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CONVERTIBLE PREFERRED SECURITIES GUARANTEE AGREEMENT
SUN HEALTHCARE GROUP, INC.
DATED AS OF MAY 4, 1998
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation. . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. . . . . . . . . . . . 5
SECTION 2.2. List of Holders of Securities . . . . . . . . . . . . . 6
SECTION 2.3. Reports by the Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.4. Periodic Reports to the Preferred
Guarantee Trustee . . . . . . . . . . . . . . . . . . 6
SECTION 2.5. Evidence of Compliance with
Conditions Precedent. . . . . . . . . . . . . . . . . 6
SECTION 2.6. Event of Default; Waiver. . . . . . . . . . . . . . . . 7
SECTION 2.7. Event of Default; Notice. . . . . . . . . . . . . . . . 7
SECTION 2.8. Conflicting Interests . . . . . . . . . . . . . . . . . 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
THE PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred
Guarantee Trustee . . . . . . . . . . . . . . . . . . 7
SECTION 3.2. Certain Rights of the Preferred
Guarantee Trustee . . . . . . . . . . . . . . . . . . 10
SECTION 3.3. Not Responsible for Recitals or
Issuance of Guarantee . . . . . . . . . . . . . . . . 12
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee;
Eligibility . . . . . . . . . . . . . . . . . . . . . 12
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SECTION 4.2. Appointment, Removal and Resignation
of Preferred Guarantee Trustees. . . . . . . . . . . . 13
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.2. Subordination . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.3. Waiver of Notice and Demand . . . . . . . . . . . . . . 14
SECTION 5.4. Obligations Not Affected. . . . . . . . . . . . . . . . 15
SECTION 5.5. Rights of Holders . . . . . . . . . . . . . . . . . . . 16
SECTION 5.6. Guarantee of Payment. . . . . . . . . . . . . . . . . . 16
SECTION 5.7. Subrogation . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.8. Independent Obligations . . . . . . . . . . . . . . . . 17
SECTION 5.9. Conversion. . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1. Limitation of Transactions. . . . . . . . . . . . . . . 17
SECTION 6.2. Ranking . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
TERMINATION
SECTION 7.1. Termination . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 8.2. Indemnification . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns. . . . . . . . . . . . . . . . . 20
SECTION 9.2. Amendments. . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 9.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.4. Benefit . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.5. Governing Law . . . . . . . . . . . . . . . . . . . . . 21
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CROSS REFERENCE TABLE*
Section of Trust Section of
Indenture Act of Guarantee
1939, As amended Agreement
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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, 5.5
316(b) . . . . . . . . . . . . . . . . . . . . . . 5.4
317(a) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . 2.1
318(c) . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
* 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.
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CONVERTIBLE PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Preferred
Securities Guarantee"), dated as of May 4, 1998, is executed and delivered by
Sun Healthcare Group, Inc., a Delaware corporation (the "Guarantor"), and The
Bank of New York, as trustee (the "Preferred Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of Sun Financing I, a Delaware statutory business
trust (the "Trust");
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of May 4, 1998, among the trustees of the Trust named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
on the date hereof 13,800,000 convertible preferred securities, having a
liquidation amount of $25 per preferred security, designated the 7% Convertible
Trust Issued Preferred Securities (the "Convertible Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Convertible
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Convertible Preferred Securities
Guarantee, to guarantee the obligations of the Trust to the Holders of the
Convertible Preferred Securities on the terms and conditions set forth herein;
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Convertible Preferred Securities Guarantee for the benefit of the
holders of the Common Securities (as defined herein), except that if an event of
default (as defined in the Indenture (as defined herein)) (an "Indenture Event
of Default"), has occurred and is continuing, the rights of holders of the
Common Securities to receive Guarantee Payments (as defined in the Common
Securities Guarantee) under the Common Securities Guarantee shall be
subordinated to the rights of Holders of Convertible Preferred Securities to
receive Guarantee Payments (as defined herein) under this Convertible Preferred
Securities Guarantee; and
NOW, THEREFORE, in consideration of the purchase by each Holder of
Convertible Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this
Convertible Preferred Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION.
