisdiction.
(v) The Capital Securities Guarantee Agreement Trustee shall be
under no obligation to exercise any of the rights or powers vested in
it by this Capital Securities Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have provided to the
Capital Securities Guarantee Agreement Trustee such adequate security
and indemnity as would satisfy a reasonable person in the position of
the Capital Securities Guarantee Agreement 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 Capital
Securities Guarantee Agreement Trustee; provided that nothing contained
in this Section 3.02(a)(v)
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shall be taken to relieve the Capital Securities Guarantee Agreement
Trustee, upon the occurrence of a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Capital Securities Guarantee Agreement.
(vi) The Capital Securities Guarantee Agreement Trustee shall not
be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Capital Securities Guarantee Agreement Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit.
(vii) The Capital Securities Guarantee Agreement Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, and the
Capital Securities Guarantee Agreement 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 Capital Securities
Guarantee Agreement the Capital Securities Guarantee Agreement 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 Agreement Trustee (A) may request
instructions from the Holders of the Capital 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.
(ix) The Capital Securities Guarantee Agreement Trustee shall have
no duty to see any recording, filing or registration of any instrument
(or any re-recording, refiling or re-registration thereof).
(x) Any action taken by the Capital Securities Guarantee Agreement
Trustee or its agents hereunder shall bind the Holders, and the
signature of the Capital Securities Guarantee Agreement Trustee or its
agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the authority
of the Capital Securities Guarantee Agreement Trustee to so act or as
to its compliance with any of the terms and provisions of this Capital
Securities Guarantee Agreement, both of which shall be conclusively
evidenced by the Capital Securities Guarantee Agreement Trustee's or
its agent's taking such action.
(xii) The Capital Securities Guarantee Agreement Trustee shall not
be liable for any action taken, suffered or omitted to be taken by it
in good faith,
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without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Capital Securities Guarantee Agreement.
(b) No provision of this Capital Securities Guarantee Agreement shall
be deemed to impose any duty or obligation on the Capital Securities Guarantee
Agreement 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 Agreement 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
Agreement Trustee shall be construed to be a duty to act in accordance with such
power and authority.
SECTION 3.03. Not Responsible for Recitals or Issuance of Capital
Securities Guarantee Agreement. The recitals contained in this Capital
Securities Guarantee Agreement shall be taken as the statements of the
Guarantor, and the Capital Securities Guarantee Agreement Trustee does not
assume any responsibility for their correctness. The Capital Securities
Guarantee Agreement Trustee makes no representation as to the validity or
sufficiency of this Capital Securities Guarantee Agreement.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 4.01. Capital Securities Guarantee Agreement Trustee;
Eligibility.
(a) There shall at all times be a Capital Securities Guarantee
Agreement 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 million U.S. dollars ($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 a supervising or examining
authority, then, for the purposes of this Section 4.01(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.
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(b) If at any time the Capital Securities Guarantee Agreement Trustee
shall cease to be eligible to so act under Section 4.01(a), the Capital
Securities Guarantee Agreement Trustee shall immediately resign in the
manner and with the effect set out in Section 4.02(c).
(c) If the Capital Securities Guarantee Agreement Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Capital Securities Guarantee Agreement Trustee
and Guarantor shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of Capital
Securities Guarantee Agreement Trustees.
(a) Subject to Section 4.02(b), the Capital Securities Guarantee
Agreement Trustee may be appointed or removed without cause at any time by
the Guarantor except during a Guarantee Event of Default.
(b) The Capital Securities Guarantee Agreement Trustee shall not be
removed until a Successor Capital Securities Guarantee Agreement Trustee has
been appointed and has accepted such appointment by written instrument
executed by such Successor Capital Securities Guarantee Agreement Trustee
and delivered to the Guarantor.
(c) The Capital Securities Guarantee Agreement Trustee appointed
hereunder shall hold office until a Successor Capital Securities Guarantee
Agreement Trustee shall have been appointed or until its removal or
resignation. The Capital Securities Guarantee Agreement Trustee may resign
from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Capital Securities Guarantee Agreement
Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Capital Securities Guarantee Agreement Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Capital Securities Guarantee Agreement Trustee
and delivered to the Guarantor and the resigning Capital Securities
Guarantee Agreement Trustee.
