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EXHIBIT 4.9
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QUIPS GUARANTEE AGREEMENT
Life Re Corporation
Dated as of March , 1998
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CROSS-REFERENCE TABLE*
Section of Trust Indenture Section of Capital
Act of 1939, as amended Securities Guarantee
Agreement
310(a)..................................................................4.1(a)
310(b)..................................................................4.1(c)
310(c)............................................................Inapplicable
311(a)..................................................................2.2(a)
311(b)..................................................................2.2(b)
311(c)............................................................Inapplicable
312(a)..................................................................2.2(a)
312(b)..................................................................2.2(b)
312(c)..................................................................2.2(c)
313.....................................................................2.3
314(a)..................................................................2.4
314(b)............................................................Inapplicable
314(c)..................................................................2.5
314(d)............................................................Inapplicable
314(e)..................................................................2.5
314(f)............................................................Inapplicable
315(a)..................................................................3.1(b)
315(b)..................................................................2.7
315(c)..................................................................3.1(c)
315(d)..................................................................3.1(d)
316(a)..........................................................5.4(a), 2.6
318(a)..................................................................2.1(c)
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* This Cross-Reference Table does not constitute part of this QUIPS
Guarantee Agreement and shall not affect the interpretation of any of its terms
or provisions.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.............................................. 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................................ 5
SECTION 2.2 Lists of Holders of Securities.............................................. 5
SECTION 2.3 Reports by the QUIPS Guarantee Trustee...................................... 6
SECTION 2.4 Periodic Reports to QUIPS 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.................................................... 7
SECTION 2.8 Conflicting Interests....................................................... 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
QUIPS GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the QUIPS Guarantee Trustee............................ 7
SECTION 3.2 Certain Rights of QUIPS Guarantee Trustee................................... 9
SECTION 3.3. Not Responsible for Recitals or Issuance of QUIPS Guarantee................. 11
ARTICLE IV
QUIPS GUARANTEE TRUSTEE
SECTION 4.1 QUIPS Guarantee Trustee; Eligibility........................................ 11
SECTION 4.2 Appointment, Removal and Resignation of QUIPS Guarantee Trustee............. 12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee................................................................... 13
SECTION 5.2 Waiver of Notice and Demand................................................. 13
SECTION 5.3 Obligations Not Affected.................................................... 13
SECTION 5.4 Rights of Holders........................................................... 14
SECTION 5.5 Guarantee of Payment........................................................ 15
SECTION 5.6 Subrogation................................................................. 15
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SECTION 5.7 Independent Obligations..................................................... 15
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.................................................. 15
SECTION 6.2 Ranking..................................................................... 16
ARTICLE VII
TERMINATION
SECTION 7.1 Termination................................................................. 17
ARTICLE VIII
COMPENSATION AND EXPENSES OF
QUIPS GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses of QUIPS Guarantee Trustee........................ 17
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation................................................................. 18
SECTION 9.2 Indemnification............................................................. 18
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns...................................................... 19
SECTION 10.2 Amendments.................................................................. 19
SECTION 10.3 Notices..................................................................... 19
SECTION 10.4 Benefit..................................................................... 20
SECTION 10.5 Governing Law............................................................... 20
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QUIPS GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "QUIPS Guarantee"), dated as of
March , 1998, is executed and delivered by Life Re Corporation, a Delaware
corporation (the "Guarantor"), and The Bank of New York, a New York banking
corporation, as indenture trustee (the "QUIPS Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the QUIPS (as
defined herein) of Life Re Capital Trust II, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of March , 1998 among the trustees of the
Issuer, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof ______ Quarterly Income Preferred Securities, having
an aggregate liquidation amount of $100,000,000, such Quarterly Income Preferred
Securities being designated the QUIPS (collectively the "QUIPS").
WHEREAS, as incentive for the Holders to purchase the QUIPS,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this QUIPS Guarantee, to pay to the Holders the Guarantee Payments
(as defined below). The Guarantor agrees to make certain other payments on the
terms and conditions set forth herein.
