EXHIBIT 4.6
DRAFT 11/16/95
GUARANTEE AGREEMENT
Between
The Xxxxx Company
(as Guarantor)
and
The First National Bank of Chicago
(as Trustee)
dated as of
______________, 1995
CROSS-REFERENCE TABLE/*/
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
---------------------------- ----------------
310(a)...................... 4.1(a)
310(b)...................... 4.1(c), 2.8
310(c)...................... Inapplicable
311(a)...................... 2.1(b), 2.2(b)
311(b)...................... 2.1(b), 2.2(b)
311(c)...................... Inapplicable
312(a)...................... 2.2(a)
312(b)...................... 2.2(b)
313......................... 2.3
314(a)...................... 2.4
314(b)...................... Inapplicable
314(c)...................... 2.5
314(d)...................... Inapplicable
314(e)...................... 1.1, 2.5, 3.2
314(f)...................... 2.1, 3.2
315(a)...................... 3.1(d)
315(b)...................... 2.7
315(c)...................... 3.1
315(d)...................... 3.1(d)
316(a)...................... 5.4(iii), 2.6
316(b)...................... 5.1
316(c)...................... 2.2
317(a)...................... Inapplicable
317(b)...................... Inapplicable
318(a)...................... 2.1(b)
318(b)...................... 2.1
318(c)...................... 2.1(a)
/*/ This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
TABLE OF CONTENTS
ARTICLE I .................................................... 1
DEFINITIONS
SECTION 1.1. Definitions..................................... 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application................ 4
SECTION 2.2. Lists of Holders of Securities.................. 4
SECTION 2.3. Reports by the Trustee.......................... 5
SECTION 2.4. Periodic Reports to Trustee..................... 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent 5
SECTION 2.6. Event of Default; Notice........................ 5
SECTION 2.7. Conflicting Interests........................... 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.1. Powers and Duties of the Trustee. .............. 6
SECTION 3.2. Certain Rights of Trustee. ..................... 7
ARTICLE IV
TRUSTEE
SECTION 4.1. Trustee; Eligibility. .......................... 9
SECTION 4.2. Appointment, Removal and Resignation of Trustee. 10
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee....................................... 11
SECTION 5.2. Waiver of Notice and Demand..................... 11
SECTION 5.3. Obligations Not Affected........................ 11
SECTION 5.4. Rights of Holders............................... 12
SECTION 5.5. Guarantee of Payment............................ 12
SECTION 5.6. Subrogation..................................... 12
SECTION 5.7. Independent Obligations......................... 13
ARTICLE VI
SUBORDINATION
SECTION 6.1. Subordination................................... 13
ARTICLE VII
TERMINATION
SECTION 7.1. Termination..................................... 13
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.......................... 13
SECTION 8.2. Amendments...................................... 14
SECTION 8.3. Notices......................................... 14
SECTION 8.4. Benefit......................................... 15
SECTION 8.5. Interpretation.................................. 15
SECTION 8.6. Governing Law................................... 16
ii
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
_________, 1995, is executed and delivered by The Xxxxx Company, a Maryland
corporation (the "Guarantor"), and The First National Bank of Chicago, as
trustee (the "Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of Xxxxx Capital, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (as
amended or supplemented from time to time in accordance with its terms, the
"Trust Agreement"), dated as of __________, 1995, among the Trustees of the
Issuer named therein, The Xxxxx Company, as Depositor, and the Holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing as of the date hereof $____________ aggregate liquidation
amount of its ___% Cumulative Quarterly Income Preferred Securities, including
up to $________ aggregate liquidation amount of Preferred Securities subject to
an over-allotment option (the "Preferred Securities") representing undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined in the
Trust Agreement) of the Guarantor which will be deposited with the Issuer as
trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder thereof, which payment the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
---------
DEFINITIONS
-----------
SECTION 1.1. Definitions.
-----------
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person (as defined herein) means any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"corporation" means a corporation, association, company, including
without limitation, a limited liability company, joint-stock company or
business trust.
"Event of Default" means a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the Issuer:
(i) any accrued and unpaid Distributions that are required to be paid on
such Preferred Securities, but if and only to the extent the Property
Trustee of the Issuer has available in the Payment Account funds sufficient
to make such payment, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price"),
with respect to the Preferred Securities called for redemption by the
Issuer, but if and only to the extent that the Property Trustee of the
Issuer has available in the Payment Account funds sufficient to make such
payment, and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Issuer (other than in connection with a redemption of
all of the Preferred Securities), 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, but if and only to the extent
the Issuer has funds sufficient to make such payment, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
"Guarantor" means The Xxxxx Company and its successors, assigns,
receivers, trustees and representatives as provided in Article VIII
hereunder.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that in
determining
2
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.