In this Convertible Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Convertible Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date hereof have the
same meaning when used in this Convertible Preferred Securities Guarantee unless
otherwise defined in this Convertible Preferred Securities Guarantee;
(c) a term defined anywhere in this Convertible Preferred
Securities Guarantee has the same meaning throughout;
(d) all references to "the Convertible Preferred Securities
Guarantee" or "this Convertible Preferred Securities Guarantee" are to this
Convertible Preferred Securities Guarantee as modified, supplemented or amended
from time to time;
(e) all references in this Convertible Preferred Securities
Guarantee to Articles and Sections are to Articles and Sections of this
Convertible Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Convertible Preferred Securities Guarantee, unless otherwise
defined in this Convertible Preferred Securities Guarantee or unless the context
otherwise requires;
(g) a reference to the singular includes the plural and vice versa;
(h) a reference to any Person shall include its successors and
assigns;
(i) a reference to any agreement or instrument shall mean such
agreement or instrument, as supplemented, modified, amended, or amended and
restated, and in effect from time to time; and
(j) a reference to any statute, law, rule or regulation, shall
include any amendments thereto applicable to the relevant Person, and any
successor statute, law, rule or regulation.
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"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Business Day" means any day other than a day on which banking
institutions in New York, New York or in Wilmington, Delaware are authorized or
required by any applicable law or executive order to close.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Trust.
"Convertible Debentures" means the 7% Convertible Debentures due May
4, 2028 of the Guarantor held by the Property Trustee (as defined in the
Declaration).
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, Xxxxx 21
West, New York, New York 10286, Attention: Corporate Trust Trustee,
Administration.
"Covered Person" means any Holder or beneficial owner of Convertible
Preferred Securities.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Convertible Preferred Securities
Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Convertible Preferred Securities, to
the extent not paid or made by the Trust: (i) any accrued and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
the Convertible Preferred Securities to the extent the Trust has funds available
therefor, (ii) the redemption price, with respect to any Convertible Preferred
Securities called for redemption by the Trust (the "Redemption Price"), to the
extent the Trust has funds available therefor, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust (other than in
connection with the distribution of Convertible Debentures to the Holders of
Convertible Preferred Securities or the redemption of all the Convertible
Preferred Securities (as provided in the Declaration)), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions on
the Convertible Preferred Securities to the date of payment to the extent the
Trust has funds available therefor and (b) the amount of assets of the Trust
remaining available for
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distribution to Holders of Convertible Preferred Securities upon the liquidation
of the Trust (in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Trust of any Convertible Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Convertible
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of May 4, 1998 , among the
Guarantor and The Bank of New York, as trustee, pursuant to which the
Convertible Debentures are to be issued to the Property Trustee of the Trust.
"Indenture Trustee" means the Person acting as trustee under the
Indenture, initially The Bank of New York.
"Majority in liquidation amount of the Convertible Preferred
Securities" means, except as provided by the Trust Indenture Act, a vote by
Holder(s) of Convertible Preferred Securities, voting separately as a class, of
more than 50% of the liquidation amount of all Convertible Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Convertible Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition 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
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(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.
"Preferred Guarantee Trustee" means The Bank of New York, until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Convertible Preferred Securities
Guarantee and thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
any secretary, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred Guarantee
Trustee possessing the qualifications to act as Preferred Guarantee Trustee
under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Convertible Preferred Securities Guarantee is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Convertible Preferred Securities Guarantee and shall, to the extent applicable,
be governed by such provisions.
(b) If and to the extent that any provision of this Convertible
Preferred Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
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SECTION 2.2. LIST OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Convertible Preferred
Securities ("List of Holders") as of such date, (i) within 14 Business Day after
each record date for payment of Distributions, as of such record date, and (ii)
at any other time within 30 days of receipt by the Guarantor of a written
request for a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Preferred Guarantee Trustee, PROVIDED that the
Guarantor shall not be obligated to provide such List of Holders at any time (x)
the List of Holders does not differ from the most recent List of Holders given
to or held by the Preferred Guarantee Trustee by the Guarantor or (y) the
Convertible Preferred Securities are represented by one or more Global
Securities (as defined in the Indenture). The Preferred Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. REPORTS BY THE PREFERRED GUARANTEE TRUSTEE.
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Convertible Preferred Securities
such reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust Indenture
Act. The Preferred Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO THE PREFERRED GUARANTEE TRUSTEE.