WHEREAS, the Guarantor is executing and delivering a guarantee
agreement (the "Common Trust Securities Guarantee"), with substantially
identical terms to this QUIPS Guarantee, for the benefit of the holders of the
Common Trust Securities (as defined herein), except that if an Event of Default
(as defined below) has occurred and is continuing, the rights of holders of the
Common Trust Securities to receive Guarantee Payments under the Common Trust
Securities Guarantee are subordinated, to the extent and in the manner set forth
in the Common Trust Securities Guarantee, to the rights of Holders to receive
Guarantee Payments under this QUIPS Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of QUIPS, which purchase the Guarantor hereby acknowledges shall benefit
the Guarantor, the Guarantor executes and delivers this QUIPS Guarantee for the
benefit of the Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this QUIPS Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this QUIPS Guarantee but
not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of
execution of this QUIPS Guarantee have the same
meaning when used in this QUIPS Guarantee unless
otherwise defined in this QUIPS Guarantee;
(c) a term defined anywhere in this QUIPS Guarantee has
the same meaning throughout;
(d) all references to "the QUIPS Guarantee" or "this
QUIPS Guarantee" are to this QUIPS Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this QUIPS Guarantee to Articles
and Sections are to Articles and Sections of this
QUIPS Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this QUIPS Guarantee,
unless otherwise defined in this QUIPS Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York or
Wilmington, Delaware, are authorized or required by law or executive order to
close.
"QUIPS Guarantee Trustee" means The Bank of New York, a New
York banking corporation, until a Successor QUIPS Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this QUIPS
Guarantee and thereafter means each such Successor QUIPS Guarantee Trustee.
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"Common Trust Securities" means the securities representing
common undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the QUIPS
Guarantee Trustee at which the corporate trust business of the QUIPS Guarantee
Trustee shall, at any particular time, be principally administered, which office
at the date of execution of this Agreement is located at 000 Xxxxxxx Xxxxxx,
00xx Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covered Person" means any Holder or beneficial owner of
QUIPS.
"Debentures" means the series of subordinated debt securities
of the Guarantor designated the ___% Junior Subordinated Deferrable Interest
Debentures due March , 2005 held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Guarantee Event of Default" has the meaning set forth in
Section 2.6.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the QUIPS, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such QUIPS, to the
extent that the Issuer has funds on hand legally available therefor at such
time, (ii) the final redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Final Redemption Price") with
respect to the QUIPS outstanding on the Maturity Date of the Debentures, to the
extent the Issuer has funds on hand legally available therefor at such time, and
(iii) upon a voluntary or involuntary dissolution and liquidation of the Issuer
(other than in connection with the distribution of Debentures to the Holders in
exchange for QUIPS as provided in the Declaration), the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and unpaid Distributions
on the QUIPS to the date of payment, to the extent the Issuer has funds on hand
legally available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer. If an Event
of Default has occurred and is continuing, no Guarantee Payments under the
Common Trust Securities Guarantee with respect to the Common Trust Securities or
any guarantee payment under any Other Common Trust Securities Guarantees shall
be made until the Holders shall be paid in full the Guarantee Payments to which
they are entitled under this QUIPS Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any QUIPS; provided, however, that, in determining
whether the holders of the requisite percentage of QUIPS 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 QUIPS Guarantee Trustee, any
Affiliate of the QUIPS Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the QUIPS Guarantee Trustee.
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"Indenture" means the Indenture dated as of March , 1998,
among the Guarantor (the "Debenture Issuer") and The Bank of New York, as
trustee, pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
"Majority in Liquidation Amount of the QUIPS" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of more than 50% of the
aggregate Liquidation Amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Distributions
to the date upon which the voting percentages are determined) of all QUIPS.
"Officers' Certificate" means, with respect to any person, a
certificate signed by two of the following: the Chairman, a Vice Chairman, the
Chief Executive Officer, the President, the Chief Financial Officer, a Vice
President (whether or not designated by a number or a word or words added before
or after such title), the Comptroller, the Secretary or an Assistant Secretary
of the Guarantor. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this QUIPS Guarantee (other than
pursuant to Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(c) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Other Common Trust Securities Guarantees" shall have the same
meaning as "Other Guarantees" in the Common Trust Securities Guarantee.
