EXHIBIT 4(S)
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PREFERRED SECURITIES GUARANTEE AGREEMENT
RELIASTAR FINANCING II
Dated as of June 3, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
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DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions and Interpretation................................................ 1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.............................................. 5
Section 2.2. Lists of Holders of Trust Securities.......................................... 5
Section 2.3. Reports by Preferred Guarantee Trustee........................................ 6
Section 2.4. Periodic Reports to Preferred 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 PREFERRED GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of Preferred Guarantee Trustee.............................. 7
Section 3.2. Certain Rights of Preferred Guarantee Trustee................................. 9
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee......................... 11
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1. Preferred Guarantee Trustee; Eligibility...................................... 11
Section 4.2. Appointment, Removal and Resignation of Preferred Guarantee Trustee........... 12
ARTICLE V
GUARANTEE
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
Section 6.1. Limitation of Transactions.................................................... 15
Section 6.2. Ranking....................................................................... 15
ARTICLE VII
TERMINATION
Section 7.1. Termination................................................................... 16
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation................................................................... 16
Section 8.2. Indemnification............................................................... 17
ARTICLE IX
MISCELLANEOUS
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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PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT ("Preferred Securities
Guarantee Agreement"), dated as of June 3, 1997, is executed and delivered by
ReliaStar Financial Corp., a Delaware 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 Preferred Securities of
ReliaStar Financing II, a Delaware statutory business trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of June 3, 1997, 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 $125 million aggregate stated liquidation amount of Preferred
Securities designated the 8.10% Trust Originated Preferred Securities (the
"Preferred Securities");
WHEREAS, as incentive for such holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee Agreement, to pay to
the holders, from time to time, of Preferred 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
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee Agreement for the benefit of the holders, from time to time, of the
Preferred Securities.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION.
In this Preferred Securities Guarantee Agreement, unless the context
otherwise requires:
(a) capitalized terms used in this Preferred 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 Preferred Securities Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee Agreement" or
"this Preferred Securities Guarantee Agreement" are to this Preferred Securities
Guarantee Agreement as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee Agreement to
Articles and Sections are to Articles and Sections of this Preferred Securities
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee Agreement unless otherwise defined
in this Preferred 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.
"Common Securities" means the common securities of the Trust designated
8.10% Trust Originated Common Securities issued on the date hereof.
"Corporate Trust Office" means the principal office of the Preferred
Guarantee Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Preferred
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 Preferred
Securities.
"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.
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"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Preferred Securities Guarantee Agreement.
"Guarantee Payments" mean the following payments or distributions, without
duplication, with respect to the Preferred 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 Preferred Securities, to the extent the Trust shall have
received a payment of interest or principal on the Notes therefor from the
Guarantor, (ii) the Redemption Price, to the extent the Trust has received a
payment of interest or principal on the Notes from the Guarantor with respect to
any Preferred 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 Notes to the Holders in exchange for Preferred Securities as
provided in the Declaration or the redemption of all of the Preferred Securities
upon the maturity or redemption of the Notes).
"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 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 or agents of the Preferred
Guarantee Trustee.
"Indenture" means the Indenture dated as of March 29, 1996, among the Note
Issuer and Wilmington Trust Company, as trustee, as supplemented by the First
Supplemental Indenture dated March 29, 1996, the Second Supplemental Indenture
dated June 3, 1997, 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 Preferred
Securities to the date of payment to the extent the Trust shall have received
payments of interest or principal on the Notes 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 Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
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
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to the date upon which the voting percentages are determined) of all outstanding
Preferred Securities.
"Note Issuer" means the Guarantor in its capacity as issuer of the Notes.
"Notes" means the series of Notes to be issued by the Note Issuer under the
Indenture and acquired by the Trust.
"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 Preferred 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.
"Preferred Guarantee Trustee" means Wilmington Trust Company, until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee
Agreement, and thereafter means each such Successor Preferred Guarantee Trustee.
"Preferred Securities" has the meaning set forth in the preamble.
"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 Preferred
Guarantee Trustee, an officer in the Corporate Trust Office of the Preferred
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
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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, 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 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 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
Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred 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 Preferred 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 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 Preferred 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 Preferred 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 Preferred Guarantee
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Trustee by the Guarantor. 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 Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY PREFERRED GUARANTEE TRUSTEE.
Within 60 days after December 31 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the 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 PREFERRED GUARANTEE TRUSTEE.
The Guarantor shall provide to the Preferred 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 Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee Agreement that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of the Preferred Securities
may, by vote, on behalf of the Holders of all of the 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
Preferred 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 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 Preferred Securities, notices of all Events of
Default known to the Preferred Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, that, the Preferred
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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 of the Preferred Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of 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 as provided in Section 9.4., or a Responsible Officer of
the Preferred 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
Preferred 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
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF PREFERRED GUARANTEE TRUSTEE.