The Guarantor shall provide to the Preferred Guarantee Trustee 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.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Convertible Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
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SECTION 2.6. EVENT OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of Convertible
Preferred Securities may, by vote, on behalf of the Holders of all of the
Convertible Preferred Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Convertible Preferred Securities Guarantee, but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Convertible Preferred Securities, notices of all
Events of Default actually known to a Responsible Officer of the Preferred
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice; PROVIDED that the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Preferred
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Convertible Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge.
SECTION 2.8. CONFLICTING INTERESTS.
The Declaration shall be deemed to be specifically described in this
Convertible Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE.
(a) This Convertible Preferred Securities Guarantee shall be held
by the Preferred Guarantee Trustee for the benefit of the Holders of the
Convertible Preferred Securities, and the Preferred Guarantee Trustee shall not
transfer this Convertible Preferred Securities Guarantee to any
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Person except a Holder exercising his or her rights pursuant to Section 5.5(b)
or to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee Trustee,
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 Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall, to the extent required pursuant to the terms hereof,
take any action requested by the holders of a majority in Liquidation Amount of
the Convertible Preferred Securities, enforce this Convertible Preferred
Securities Guarantee for the benefit of the Holders of the Convertible Preferred
Securities.
(c) The Preferred 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 Convertible Preferred Securities Guarantee, and no implied
covenants shall be read into this Convertible Preferred Securities Guarantee
against the Preferred Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Convertible Preferred Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(d) No provision of this Convertible Preferred Securities Guarantee
shall be construed to relieve the Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that
may have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the
express provisions of this Convertible Preferred
Securities Guarantee, and the Preferred Guarantee
Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set
forth in this Convertible Preferred Securities
Guarantee, and no implied covenants or obligations
shall be read into this Convertible Preferred
Securities Guarantee against the Preferred Guarantee
Trustee; and
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(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and
conforming to the requirements of this Convertible
Preferred Securities Guarantee; but in the case of any
such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Preferred Guarantee Trustee, the Preferred Guarantee
Trustee shall be under a duty to examine the same to
determine whether or not they conform on their face to
the requirements of this Convertible Preferred
Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Preferred Guarantee Trustee, unless it shall be
proved that the Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders
of not less than a Majority in liquidation amount of the
Convertible Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available
to the Preferred Guarantee Trustee, or exercising any trust or
power conferred upon the Preferred Guarantee Trustee under this
Convertible Preferred Securities Guarantee; and
(iv) no provision of this Convertible Preferred Securities
Guarantee shall require the Preferred Guarantee Trustee to
expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the
Preferred 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 Convertible
Preferred Securities Guarantee or indemnity, reasonably
satisfactory to the Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
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SECTION 3.2. CERTAIN RIGHTS OF THE PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining from
acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Convertible Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Convertible
Preferred Securities Guarantee, the Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the
Preferred Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument
(or any rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the written advice or opinion of
such counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Preferred Guarantee Trustee
shall have the right at any time to seek instructions
concerning the administration of this Convertible Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it
by this Convertible Preferred Securities Guarantee at the
request or direction of any Holder, unless such
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Holder shall have provided to the Preferred Guarantee Trustee
such security and indemnity, reasonably satisfactory to the
Preferred 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 Preferred Guarantee Trustee; PROVIDED that
nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Convertible Preferred
Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Preferred Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians
or attorneys, and the Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Convertible
Preferred Securities, and the signature of the Preferred
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be
required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Convertible Preferred
Securities Guarantee, both of which shall be conclusively
evidenced by the Preferred Guarantee Trustee's or its agent's
taking such action.
(x) Whenever in the administration of this Convertible
Preferred Securities Guarantee the Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Preferred Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation
amount of the Convertible Preferred Securities, (ii) may
refrain from enforcing such remedy or right or taking such
other action until such instructions are received and (iii)
shall be
11
protected in conclusively relying on or acting in accordance
with such instructions.
(xi) The Preferred Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by
this Convertible Preferred Securities Guarantee.
(b) No provision of this Convertible Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Preferred Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power
or authority available to the Preferred Guarantee Trustee shall be construed to
be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Convertible Preferred Securities
Guarantee shall be taken as the statements of the Guarantor, and the Preferred
Guarantee Trustee does not assume any responsibility for their correctness. The
Preferred Guarantee Trustee makes no representation as to the validity or
sufficiency of this Convertible Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
50 Million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes
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reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE
TRUSTEES.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred 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 removal or resignation,
the resigning or removed Preferred Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Preferred Guarantee Trustee.