"Other Debentures" means all junior subordinated debentures
issued by the Guarantor from time to time and sold to trusts to be established
by the Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to securities similar to the QUIPS issued by other trusts
to be established by the Guarantor, in each case similar to the Issuer.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
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"Responsible Officer" means, with respect to the QUIPS
Guarantee Trustee, any officer within the Corporate Trust Office of the QUIPS
Guarantee Trustee, including any vice president, any assistant vice president,
any assistant secretary, any assistant treasurer, any trust officer, any senior
trust officer or other officer in the Corporate Trust Office of the QUIPS
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor QUIPS Guarantee Trustee" means a successor QUIPS
Guarantee Trustee possessing the qualifications to act as QUIPS Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Common Trust Securities and the
QUIPS, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This QUIPS Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this QUIPS Guarantee if
this QUIPS Guarantee were qualified under the Trust Indenture Act and shall, to
the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this QUIPS
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the QUIPS Guarantee
Trustee (unless the QUIPS Guarantee Trustee is otherwise the registrar of the
QUIPS) (i) on a quarterly basis on each regular record date for the Debentures,
a list, in such form as the QUIPS Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of such record
date, and (ii) at such other times as the QUIPS Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor, of such request, a
List of Holders as of a date no more than 15 days prior to the time such List of
Holders is given to the QUIPS 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
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given to the QUIPS Guarantee Trustee by the Guarantor. The QUIPS Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The QUIPS Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the QUIPS Guarantee Trustee
Within 60 days after ____ of each year, commencing , 199 , the
QUIPS Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313(a) of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The QUIPS
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to QUIPS Guarantee Trustee
The Guarantor shall provide to the QUIPS Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act provided that such compliance certificate shall be delivered on or
before 120 days after the end of each fiscal year of the Guarantor. Delivery of
such reports, information and documents to the QUIPS Guarantee Trustee is for
informational purposes only and the QUIPS Guarantee Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Guarantor's
compliance with any of its covenants hereunder (as to which the QUIPS Guarantee
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the QUIPS Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this QUIPS Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6 Guarantee Events of Default; Waiver
(a) An event of default under this QUIPS Guarantee will
occur upon the failure of the Guarantor to perform any of its payment or other
obligations hereunder (a "Guarantee Event of Default"); provided, however, that,
other than with respect to a default on any payment under this QUIPS Guarantee,
the Guarantor shall have received notice of default and shall not have cured
such default within 90 days after receipt of such notice.
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(b) The Holders of a Majority in Liquidation Amount of
QUIPS may, by vote, on behalf of all the Holders, waive any past Guarantee Event
of Default and its consequences. Upon such waiver, any such Guarantee Event of
Default shall cease to exist, and any Guarantee Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this QUIPS
Guarantee, but no such waiver shall extend to any subsequent or other default or
Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice
(a) The QUIPS Guarantee Trustee shall, within 90 days
after the occurrence of a default with respect to this QUIPS Guarantee, mail by
first class postage prepaid, to all Holders, notices of all defaults actually
known to a Responsible Officer of the QUIPS Guarantee Trustee, unless such
defaults have been cured before the giving of such notice; provided, however,
that, except in the case of default in the payment of any Guarantee Payment, the
QUIPS Guarantee Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the QUIPS Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders.
(b) The QUIPS Guarantee Trustee shall not be deemed to
have knowledge of any Guarantee Event of Default unless the QUIPS Guarantee
Trustee shall have received written notice, or a Responsible Officer charged
with the administration of the Declaration shall have obtained actual knowledge,
of such Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described
in this QUIPS Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
QUIPS GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the QUIPS Guarantee Trustee
(a) This QUIPS Guarantee shall be held by the QUIPS
Guarantee Trustee for the benefit of the Holders, and the QUIPS Guarantee
Trustee shall not transfer this QUIPS Guarantee to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(b) or to a Successor QUIPS
Guarantee Trustee on acceptance by such Successor QUIPS Guarantee Trustee of its
appointment to act as Successor QUIPS Guarantee Trustee. The right, title and
interest of the QUIPS Guarantee Trustee shall automatically vest in any
Successor QUIPS Guarantee Trustee, and such vesting and succession of title
shall be effective
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whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor QUIPS Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer has occurred and is continuing, the QUIPS Guarantee Trustee
shall enforce this QUIPS Guarantee for the benefit of the Holders.