(d) If no Successor Capital Securities Guarantee Agreement Trustee
shall have been appointed and accepted appointment as provided in this
Section 4.02 within 30 days after delivery to the Guarantor of an instrument
of resignation, the resigning Capital Securities Guarantee Agreement Trustee
may petition, at the expense of the Guarantor, any court of competent
jurisdiction for appointment of a Successor Capital Securities Guarantee
Agreement Trustee. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Capital Securities
Guarantee Agreement Trustee.
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(e) No Capital Securities Guarantee Agreement Trustee shall be liable
for the acts or omissions to act of any Successor Capital Securities
Guarantee Agreement Trustee.
(f) Upon termination of this Capital Securities Guarantee Agreement or
removal or resignation of the Capital Securities Guarantee Agreement Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Capital
Securities Guarantee Agreement Trustee all amounts due to the Capital
Securities Guarantee Agreement Trustee accrued to the date of such
termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense (other than the defense of payment) right of set-off
or counterclaim which 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 5.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of the Capital Securities 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 Capital Securities Guarantee
Agreement Trustee, 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 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Capital Securities 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 Capital 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), Final Redemption Price,
liquidation Distribution or any other sums payable under the terms of the
Capital Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities;
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(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 Capital
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 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 Capital
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 (other than payment
of the underlying obligation) it being the intent of this Section 5.03 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 to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or
any defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such holder to
reduce the payments to it under this Guarantee.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Capital Securities Guarantee Agreement will be deposited with the
Capital Securities Guarantee Agreement Trustee to be held for the benefit of the
Holders; (ii) the Capital Securities Guarantee Agreement Trustee has the right
to enforce this Capital Securities Guarantee Agreement on behalf of the Holders;
(iii) the Holders of a Majority in liquidation amount of the 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 Agreement Trustee
in respect of this Capital Securities Guarantee Agreement or exercising any
trust or power conferred upon the Capital Securities Guarantee Agreement Trustee
under this Capital Securities Guarantee Agreement; provided, however, that
(subject to Section 3.01) the Capital Securities Guarantee Agreement Trustee
shall have the right to decline to follow any such direction if the Capital
Securities Guarantee Agreement Trustee shall determine that the actions so
directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Capital Securities Guarantee Agreement Trustee, being
advised by counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Capital Securities Guarantee Agreement Trustee in
good faith by its board of directors or trustees, executive committee or a trust
committee or
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directors or trustees and/or Responsible Officers shall determine that the
action or proceedings so directed would involve the Capital Securities Guarantee
Agreement Trustee in personal liability; and (iv) any Holder of Capital
Securities may institute, to the extent permissible under applicable law, a
legal proceeding directly against the Guarantor to enforce its rights under this
Capital Securities Guarantee Agreement without first instituting a legal
proceeding against the Capital Securities Guarantee Agreement Trustee, the
Issuer or any other Person. 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.
SECTION 5.05. Guarantee of Payment. This Capital Securities Guarantee
Agreement creates a guarantee of payment and not a guarantee of collection. This
Capital Securities Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Debentures to Holders as provided in
the Declaration.
