Exhibit 4.7
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CAPITAL SECURITIES GUARANTEE AGREEMENT
XXXXXX CAPITAL TRUST I
Dated as of ________________, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETATION.......................................................1
SECTION 1.1. DEFINITIONS AND INTERPRETATION..............................................1
ARTICLE II TRUST INDENTURE ACT.................................................................5
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION............................................5
SECTION 2.2. LISTS OF HOLDERS OF TRUST SECURITIES........................................5
SECTION 2.3. REPORTS BY CAPITAL GUARANTEE TRUSTEE........................................6
SECTION 2.4. PERIODIC REPORTS TO CAPITAL GUARANTEE TRUSTEE...............................6
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT............................6
SECTION 2.6. EVENTS OF DEFAULT; WAIVER...................................................6
SECTION 2.7. EVENT OF DEFAULT; NOTICE....................................................6
SECTION 2.8. CONFLICTING INTERESTS.......................................................7
ARTICLE III POWER, DUTIES AND RIGHTS OF CAPITAL GUARANTEE TRUSTEE..............................7
SECTION 3.1. POWERS AND DUTIES OF CAPITAL GUARANTEE TRUSTEE..............................7
SECTION 3.2. CERTAIN RIGHTS OF CAPITAL GUARANTEE TRUSTEE.................................9
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE......................11
ARTICLE IV CAPITAL GUARANTEE TRUSTEE..........................................................11
SECTION 4.1. CAPITAL GUARANTEE TRUSTEE; ELIGIBILITY.....................................11
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF CAPITAL GUARANTEE TRUSTEE..........12
ARTICLE V GUARANTEE...........................................................................12
SECTION 5.1. GUARANTEE..................................................................12
SECTION 5.2. [RESERVED].................................................................13
SECTION 5.3. WAIVER OF NOTICE AND DEMAND................................................13
SECTION 5.4. OBLIGATIONS NOT AFFECTED...................................................13
SECTION 5.5. RIGHTS OF HOLDERS..........................................................14
SECTION 5.6. GUARANTEE OF PAYMENT.......................................................14
SECTION 5.7. SUBROGATION................................................................14
SECTION 5.8. INDEPENDENT OBLIGATIONS....................................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION..........................................15
SECTION 6.1. LIMITATION OF TRANSACTIONS.................................................15
SECTION 6.2. RANKING....................................................................15
ARTICLE VII TERMINATION.......................................................................16
SECTION 7.1. TERMINATION................................................................16
ARTICLE VIII INDEMNIFICATION..................................................................16
SECTION 8.1. EXCULPATION................................................................16
SECTION 8.2. INDEMNIFICATION............................................................17
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ARTICLE IX MISCELLANEOUS......................................................................17
SECTION 9.1. SUCCESSORS AND ASSIGNS.....................................................17
SECTION 9.2. AMENDMENTS.................................................................17
SECTION 9.3. LIMITATION OF LIABILITY....................................................18
SECTION 9.4. NOTICES....................................................................18
SECTION 9.5. BENEFIT....................................................................19
SECTION 9.6. GOVERNING LAW..............................................................19
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CAPITAL SECURITIES GUARANTEE AGREEMENT
THIS CAPITAL SECURITIES GUARANTEE AGREEMENT ("Capital
Securities Guarantee Agreement"), dated as of _____________, 2001, is executed
and delivered by Xxxxxx Financial Corporation, a Minnesota corporation (the
"Guarantor"), and Wilmington Trust Company, a Delaware banking corporation, as
trustee, for the benefit of the holders, from time to time, of the Capital
Securities of Xxxxxx Capital Trust I, a Delaware statutory business trust (the
"Trust") (in such capacity, the "Capital Guarantee Trustee").