(c) The QUIPS 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 QUIPS Guarantee, and no implied covenants shall be read into this
QUIPS Guarantee against the QUIPS Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer, the QUIPS Guarantee Trustee shall
exercise such of the rights and powers vested in it by this QUIPS Guarantee, 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 QUIPS Guarantee shall be
construed to relieve the QUIPS 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 QUIPS
Guarantee Trustee shall be determined solely by the express
provisions of this QUIPS Guarantee, and the QUIPS Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
QUIPS Guarantee, and no implied covenants or obligations shall
be read into this QUIPS Guarantee against the QUIPS Guarantee
Trustee; and
(B) in the absence of bad faith on the part of
the QUIPS Guarantee Trustee, the QUIPS 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 QUIPS Guarantee
Trustee and conforming to the requirements of this QUIPS
Guarantee; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the QUIPS Guarantee Trustee, the
QUIPS Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this QUIPS Guarantee;
(ii) the QUIPS Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the
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QUIPS Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the QUIPS 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 a Majority in
Liquidation Amount of the QUIPS relating to the time, method and place
of conducting any proceeding for any remedy available to the QUIPS
Guarantee Trustee, or exercising any trust or power conferred upon the
QUIPS Guarantee Trustee under this QUIPS Guarantee; and
(iv) no provision of this QUIPS Guarantee shall require
the QUIPS 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
QUIPS 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 QUIPS Guarantee or indemnity, reasonably
satisfactory to the QUIPS Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of QUIPS Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The QUIPS Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining from acting, upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this QUIPS Guarantee may be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this QUIPS
Guarantee, the QUIPS Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting
any action hereunder, the QUIPS Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor.
(iv) The QUIPS 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 QUIPS Guarantee Trustee may consult with counsel
of its selection, and the advice or opinion of such counsel with
respect to legal matters, shall be full and
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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 QUIPS Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this QUIPS
Guarantee from any court of competent jurisdiction.
(vi) The QUIPS Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
QUIPS Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the QUIPS Guarantee Trustee such security
and indemnity, reasonably satisfactory to the QUIPS Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and
the expenses of the QUIPS Guarantee Trustee's agents, nominees or
custodians) 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 QUIPS Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
QUIPS Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
QUIPS Guarantee.
(vii) The QUIPS 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
QUIPS Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The QUIPS Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the QUIPS 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 QUIPS Guarantee Trustee or
its agents hereunder shall bind the Holders, and the signature of the
QUIPS 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 QUIPS Guarantee Trustee to so act
or as to its compliance with any of the terms and provisions of this
QUIPS Guarantee, both of which shall be conclusively evidenced by the
QUIPS Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this QUIPS
Guarantee the QUIPS Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the QUIPS Guarantee Trustee (i) may
request instructions from the Holders of a Majority in
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Liquidation Amount of the QUIPS, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(xi) The QUIPS Guarantee Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
QUIPS Guarantee.
(b) No provision of this QUIPS Guarantee shall be deemed
to impose any duty or obligation on the QUIPS Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
QUIPS 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
QUIPS Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of QUIPS
Guarantee
The recitals contained in this QUIPS Guarantee shall be taken
as the statements of the Guarantor, and the QUIPS Guarantee Trustee does not
assume any responsibility for their correctness. The QUIPS Guarantee Trustee
makes no representation as to the validity or sufficiency of this QUIPS
Guarantee.
ARTICLE IV
QUIPS GUARANTEE TRUSTEE
SECTION 4.1 QUIPS Guarantee Trustee; Eligibility
(a) There shall at all times be a QUIPS Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes 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
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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 QUIPS Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the QUIPS Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the QUIPS Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the QUIPS Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act, subject
to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of QUIPS
Guarantee Trustee
(a) Subject to Section 4.2(b), the QUIPS Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during an Guarantee Event of Default.
(b) The QUIPS Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor QUIPS Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor QUIPS Guarantee Trustee and delivered to the Guarantor.
(c) The QUIPS Guarantee Trustee shall hold office until a
Successor QUIP Guarantee Trustee shall have been appointed or until its removal
or resignation. The QUIPS Guarantee Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument in writing executed by the
QUIPS Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor QUIPS Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor QUIPS Guarantee Trustee and delivered to the Guarantor and the
resigning QUIPS Guarantee Trustee.
(d) If no Successor QUIPS Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the QUIPS
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor QUIPS Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem proper,
appoint a Successor QUIPS Guarantee Trustee.
(e) No QUIPS Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor QUIPS Guarantee Trustee.