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(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Convertible Preferred Securities
Guarantee or removal or resignation of the Preferred Guarantee Trustee pursuant
to this Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee
all amounts accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders (except to the extent paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Trust may
have or assert, the Guarantee Payments, without duplication. 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 Trust to pay
such amounts to the Holders.
SECTION 5.2. SUBORDINATION.
If an Indenture Event of Default has occurred and is continuing, the
rights of Holders of Common Securities to receive Guarantee Payments under the
Common Securities Guarantee are subordinate to the rights of Convertible
Preferred Securities to receive Guarantee Payments under this Convertible
Preferred Securities Guarantee.
SECTION 5.3. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Convertible
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.4. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Convertible Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
14
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Convertible Preferred Securities to
be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Convertible Preferred Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Convertible Preferred Securities
(other than an extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the extension of
any interest payment period on the Convertible Debentures or any extension of
the maturity date of the Convertible Debentures permitted by the Indenture);
(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 Convertible
Preferred Securities, or any action on the part of the Trust granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Convertible
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 5.4 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 any other Persons to
give notice to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.5. RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the
Convertible Preferred Securities have the right to direct the time, method and
place of conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Convertible Preferred Securities
15
Guarantee or to direct the exercise of any trust or power conferred upon the
Preferred Guarantee Trustee under this Convertible Preferred Securities
Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such
Convertible Preferred Securities Guarantee, any Holder may directly institute a
legal proceeding against the Guarantor to enforce the obligations of the
Guarantor under this Convertible Preferred Securities Guarantee without first
instituting a legal proceeding against the Trust, the Preferred Guarantee
Trustee or any other Person. The Company has waived any right or remedy to
require that any action be brought just against the Trust, or any other person
or entity, before proceeding directly against the Company.
(c) If an event of default with respect to the Convertible
Debentures constituting the failure to pay interest or principal on the
Convertible Debentures on the date such interest or principal is otherwise
payable has occurred and is continuing, then a Holder of Convertible Preferred
Securities may directly, at any time, institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Convertible
Debentures having a principal amount equal to the aggregate liquidation amount
of the Convertible Preferred Securities of such Holder on or after the
respective due date specified in the Convertible Debentures. The Holders of
Convertible Preferred Securities will not be able to exercise directly any other
remedy available to the holders of the Convertible Debentures unless the
Property Trustee (as defined in the Indenture) fails to do so.
SECTION 5.6. GUARANTEE OF PAYMENT.
This Convertible Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.7. SUBROGATION.
The Guarantor shall be subrogated to all, if any, rights of the
Holders against the Trust in respect of any amounts paid to such Holders by the
Guarantor under this Convertible Preferred Securities Guarantee; PROVIDED,
HOWEVER, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Convertible Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Convertible Preferred Securities Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
SECTION 5.8. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Convertible
Preferred Securities, and that the Guarantor
16
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Convertible Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g) inclusive, of Section 5.4 hereof.
SECTION 5.9. CONVERSION.
The Guarantor acknowledges its obligation to issue and deliver common
stock of the Guarantor upon the conversion of the Convertible Preferred
Securities.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Convertible Preferred Securities remain outstanding, if
(i) the Company has exercised its option to defer interest payments on the
Convertible Debentures by extending the interest payment period and such
extension shall be continuing, (ii) if there shall have occurred any Event of
Default under this Convertible Preferred Securities Guarantee, or (iii) there
shall have occurred and be continuing any event that, with the giving of notice
or the lapse of time or both, would constitute an Indenture Event of Default,
then the Guarantor has agreed (a) not to declare or pay dividends on, or make a
distribution with respect to, or redeem, purchase acquire or make a liquidation
payment with respect to, any of its capital stock (other than (i) purchases or
acquisitions of shares of common stock in connection with the satisfaction by
the Guarantor of its obligations under any employee benefit plans or the
satisfaction by the Guarantor of its obligations pursuant to any contract or
security requiring the Guarantor to purchase shares of common stock, (ii) as a
result of a reclassification of the Guarantor's capital stock or the exchange or
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock or (iii) 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 (or make any guarantee payments with respect to the
foregoing)), and (b) not to make any payment of interest, principal or premium,
if any, on or repay, repurchase or redeem any debt securities of the Company
that rank PARI PASSU with or junior to the Convertible Debentures (except by
conversion into or exchange for shares of its capital stock, and (c) not to make
any guarantee payments with respect to the foregoing (other than pursuant to
this Convertible Preferred Securities Guarantee).
SECTION 6.2. RANKING.
(a) This Convertible Preferred Securities Guarantee will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior to all other liabilities of the Guarantor except any liabilities that may
be PARI PASSU expressly by their terms, (ii) PARI PASSU with the most senior
preferred stock issued from time to time by the Guarantor and with any guarantee
now
17
or hereafter entered into by the Guarantor in respect of any preferred or
preference stock or preferred securities of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
(b) The holders of any obligations of the Guarantor that are senior
in priority to the obligations under this Convertible Preferred Securities
Guarantee will be entitled to all of the rights inuring to the holders of
"Senior Indebtedness" under Article 12 of the Indenture, and the Holders of the
Convertible Preferred Securities will be subject to all of the terms and
conditions of such Article 12 with respect to any claims or rights hereunder
with the same effect as though fully set forth herein.
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Convertible Preferred Securities Guarantee will terminate as to
each Holder upon (i) full payment of the Redemption Price of all Convertible
Preferred Securities; (ii) distribution of the Convertible Debentures held by
the Trust to the Holders; (iii) liquidation of the Trust, or (iv) upon the
distribution of Guarantor's common stock to such Holder in respect of conversion
of such Holder's Convertible Preferred Securities into common stock of the
Guarantor. The Guarantee also will terminate completely upon full payment of
the amounts payable in accordance with the Declaration. This Convertible
Preferred Securities Guarantee 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 under such Convertible Preferred Securities or under this
Convertible Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) Subject to Section 3.1(d), 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 Convertible Preferred Securities Guarantee and in a manner
that such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Convertible Preferred
Securities Guarantee or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence or willful misconduct with respect to such acts or
omissions.
(b) Subject to Section 3.1(d), 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
18
reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Guarantor, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Convertible Preferred Securities might properly be paid.
SECTION 8.2. INDEMNIFICATION.
Subject to Section 3.1(d), the Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any loss, liability or expense incurred without gross negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Convertible Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Convertible Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Convertible Preferred Securities then outstanding. Except in connection
with any permitted merger or consolidation of the Guarantor with or into another
entity or any permitted sale, transfer or lease of the Guarantor's assets to
another entity as described in the Indenture, the Guarantor may not assign its
rights or delegate its obligations under this Convertible Preferred Securities
Guarantee without the prior approval of the Holders of at least a Majority of
the aggregate stated liquidation amount of the Convertible Preferred Securities
then outstanding.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no vote will be required), this
Convertible Preferred Securities Guarantee may be amended only with the prior
approval of the Holders of at least a Majority in liquidation amount of all the
outstanding Convertible Preferred Securities. The provisions of Section 11.2 of
the Declaration with respect to meetings of Holders of the Convertible Preferred
Securities apply to the giving of such approval.
19
SECTION 9.3. NOTICES.
All notices provided for in this Convertible Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, sent by facsimile or courier or mailed by registered or
certified mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Convertible Preferred Securities):
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee, Administration
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Convertible Preferred Securities):
Sun Healthcare Group, Inc.
000 Xxx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Senior Vice President, General Counsel and Secretary
(c) If given to any Holder at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by registered or certified
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 Convertible Preferred Securities Guarantee is solely for the
benefit of the Holders of the Convertible Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Convertible Preferred
Securities.
20
SECTION 9.5. GOVERNING LAW.
THIS CONVERTIBLE PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD
TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
21
THIS CONVERTIBLE PREFERRED SECURITIES GUARANTEE is executed as of the
day and year first above written.
SUN HEALTHCARE GROUP, INC.,
as Guarantor
By:/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
THE BANK OF NEW YORK,
as Preferred Guarantee Trustee
By:/s/ Xxxx XxXxxxxx
------------------------------------------
Name: Xxxx XxXxxxxx
Title: Assistant Vice President