RECITALS
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of _______________, 2001, 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 [$__ MILLION] aggregate stated liquidation amount
of Capital Securities designated the _____% Capital Securities (the "Capital
Securities");
WHEREAS, as incentive for such holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Capital Securities Guarantee Agreement, to pay to
the holders, from time to time, of Capital Securities the Guarantee Payments (as
defined below) and to make certain other payments on the terms and conditions
set forth herein; and
NOW, THEREFORE, in consideration of the purchase by each
holder of 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 AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND 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 above have the respective meanings
assigned to them in this Section 1.1.;
(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; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Capital Guarantee Trustee" means Wilmington Trust Company, until a
Successor Capital Guarantee 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 Guarantee Trustee.
"Capital Securities" has the meaning set forth in the preamble.
"Common Securities" means the common securities of the Trust designated
____% Trust Originated Common Securities issued on the date hereof.
"Corporate Trust Office" means the principal office of the Capital
Guarantee Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Capital
Securities Guarantee Agreement is located at Wilmington Trust Company, Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn:
Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Debenture Issuer" means the Guarantor in its capacity as issuer of the
Debentures.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture and acquired by the Trust.
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"Declaration" has the meaning set forth in the preamble.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person by the Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Distribution" means a distribution payable to Holders of Trust
Securities in accordance with the terms of the Declaration.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Capital Securities Guarantee Agreement.
"Guarantee Payments" mean the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by the Trust: (i) any accrued and unpaid Distributions that are
required to be paid on such Capital Securities, to the extent the Trust shall
have received a payment of interest or principal on the Debentures therefor from
the Guarantor, (ii) the Redemption Price, to the extent the Trust has received a
payment of interest or principal on the Debentures from the Guarantor with
respect to any Capital Securities called for redemption by the Trust, and (iii)
the Liquidation Distribution due upon a voluntary or involuntary dissolution,
winding-up or termination of the Trust (other than in connection with the
distribution of Debentures to the Holders in exchange for Capital Securities as
provided in the Declaration or the redemption of all of the Capital Securities
upon the maturity or redemption of the Debentures).
"Holder" means a Person in whose name a Certificate representing a
Trust Security is registered on the books and records of the Trust, such Person
being a beneficial owner within the meaning of the Delaware Business Trust Act,
provided, 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, or any Affiliate of the
Guarantor.
"Indemnified Person" means the Capital Guarantee Trustee, any Affiliate
of the Capital Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Capital Guarantee
Trustee.
"Indenture" means the Indenture dated as of ____________, 2001, among
the Debenture Issuer and Wilmington Trust Company, as trustee, as supplemented
by the First Supplemental Indenture dated ____________, 2001, and any indenture
supplemental thereto.
"Liquidation Distribution" means the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Capital
Securities to the date of payment to the extent the Trust shall have received
payments of interest or principal on the
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Debentures therefor from the Guarantor, or (b) the amount of assets of the Trust
remaining available for distribution to Holders in liquidation of the Trust.
"List of Holders" has the meaning set forth in Section 2.2.(a).
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Capital
Securities, voting separately as a class, of more than 50% of the aggregate
liquidation amount (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) of all outstanding
Capital 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 Capital Securities Guarantee Agreement 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 compiled with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Redemption Price" means the liquidation amount of $25 per Trust
Security plus all accrued and unpaid Distributions to the date of redemption.
"Responsible Officer" means, when used with respect to the Capital
Guarantee Trustee, an officer in the Corporate Trust Office of the Capital
Guarantee Trustee, including the president, any vice-president, any assistant
vice-president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer 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,
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any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Successor Capital Guarantee Trustee" means a successor Capital
Guarantee Trustee possessing the qualifications to act as Capital Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect at the date as of which this instrument was executed, provided, however,
that in the event the Trust Indenture Act is amended after such date, "Trust
Indenture Act" means to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Securities" means collectively the Common Securities and the
Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. 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
Sections 310 to 317 (inclusive) of the Trust Indenture Act, the duties imposed
by the Trust Indenture Act shall control.
SECTION 2.2. LISTS OF HOLDERS OF TRUST SECURITIES.
(a) The Guarantor shall provide the Capital Guarantee Trustee with a
list, in such form as the Capital Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of Capital Securities ("List of Holders")
as of such date, (i) within 14 days after each record date for payment of
Distributions, and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Capital Guarantee Trustee,
provided 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 Guarantee Trustee by the Guarantor. The
Capital Guarantee Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
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(b) The Capital Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY CAPITAL GUARANTEE TRUSTEE.