SECTION 5.06. 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 Capital Securities Guarantee Agreement
and shall have the right to waive payment by the Issuer pursuant to Section
5.01; 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
Capital Securities Guarantee Agreement, if, at the time of any such payment, any
amounts are due and unpaid under this Capital Securities 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 5.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the 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 Capital Securities Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (g), inclusive,
of Section 5.03 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01. 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 (which
includes common and preferred stock), (ii) make any payment of principal,
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interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Guarantor (including any 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 any
securities of any subsidiary of the Guarantor (including Other Guarantees) if
such guarantee ranks pari passu or junior in right of payment to the Debentures
(other than in the case of clauses (i), (ii) and (iii), (a) dividends or
distributions in shares of, or options, warrants or 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 the Capital
Securities Guarantee Agreement, (d) as a result of a reclassification of the
Guarantor's capital stock solely into shares of one or more classes or series 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 the Guarantor's common stock in connection with the satisfaction by
the Guarantor of its obligations (including purchases related to the issuance of
such common stock or rights) under any of the Guarantor's benefit plans for its
and its subsidiaries' directors, officers or employees or any of the Guarantor's
dividend reinvestment plans), if at such time (x) a Guarantee Event of Default
or an Event of Default (as defined in the Indenture) shall have occurred and be
continuing, (y) if such Debentures are held by the Property Trustee, the
Guarantor shall be in default with respect to its payment of any obligations
under this Capital Securities Guarantee Agreement or (z) the Guarantor shall
have given notice of its election of the exercise of its right to extend the
interest payment period pursuant to Section 3.01(b)(6) of the Indenture and any
such extension shall have commenced and not yet terminated.
SECTION 6.02. Subordination. (a) The obligations of the Guarantor under
this Capital Securities Guarantee Agreement will constitute unsecured
obligations of the Guarantor and will rank subordinate and junior in right of
payment to all present and future Senior Indebtedness of the Guarantor to the
extent and in the manner that the Debentures are subordinated to all present and
future Senior Indebtedness pursuant to the Indenture, it being understood that
the terms of Article XII of the Indenture shall apply to the obligations of the
Guarantor under this Capital Securities Guarantee Agreement as if (x) such
Article XII were set forth herein in full and (y) such obligations were
substituted for the term "Securities" appearing in such Article XII and pari
passu with the Debentures and Other Debentures. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness (as defined in the Indenture) of
the Guarantor.
(b) The right of the Guarantor to participate in any distribution of
assets of any of its subsidiaries upon any such subsidiary's liquidation or
reorganization or otherwise is subject to the prior claims of creditors of that
subsidiary, except to the extent the Guarantor may itself be recognized as a
creditor of that subsidiary. Accordingly, the Guarantor's obligations under this
Capital Securities Guarantee Agreement will be effectively subordinated to all
existing and future
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liabilities of the Guarantor's subsidiaries, and claimants should look only to
the assets of the Guarantor for payments thereunder. This Capital Securities
Guarantee Agreement does not limit the incurrence or issuance of other secured
or unsecured debt of the Guarantor, including Senior Indebtedness of the
Guarantor, under any indenture that the Guarantor may enter into in the future
or otherwise.
(c) If an Event of Default has occurred and is continuing, the rights
of holders of the Common Trust Securities of the Issuer to receive payments
under the Common Trust Securities Guarantee are subordinated to the rights of
Holders of Capital Securities to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Capital Securities Guarantee Agreement
shall terminate and be of no further force and effect upon (i) full payment of
the Final Redemption Price of all Capital Securities, (ii) upon liquidation of
the Issuer and the distribution of the Debentures to Holders of Capital
Securities or (iii) at such other time when there are no longer any Capital
Securities outstanding. Notwithstanding the foregoing, this Capital Securities
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 Capital Securities or this Capital Securities Guarantee
Agreement. Guarantor will indemnify each Holder and hold it harmless from and
against any loss it may suffer in such circumstance.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 8.01. Compensation and Expenses of Capital Securities Guarantee
Agreement Trustee. The Guarantor covenants and agrees to pay to the Capital
Securities Guarantee Agreement Trustee from time to time, and the Capital
Securities Guarantee Agreement Trustee shall be entitled to, such compensation
as shall be agreed to in writing between the Guarantor and the Capital
Securities Guarantee Agreement Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Guarantor will pay or reimburse the Capital Securities Guarantee
Agreement Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Capital Securities Guarantee Agreement
Trustee in accordance with any of the provisions of this Capital Securities
Guarantee Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expenses, disbursements or advances as may arise form its
negligence or bad faith. The Guarantor
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also covenants to indemnify the Capital Securities Guarantee Agreement Trustee
(and its officers, agents, directors and employees) for, and to hold it harmless
against, any and all loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Capital Securities Guarantee
Agreement Trustee) incurred without negligence or bad faith on the part of the
Capital Securities Guarantee Agreement Trustee and arising out of or in
connection with the acceptance or administration of this guarantee, including
the costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Guarantor under this Article VIII to compensate
and indemnify the Capital Securities Guarantee Agreement Trustee and to pay or
reimburse the Capital Securities Guarantee Agreement Trustee for expenses,
disbursements and advances shall be secured by a lien prior to that of the
Capital Securities upon all property and funds held or collected by the Capital
Securities Guarantee Agreement Trustee as such, except funds held in trust for
the benefit of the holders of particular Capital Securities.