"Indenture" means the Indenture dated as of ____________, 1995,
between the Guarantor (the "Debenture Issuer") and The First National Bank
of Chicago, as trustee, as amended and supplemented from time to time in
accordance with its terms.
"Majority in liquidation amount of the Preferred Securities" means a
vote by Holder(s) of Preferred Securities, of at least a majority in
liquidation amount of all outstanding Preferred Securities.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the Chief Executive Officer, the President, a
Vice President or the Treasurer of the Guarantor and (ii) the Secretary or
an Assistant Secretary of the Guarantor, and delivered to the Trustee;
provided, however, that such certificate may be signed by two of the
-------- -------
officers or directors listed in clause (i) above in lieu of being signed by
one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Guarantee Agreement shall include:
(a) a statement that each officer or director signing the
Officers' Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer or director in rendering
the Officers' Certificate;
(c) a statement that each such officer or director has made such
examination or investigation as, in such officer's or director's
opinion, is necessary to enable such officer or director to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
officer or director, such condition or covenant has been complied
with.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
3
"Responsible Officer" means, with respect to the Trustee, any vice-
president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Corporate Trust
Department of the 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 Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
--------
however, that in the event the Trust Indenture Act of 1939 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.
"Trustee" means The First National Bank of Chicago until a Successor
Trustee has been appointed and has accepted such appointment pursuant to
the terms of this Guarantee Agreement and thereafter means each such
Successor Trustee.
ARTICLE II
----------
TRUST INDENTURE ACT
-------------------
SECTION 2.1. Trust Indenture Act; Application.
--------------------------------
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 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 furnish or cause to be furnished to the
Trustee (a) semiannually, not later than February 15 and August 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of Holders") as of a
date not more than 15 days prior to the
4
delivery thereof, and (b) at such other times as the Trustee may reasonably
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished; 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 Trustee by the Guarantor. The
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The 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 the Trustee.
----------------------
Within 60 days after July 1 of each year, the 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 Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Trustee.
---------------------------
The Guarantor shall provide to the Trustee such documents, reports
and information as are required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Trustee such evidence of
compliance with any conditions precedent provided for in this 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. Event of Default; Notice.
------------------------
The Trustee shall, within 90 days after the occurrence of an Event
of Default, transmit by mail, first class postage prepaid, to the Holders of the
Preferred Securities, notices of all Events of Default known to the Trustee,
unless such defaults have been cured before the giving of such notice, provided
that the 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 Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Preferred Securities.
SECTION 2.7. Conflicting Interests.
---------------------
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
5
ARTICLE III
-----------
POWERS, DUTIES AND RIGHTS OF TRUSTEE
------------------------------------
SECTION 3.1. Powers and Duties of the Trustee.
--------------------------------
(a) This Guarantee Agreement shall be held by the Trustee for the
benefit of the Holders of the Preferred Securities, and the Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Trustee on acceptance by such Successor Trustee of its appointment to
act as Successor Trustee. The right, title and interest of the Trustee shall
automatically vest in any Successor 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 Trustee.
(b) If an Event of Default has occurred and is continuing, the Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders of the
Preferred Securities.
(c) The 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
Guarantee Agreement, and no implied covenants against the Trustee shall be read
into this Guarantee Agreement. In case an Event of Default has occurred, the
Trustee shall exercise such of the rights and powers vested in it by this
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 Guarantee Agreement shall be construed to
relieve the 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 Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
6
(B) in the absence of bad faith on the part of the Trustee,
the 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 Trustee and conforming to
the requirements of this 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 Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the 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
Preferred Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement shall require the
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 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 Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.2. Certain Rights of Trustee.
-------------------------
(a) Subject to the provisions of Section 3.1:
(i) the 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;
7
(ii) any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
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 Trustee may consult with counsel of its choice, 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;
and the Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have provided
to the Trustee such adequate security and indemnity as would satisfy a
reasonable person in the position of the 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 Trustee;
provided that nothing contained in this Section 3.2(a)(v) shall be taken to
relieve the Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Guarantee
Agreement;
(vi) the 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 Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
8
(vii) the 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 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; and
(viii) whenever in the administration of this Guarantee
Agreement the Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Trustee (i) may request instructions from the Holders of the
Preferred Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and (iii)
shall be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the 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 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 Trustee shall be construed to be a duty.