Within 60 days after December 31 of each year, the Capital Guarantee
Trustee shall provide to the Holders of the Capital Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Capital
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO CAPITAL GUARANTEE TRUSTEE.
The Guarantor shall provide to the Capital Guarantee Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act, 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 Capital Guarantee Trustee such
evidence of compliance with any 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) of the
Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
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 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
Capital Securities Guarantee Agreement, 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 Capital 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 Capital Securities, notices of all Events of Default
known to the Capital Guarantee Trustee, unless such defaults have been cured
before the giving of such notice, provided, that, the Capital Guarantee Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
Responsible Officers
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of the Capital Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of Capital Securities.
(b) The Capital Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Capital Guarantee Trustee shall have received
written notice as provided in Section 9.4., or a Responsible Officer of the
Capital Guarantee Trustee shall have obtained actual notice, of such Event of
Default.
SECTION 2.8. CONFLICTING INTERESTS.
The Declaration shall be deemed to be specifically described in this
Capital Securities Guarantee Agreement for the purposes of clause (1) the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWER, DUTIES AND RIGHTS OF
CAPITAL GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF CAPITAL GUARANTEE TRUSTEE.
(a) This Capital Securities Guarantee Agreement shall be held by the
Capital Guarantee Trustee for the benefit of the Holders of Capital Securities,
and the Capital Guarantee Trustee shall not transfer this Capital Securities
Guarantee Agreement to any Person except a Holder of Capital Securities
exercising his or her rights pursuant to Section 5.5.(b) or to a Successor
Capital Guarantee Trustee on acceptance by such Successor Capital Guarantee
Trustee of its appointment to act as Successor Capital Guarantee Trustee. The
right, title and interest of the Capital Guarantee Trustee shall automatically
vest in any Successor Capital 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 Capital
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Capital
Guarantee Trustee shall enforce this Capital Securities Guarantee Agreement for
the benefit of the Holders of the Capital Securities.
(c) The Capital 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 Capital Securities Guarantee Agreement, and no implied covenants shall be
read into this Capital Securities Guarantee Agreement against the Capital
Guarantee Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6.), the Capital Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Capital Securities
Guarantee
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Agreement, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Capital Securities Guarantee Agreement shall
be construed to relieve the Capital 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 Capital
Guarantee Trustee shall be determined solely by the express
provisions of this Capital Securities Guarantee Agreement, and
the Capital Guarantee 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 Capital Securities Guarantee Agreement against
the Capital Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Capital Guarantee Trustee, the Capital Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Capital Guarantee
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 are
specifically required to be furnished to the Capital Guarantee
Trustee, the Capital Guarantee 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 Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Capital Guarantee Trustee, unless it shall be proved that the Capital
Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Capital 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 Capital Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Capital Guarantee Trustee, or exercising any trust or
power conferred upon the Capital Guarantee Trustee under this Capital
Securities Guarantee Agreement; and
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(iv) no provision of this Capital Securities Guarantee
Agreement shall require the Capital Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Capital 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
Capital Securities Guarantee Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF CAPITAL GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1.:
(i) The Capital Guarantee Trustee may 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 Capital Securities Guarantee Agreement shall be sufficiently
evidenced by a Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Capital
Securities Guarantee Agreement, the Capital Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Capital 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 Capital Guarantee Trustee may consult with counsel,
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 Capital Guarantee 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.
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(vi) The Capital Guarantee 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 of Capital Securities, unless such Holder shall have
provided to the Capital Guarantee Trustee such security and indemnity
acceptable to the Capital 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 Capital
Guarantee Trustee; provided that, nothing contained in this Section
3.2.(a)(vi) shall be taken to relieve the Capital Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Capital Securities
Guarantee Agreement.
(vii) The Capital 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 Capital Guarantee
Trustee, in its discretion may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Capital Guarantee 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
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 Capital Guarantee Trustee or its
agents hereunder shall bind the Holders of Capital Securities, and the
signature of the Capital 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 Capital
Guarantee 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 Guarantee
Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Capital Securities
Guarantee Agreement the Capital Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Capital Guarantee
Trustee (A) may request instructions from the Holders of 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.