The provisions of this Article VIII shall survive the termination of
this Capital Securities Guarantee Agreement.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Capital Securities Guarantee Agreement and in a manner that
such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Capital Securities
Guarantee Agreement or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence, 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 might properly be paid.
SECTION 9.02. Indemnification. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense 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,
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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 obligation to indemnify as set forth in this Section 9.02 shall
survive the termination of this Capital Securities Guarantee Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Successors and Assigns. All guarantees and agreements
contained in this Capital Securities 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 Capital Securities then
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor or a conveyance, transfer or lease of the Guarantor's properties
that is permitted under Article Eight of the Indenture and pursuant to which the
successor or assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder, and any
purported assignment other than in accordance with this provision shall be void.
SECTION 10.02. Amendments. Except with respect to any changes that do
not adversely affect the rights of Holders in any material respect (in which
case no consent of Holders will be required), this Capital Securities Guarantee
Agreement may be amended only with the prior approval of the Holders of not less
than a Majority in liquidation amount of the outstanding Capital Securities
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined). The provisions of the Declaration concerning
meetings of Holders shall apply to the giving of such approval.
SECTION 10.03. 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 or telecopy number set
forth below or such other address as the Guarantor may give notice of to the
Capital Securities Guarantee Agreement Trustee:
Ocwen Financial Corporation
The Forum, Suite 1000
1675 Palm Beach Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No: _______________
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Attention: _________________
(b) if given to the Issuer, at the address or telecopy number set forth
below or such other address as the Issuer may give notice of to the Capital
Securities Guarantee Agreement Trustee:
Ocwen Capital Trust II
c/o Ocwen Financial Corporation
The Forum, Suite 1000
1675 Palm Beach Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No: _______________
Attention: Administrative Trustee
with copy to:
Norwest Bank Minnesota, National Association
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No: _______________
Attention: Corporate Trust Department
(c) if given to the Capital Securities Guarantee Agreement Trustee, at
the Capital Securities Guarantee Agreement Trustee's address or telecopy
number set forth below:
Norwest Bank Minnesota, National Association
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No: _______________
Attention: Corporate Trust Department
(d) if given to any Holder of Capital Securities, 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
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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 10.04. Benefit. This Capital Securities Guarantee Agreement is
solely for the benefit of the Holders, and is not separately transferable from
the Capital Securities.
SECTION 10.05. Interpretation. In this Capital Securities Guarantee
Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Capital Securities Guarantee
Agreement but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.01 unless otherwise indicated;
(b) a term defined anywhere in this Capital Securities Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Capital Securities Guarantee Agreement" or
"this Capital Securities Guarantee Agreement" are to this Capital Securities
Guarantee Agreement as modified, supplemented or amended from time to time;
(d) all references in this Capital Securities Guarantee Agreement to
Articles and Sections are to Articles and Sections of this Capital
Securities Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Capital Securities Guarantee Agreement unless otherwise defined
in this Capital Securities Guarantee Agreement or unless the context
otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 10.06. GOVERNING LAW. THIS CAPITAL SECURITIES GUARANTEE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS
PROVISIONS.
SECTION 10.07. Counterparts. This Capital Securities Guarantee
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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This Capital Securities Guarantee Agreement is executed as of the day
and year first above written.
OCWEN FINANCIAL CORPORATION
By:___________________________
Name:
Title:
NORWEST BANK MINNESOTA, National
Association as Capital Securities
Guarantee Agreement Trustee
By:____________________________
Name:
Title:
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