(a) This Preferred Securities Guarantee Agreement shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee Agreement to any Person except a Holder of
Preferred Securities 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 has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee Agreement
for the benefit of the Holders of the 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 Preferred Securities Guarantee Agreement, and no implied covenants shall be
read into this Preferred Securities Guarantee
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Agreement 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.), the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Preferred Securities Guarantee Agreement, and use the same degree
of care and skill in its exercise thereof, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee Agreement 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
Preferred Securities Guarantee Agreement, 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 Preferred
Securities Guarantee Agreement, and no implied covenants or
obligations shall be read into this Preferred Securities Guarantee
Agreement against the Preferred Guarantee Trustee; and
(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 Preferred 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 Preferred
Guarantee Trustee, the Preferred Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Preferred Securities Guarantee Agreement;
(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 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 Preferred Securities
Guarantee Agreement; and
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(iv) no provision of this Preferred Securities Guarantee Agreement
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 Preferred Securities Guarantee Agreement or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 3.2. CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1.:
(i) The Preferred 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
Preferred Securities Guarantee Agreement shall be sufficiently evidenced by
a Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee Agreement, 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 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, 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 Preferred Securities
Guarantee Agreement from any court of competent jurisdiction.
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(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee Agreement at the request or direction of any Holder of
Preferred Securities, unless such Holder shall have provided to the
Preferred Guarantee Trustee such security and indemnity acceptable 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 Preferred Securities Guarantee Agreement.
(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 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 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 Preferred Securities Guarantee Agreement, 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 Preferred Securities
Guarantee Agreement 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 (A) may
request instructions from the Holders of Preferred 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 Preferred Securities Guarantee Agreement shall be
deemed to impose any duty or obligation on the Preferred 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 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 Preferred Securities Guarantee Agreement
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 Preferred Securities Guarantee Agreement.
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 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 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.
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SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE
TRUSTEE.
(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 and
the resigning Preferred Guarantee Trustee.
(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 resignation, the resigning
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.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders of Preferred 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
Preferred Securities or by causing the Trust to pay such amounts to the Holders
of Preferred 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 Preferred
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 Preferred 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 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 Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (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 Notes or any extension of the maturity date of the Notes permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders of Preferred Securities to enforce, assert or exercise any right,
privilege, power or remedy conferred on such Holders pursuant to the terms of
the 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 Preferred
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 Preferred 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 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 Preferred Securities Guarantee Agreement or exercising any trust
or power conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee Agreement.
(b) If the Guarantor fails to make any payments required by the Preferred
Securities Guarantee Agreement, any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Preferred
Securities Guarantee Agreement, without first instituting a legal proceeding
against the Trust, the Preferred Guarantee Trustee or any other Person.
SECTION 5.6. GUARANTEE OF PAYMENT.
This Preferred 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
Preferred Securities against the Trust in respect of any amounts paid to the
Holders of Preferred Securities by the Guarantor under this Preferred 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
Preferred Securities Guarantee Agreement, if, at the time of any such payment,
any amounts are due and unpaid under this Preferred 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 Preferred Securities and to pay over such amount to the Holders of
Preferred 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 Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred 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 Preferred Securities remain outstanding, if there shall have
occurred an Event of Default or an event of default under the Declaration, then
(a) the Guarantor shall not declare or pay any dividend on, or make any
distribution with respect to, or redeem, purchase or acquire or make a
liquidation payment with respect to, any of its capital stock and (b) the
Guarantor shall not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Guarantor which rank pari passu with or junior to the Notes,
provided, that, the foregoing restriction in this Section 6.1. shall not apply
to any stock dividends paid by the Guarantor, where the dividend stock is the
same stock as that on which the dividend is being paid.
SECTION 6.2. RANKING.
This Preferred Securities Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor (other than any guarantee now
or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor), (ii) pari passu with the
most senior preferred or preference stock (including trust-related securities)
now or hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any preferred or preference stock of
any Affiliate of the Guarantor, and (iii) senior to the Guarantor's Common
Stock.
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ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Preferred Securities Guarantee Agreement shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) the
distribution of the Notes to the Holders of all Preferred Securities or (iii)
full payment of the amounts payable in accordance with the Declaration upon
liquidation of the Trust. Notwithstanding the foregoing, this Preferred
Securities Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred 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 Preferred Securities Guarantee
Agreement or the earlier resignation or removal of the Preferred 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 Preferred 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 Preferred 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,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
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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 or claim incurred by such Indemnified Person in connection
with this Preferred 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 Preferred 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
Preferred 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 Preferred
Securities Guarantee Agreement.
(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 Preferred 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 Preferred Securities.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes that do not adversely affect the rights
of Holders of Preferred Securities (in which case no consent of Holders will be
required), this Preferred Securities Guarantee Agreement may only be amended
with the prior approval of the Holders of at 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 Preferred
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 Preferred Guarantee Trustee may, but
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shall have no obligation to, execute and deliver any amendment to this Preferred
Securities Guarantee Agreement which affects the Preferred 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 Preferred 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 Preferred
Guarantee Trustee under this Preferred Securities Guarantee Agreement.
SECTION 9.4. NOTICES.
All notices provided for in this Preferred 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 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 Preferred
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 Preferred Securities):
ReliaStar Financial Corp.
00 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopy Number: (000) 000-0000
(c) If given to any Holder of Preferred 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 Preferred Securities Guarantee Agreement is solely for the benefit of
the Holders of Preferred Securities and, subject to Section 3.1.(a), is not
separately transferable from the Preferred Securities.
SECTION 9.6. GOVERNING LAW.
This Preferred Securities Guarantee Agreement and the rights of the parties
hereunder shall be governed by 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 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.
RELIASTAR FINANCIAL CORP.
By /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, General Counsel and
Secretary
WILMINGTON TRUST COMPANY,
as Preferred Guarantee Trustee
By /s/ Xxxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
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