(f) Upon termination of this QUIPS Guarantee or removal
or resignation of the QUIPS Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the
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QUIPS Guarantee Trustee all amounts due to the QUIPS Guarantee Trustee accrued
to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this QUIPS
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this QUIPS Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the QUIPS to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer
of all or any portion of the Distributions, Final Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the QUIPS or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the QUIPS (other than an extension of time for
payment of Distributions, Final Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the
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Holders pursuant to the terms of the QUIPS, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
QUIPS;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the Guarantor
with respect to the Guarantee Payments shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of
the QUIPS have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the QUIPS Guarantee Trustee in respect of
this QUIPS Guarantee or exercising any trust or power conferred upon the QUIPS
Guarantee Trustee under this QUIPS Guarantee; provided however, that (subject to
Section 3.1) the QUIPS Guarantee Trustee shall have the right to decline to
follow any such direction if the QUIPS Guarantee Trustee shall determine that
the actions so directed would be unjustly prejudicial to the Holders not taking
part in such direction or if the QUIPS Guarantee Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully be
taken or if the QUIPS Guarantee Trustee in good faith by its board of directors
or trustees, executive committees or a trust committee or directors or trustees
and/or Responsible Officers shall determine that the action or proceedings so
directed would involve the QUIPS Guarantee Trustee in personal liability.
(b) If the QUIPS Guarantee Trustee fails to enforce such
QUIPS Guarantee, such Holder may institute a legal proceeding directly against
the Guarantor to enforce the QUIPS Guarantee Trustee's rights under this QUIPS
Guarantee, without first instituting a legal proceeding against the Issuer, the
QUIPS Guarantee Trustee or any other person or entity. The Guarantor waives any
right or remedy to require that any action be brought first against the Issuer
or any other person or entity before proceeding directly against the Guarantor.
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SECTION 5.5 Guarantee of Payment
This QUIPS Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this QUIPS Guarantee; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this QUIPS Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this QUIPS Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the QUIPS, and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this QUIPS Guarantee notwithstanding
the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any QUIPS remain outstanding, the Guarantor shall
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Guarantor's
capital stock (which includes common and preferred stock), (ii) make any payment
of principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Guarantor (including any Other Debentures) that rank
pari passu with or junior in right of payment to the Debentures or (iii) make
any guarantee payments with respect to any guarantee by the Guarantor of any
securities of any subsidiary of the Guarantor (including Other Guarantees) if
such guarantee ranks pari passu or junior in right of payment to the Debentures
(other than in the case of clauses (i), (ii) and (iii), (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the QUIPS
Guarantee, (d) as a result of a reclassification of the
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Guarantor's capital stock solely into shares of one or more classes or series of
the Guarantor's Capital Stock or the exchange or the conversion of one class or
series of the Guarantor's capital stock for another class or series of the
Guarantor's capital stock, (e) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged and (f)
purchases of the Guarantor's common stock in connection with the satisfaction by
the Guarantor of its obligations (including purchases related to the issuance of
such common stock or rights) under any of the Guarantor's benefit plans for its
and its subsidiaries' directors, officers or employees or any of the Guarantor's
dividend reinvestment plans) if at such time (x) a Guarantee Event of Default or
an Event of Default (as defined in the Indenture) shall have occurred and be
continuing, (y) if such Debentures are held by the Property Trustee, the
Guarantor shall be in default with respect to its payment of any obligations
under this QUIPS Guarantee or (z) the Guarantor shall have given notice of its
election of the exercise of its right to extend the interest payment period
pursuant to Section 16.01 of the Indenture and any such extension shall have
commenced and not yet terminated.
SECTION 6.2 Ranking
This QUIPS Guarantee will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of payment to
Senior Indebtedness (as defined in the Indenture), to the same extent and in the
same manner that the Debentures are subordinated to all present and future
Senior Indebtedness pursuant to the Indenture, it being understood that the
terms of Article XV of the Indenture shall apply to the obligations of the
Guarantor under this QUIPS Guarantee as if (x) such Article XV were set forth
herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XV, and pari passu with the Debentures
and the Other Debentures.
The right of the Guarantor to participate in any distribution of assets
of any of its subsidiaries upon any such subsidiary's liquidation or
reorganization or otherwise is subject to the prior claims of creditors of that
subsidiary, except to the extent the Guarantor may itself be recognized as a
creditor of that subsidiary. Accordingly, the Guarantor's obligations under this
QUIPS Guarantee will be effectively subordinated to all existing and future
liabilities of the Guarantor's subsidiaries, and claimants should look only to
the assets of the Guarantor for payments thereunder. This QUIPS Guarantee does
not limit the incurrence or issuance of other secured or unsecured debt of the
Guarantor, including Senior Indebtedness of the Guarantor, under any indenture
that the Guarantor may enter into in the future or otherwise.