(b) No provision of this Capital Securities Guarantee Agreement shall
be deemed to impose any duty or obligation on the Capital Guarantee Trustee to
perform any act or acts
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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 Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Capital 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 Capital Securities Guarantee Agreement
shall be taken as the statements of the Guarantor, and the Capital Guarantee
Trustee does not assume any responsibility for their correctness. The Capital
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Capital Securities Guarantee Agreement.
ARTICLE IV
CAPITAL GUARANTEE TRUSTEE
SECTION 4.1. CAPITAL GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Capital 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 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 fifty
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 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 Capital Guarantee Trustee shall cease to be
eligible to so act under Section 4.1.(a), the Capital Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2.(c).
(c) If the Capital Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Guarantee
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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 CAPITAL GUARANTEE TRUSTEE.
(a) Subject to Section 4.2.(b), the Capital Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Capital Guarantee Trustee shall not be removed in accordance
with Section 4.2.(a) until a Successor Capital Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Capital Guarantee Trustee and delivered to the Guarantor and the
resigning Capital Guarantee Trustee.
(c) The Capital Guarantee Trustee appointed to office shall hold office
until a Successor Capital Guarantee Trustee shall have been appointed or until
its removal or resignation. The Capital Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Capital Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Capital Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Capital Guarantee Trustee and delivered to the
Guarantor and the resigning Capital Guarantee Trustee.
(d) If no Successor Capital Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2. within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Capital
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Capital Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Capital Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders of Capital Securities the Guarantee Payments (without duplication of
amounts theretofore 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
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders of Capital
Securities or by causing the Trust to pay such amounts to the Holders of Capital
Securities.
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SECTION 5.2. [RESERVED].
SECTION 5.3. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this 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 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 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 Trust of any express or implied agreement,
covenant, term or condition relating to the Capital 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 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 (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sums payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders of Capital Securities to enforce, assert or exercise any right,
privilege, power or remedy conferred on such Holders pursuant to the terms of
the Capital 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 Capital
Securities;
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(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 of Capital Securities 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 Capital
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Capital Guarantee Trustee in
respect of this Capital Securities Guarantee Agreement or exercising any trust
or power conferred upon the Capital Guarantee Trustee under this Capital
Securities Guarantee Agreement.
(b) If the Guarantor fails to make any payments required by the Capital
Securities Guarantee Agreement, any Holder may institute 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 Trust, the Capital Guarantee Trustee or any other Person.
SECTION 5.6. GUARANTEE OF PAYMENT.
This Capital Securities Guarantee Agreement 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
of Capital Securities against the Trust in respect of any amounts paid to the
Holders of Capital Securities by the Guarantor under this Capital Securities
Guarantee Agreement; 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
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 of
Capital Securities and to pay over such amount to the Holders of Capital
Securities.
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SECTION 5.8. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust 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 5.4. hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Capital Securities remain outstanding, if there shall
have occurred an Event of Default or an event of default under the Declaration,
then (a) neither the Guarantor nor any of its subsidiaries shall declare or pay
any dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (i) dividends or distributions in common stock of the Guarantor, or
any declaration of a non-cash dividend in connection with the implementation of
a shareholder 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,
(ii) purchases of common stock of the Guarantor related to the rights under any
of the Guarantor's benefit plans for its directors, officers, or employees,
(iii) as a result of a reclassification of its capital stock for another class
of its capital stock, or (iv) the payment of dividends or distributions to the
Guarantor or to any of the Guarantor's direct or indirect subsidiaries); (b) the
Guarantor shall not make, or allow any of its subsidiaries to make, (i) any
payment of interest, principal or premium, if any, or repay, repurchase or
redeem any debt securities issued by the Guarantor which rank PARI PASSU with or
junior to the Debentures or (ii) any guarantee payments with respect to any
guarantee by the Guarantor of the debt securities of any subsidiary of the
Guarantor or any guarantee by any of the subsidiaries of the debt securities of
the Guarantor if such guarantee ranks PARI PASSU with or junior in interest to
the Debentures; provided, however, that notwithstanding the foregoing the
Company may make payments pursuant to its obligations under this Capital
Securities Guarantee; and (c) the Guarantor shall not redeem, purchase or
acquire less than all of the outstanding Debentures or any of the Capital
Securities.