ARTICLE IV
----------
TRUSTEE
-------
SECTION 4.1. Trustee; Eligibility.
--------------------
(a) There shall at all times be a 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
9
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 Trustee shall cease to be eligible to so act
under Section 4.1(a), the Trustee shall immediately resign in the manner and
with the effect set out in Section 4.2(d).
(c) The Trustee and the Guarantor shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of Trustee.
-----------------------------------------------
(a) Subject to Section 4.2(c), the Trustee may be appointed or removed
without cause at any time by the Guarantor.
(b) Subject to Section 4.2(c), the Trustee may be removed at any time
by Act of the Holders of a Majority in liquidation amount of the Preferred
Securities, delivered to the Trustee and to the Guarantor.
(c) The Trustee shall not be removed until a Successor Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Trustee and delivered to the Guarantor.
(d) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or
registration. The Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Trustee and delivered to the
Guarantor and the resigning Trustee.
(e) If no Successor 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 Trustee may petition
any court of competent jurisdiction for appointment of a Successor Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Trustee.
10
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 which the Issuer may have or assert, other than
the defense of payment. The Guarantor's obligation to make a Guarantee Payment
may be satisfied, in the Guarantor's sole discretion, 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 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 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 obligation of the Guarantor to make the Guarantee Payments
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, 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 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 Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
11
(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 Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor other than the
defense of payment, it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
-----------------
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Trustee to be held for the benefit of the
Holders of the Preferred Securities; (ii) the Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders of the Preferred Securities;
(iii) the Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the Trustee under this
Guarantee Agreement; and (iv) any Holder of the Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer or any other person or entity.
SECTION 5.5. Guarantee of Payment.
--------------------
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication).
SECTION 5.6. Subrogation.
-----------
The Guarantor shall be subrogated to any and all rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to the Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Guarantee Agreement unless and until all of the Preferred Securities are paid in
full and are no longer outstanding. 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.
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SECTION 5.7. Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer 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 Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
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SUBORDINATION
-------------
SECTION 6.1. Subordination.
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This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all liabilities of the Guarantor (including the Debentures but excluding
liabilities that may be made pari passu with or subordinate to the Guarantee
---- -----
Payments expressly by their terms) and (ii) senior to the Guarantor's Series A
Convertible Preferred Stock, liquidation value $50.00 per share, and the
Guarantor's common stock.
ARTICLE VII
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TERMINATION
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SECTION 7.1. Termination.
-----------
This Guarantee Agreement shall terminate and be of no further force
and effect upon: (i) full payment of the Redemption Price of all Preferred
Securities, (ii) the distribution of Debentures to Holders of Preferred
Securities in accordance with the Trust Agreement in liquidation of the Issuer
or (iii) upon full payment of the amounts payable in accordance with the Trust
Agreement upon liquidation of the Issuer. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
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MISCELLANEOUS
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SECTION 8.1. Successors and Assigns.
----------------------
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a
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consolidation, merger or sale involving the Guarantor that is permitted under
Article Eight of the Indenture, the Guarantor shall not assign its obligations
hereunder.
SECTION 8.2. Amendments.
----------
Except with respect to any changes which do not adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Guarantee Agreement may only be amended with the prior approval of the
Holders of not less than a Majority in liquidation amount of the Preferred
Securities. The provisions of Article Six of the Trust Agreement concerning
meetings of Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
-------
Any notice, request or other communication required or permitted to
be given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders of the
Preferred Securities:
The Xxxxx Company
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer, with
a copy to the General Counsel
(b) if given to the Issuer, in care of the Trustee, at the Issuer's
(and the Trustee's) address set forth below or such other address as the
Trustee on behalf of the Issuer may give notice of to the Holders of the
Preferred Securities:
Xxxxx Capital
c/o The Xxxxx Company
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer, with
a copy to the General Counsel
with a copy to:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Services Division
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(c) if given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address 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 8.4. Benefit.
-------
This Guarantee Agreement is solely for the benefit of the Holders
of the Preferred Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
SECTION 8.5. Interpretation.
--------------
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
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SECTION 8.6. Governing Law.
-------------
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
THE XXXXX COMPANY, as Guarantor
By:
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-----------------------------------------
Name:
Title:
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