If a Declaration Event of Default has occurred and is continuing, the
rights of holders of the Common Trust Securities of the Issuer to receive
payments under the Common Trust Securities Guarantee are subordinated to the
rights of Holders of QUIPS to receive Guarantee Payments.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This QUIPS Guarantee shall terminate and be of no further
force and effect (i) upon full payment of the Final Redemption Price (as defined
in the Declaration) of all QUIPS or (ii) upon liquidation of the Issuer, the
full payment of the amounts payable in accordance with the Declaration or the
distribution of the Debentures to the Holders of all of the QUIPS or payment of
the applicable Put price in respect of the Debentures. Notwithstanding the
foregoing, this QUIPS Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the QUIPS or under this QUIPS Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
QUIPS GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses of QUIPS Guarantee Trustee
The Guarantor covenants and agrees to pay to the QUIPS
Guarantee Trustee from time to time, and the QUIPS Guarantee Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Guarantor and the QUIPS Guarantee Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Guarantor will pay or reimburse the QUIPS Guarantee Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the QUIPS Guarantee Trustee in accordance with any of the provisions of
this QUIPS Guarantee (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Guarantor also covenants to indemnify each of the
QUIPS Guarantee Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any and all loss, damage, claim, liability or
expense including taxes (other than taxes based on the income of the QUIPS
Guarantee Trustee) incurred without negligence or bad faith on the part of the
QUIPS Guarantee Trustee and arising out of or in connection with the acceptance
or administration of this guarantee, including the costs and expenses of
defending itself against any claim of liability in the premises. The obligations
of the Guarantor under this Article VIII to compensate and indemnify the QUIPS
Guarantee Trustee and to pay or reimburse the QUIPS Guarantee Trustee for
expenses, disbursements and advances shall be secured by a lien prior to that of
the QUIPS upon all property and funds held or collected by the QUIPS Guarantee
Trustee as such, except funds held in trust for the benefit of the holders of
particular QUIPS.
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The provisions of this Article shall survive the termination
of this QUIPS Guarantee.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 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 QUIPS
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
QUIPS Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders might properly be paid.
SECTION 9.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 9.2 shall survive the termination of this
QUIPS Guarantee.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
All guarantees and agreements contained in this QUIPS
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding. Except in connection with any merger or consolidation of the
Guarantor with or into another entity or any sale, transfer or lease of the
Guarantor's assets to another entity, in each case, to the extent permitted
under the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this QUIPS Guarantee without the prior approval of the Holders
of at least a Majority in Liquidation Amount of the QUIPS.
SECTION 10.2 Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no consent of Holders will
be required), this QUIPS Guarantee may only be amended with the prior approval
of the Holders of a Majority in Liquidation Amount of the QUIPS (including the
stated amount that would be paid on redemption, repurchase, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined). The provisions of the Declaration with
respect to consents to amendments thereof (whether at a meeting or otherwise)
shall apply to the giving of such approval.
SECTION 10.3 Notices
All notices provided for in this QUIPS Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of any of the
Administrators at the Issuer's mailing address set forth below (or such other
address as the Issuer may give notice of to the Holders and the QUIPS Guarantee
Trustee):
Life Re Capital Trust II
c/o Life Re Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: W. Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
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(b) If given to the QUIPS Guarantee Trustee, at the QUIPS
Guarantee Trustee's mailing address set forth below (or such other address as
the QUIPS Guarantee Trustee may give notice of to the Holders and the Issuer):
The Bank of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Telecopy: (000) 000-0000
(c) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the QUIPS and the QUIPS Guarantee Trustee):
Life Re Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: W. Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
(d) If given to any Holder, at the address set forth on
the books and records of the Issuer.
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 10.4 Benefit
This QUIPS Guarantee is solely for the benefit of the Holders
and, subject to Section 3.1(a), is not separately transferable from the QUIPS.
SECTION 10.5 Governing Law
THIS QUIPS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
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THIS QUIPS GUARANTEE is executed as of the day and year first
above written.
LIFE RE CORPORATION, as Guarantor
By: _____________________________________
Name:
Title:
THE BANK OF NEW YORK, as Capital
Securities Guarantee Trustee
By: _____________________________________
Name:
Title:
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