SECTION 6.2. RANKING.
This Capital Securities Guarantee Agreement will constitute an
unsecured obligation of the Guarantor and will rank subordinate and junior in
right of payment to all other all Senior Debt, as defined in the Indenture, of
the Guarantor, to the extent and in the manner set
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forth in the Indenture, and the applicable provisions of the Indenture will
apply, in all relevant respects, to the obligations of the Guarantor hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Capital Securities Guarantee Agreement shall terminate upon (i)
full payment of the Redemption Price of all Capital Securities, (ii) the
distribution of the Debentures to the Holders of all Capital Securities or (iii)
full payment of the amounts payable in accordance with the Declaration upon
liquidation of the Trust. 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 of Capital Securities must restore
payment of any sums paid under the Capital Securities or under this Capital
Securities Guarantee. Notwithstanding anything contained herein to the contrary,
the obligations of the Guarantor set forth in Article VIII hereof shall survive
termination of this Capital Securities Guarantee Agreement or the earlier
resignation or removal of the Capital Guarantee Trustee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. 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 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,
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losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Capital Securities might properly be paid.
SECTION 8.2. INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage, liability, action, suit or claim of any kind and nature whatsoever
incurred by such Indemnified Person in connection with this Capital Securities
Guarantee Agreement, including, without limitation, 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 such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Capital Securities Guarantee
Agreement, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Capital Securities Guarantee Agreement and the
resignation or removal of the Capital Guarantee Trustee.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor of any undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
8.2.(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. 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 Capital Securities.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes that do not adversely affect the
rights of Holders of Capital Securities (in which case no consent of Holders
will be required), this Capital Securities Guarantee Agreement may only be
amended by an instrument in writing between the Guarantor and the Capital
Guarantee Trustee with the prior approval of the Holders of at
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least a majority in liquidation amount (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) of
all the outstanding Capital Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Trust Securities apply to
the giving of such approval. The Capital Guarantee Trustee may, but shall have
no obligation to, execute and deliver any amendment to this Capital Securities
Guarantee Agreement which affects the Capital Guarantee Trustee's rights, duties
or immunities hereunder or otherwise.
SECTION 9.3. LIMITATION OF LIABILITY.
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as the Capital Guarantee Trustee, in the
exercise of the powers and authority conferred and vested in it, (b) nothing
herein contained shall be construed as creating any liability on Wilmington
Trust Company, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the Guarantor and by any Person claiming by, through or
under the Guarantor, and (c) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Capital Guarantee
Trustee under this Capital Securities Guarantee Agreement.
SECTION 9.4. NOTICES.
All notices provided for in this Capital Securities Guarantee Agreement
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail as follows:
(a) If given to the Capital Guarantee Trustee, at the Capital Guarantee
Trustee's mailing address set forth below (or such other address as the Capital
Guarantee Trustee may give notice of to the Holders of Capital Securities):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Telecopy: (000) 000-0000
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(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 Capital Securities):
Xxxxxx Financial Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxx, Xxxxxxxxx 00000
Telecopy Number: (000) 000-0000
(c) If given to any Holder of Capital Securities, at the address set
forth in 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 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 9.5. BENEFIT.
This Capital Securities Guarantee Agreement is solely for the benefit
of the Holders of Capital Securities and, subject to Section 3.1.(a), is not
separately transferable from the Capital Securities.
SECTION 9.6. GOVERNING LAW.
This Capital Securities Guarantee Agreement and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
internal laws of the State of Minnesota and all rights and remedies shall be
governed by such laws without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
XXXXXX FINANCIAL CORPORATION
By
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Capital Guarantee Trustee
By
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Name:
Title:
