1
EXHIBIT 4.5
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT
KBK CAPITAL TRUST I
DATED AS OF ____________, 1998
2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Definitions and Interpretation . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.1 Trust Indenture Act; Application . . . . . . . . . . . 5
Section 2.2 Lists of Holders of Securities . . . . . . . . . . . . 5
Section 2.3 Reports by the Trust Preferred Guarantee Trustee . . . 6
Section 2.4 Periodic Reports to Trust Preferred Guarantee Trustee . 6
Section 2.5 Evidence of Compliance with Conditions Precedent . . . 6
Section 2.6 Guarantee Events of Default; Waiver . . . . . . . . . . 6
Section 2.7 Guarantee Event of Default; Notice . . . . . . . . . . 7
Section 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE TRUST PREFERRED
GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1 Powers and Duties of the Trust Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.2 Certain Rights of Trust Preferred Guarantee Trustee . . 9
Section 3.3 Not Responsible for Recitals or Issuance of Trust
Preferred
Securities Guarantee. . . . . . . . . . . . . . . . . . 11
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . 12
Section 4.1 Trust Preferred Guarantee Trustee; Eligibility . . . . 12
Section 4.2 Appointment, Removal and Resignation of Trust Preferred
Guarantee Trustee . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . 13
Section 5.3 Obligations Not Affected . . . . . . . . . . . . . . . 14
Section 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . 15
Section 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . 15
Section 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.7 Independent Obligations . . . . . . . . . . . . . . . . 16
- i -
3
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING . . . . . . . . . . . . . . . . 16
Section 6.1 Limitation of Transactions . . . . . . . . . . . . . . 16
Section 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII
CERTAIN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 8.1 Payment of Additional Sums . . . . . . . . . . . . . . 17
Section 8.2 Continued Ownership of Trust Common Securities, Etc. . 17
ARTICLE IX
INDEMNIFICATION, ETC. . . . . . . . . . . . . . . . . . . . . . . . 18
Section 9.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . 18
Section 9.2 Fees, Expenses and Indemnification . . . . . . . . . . 18
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.1 Successors and Assigns . . . . . . . . . . . . . . . . . 19
Section 10.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.3 Holding Company Formation, Consolidations and Mergers . 19
Section 10.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.5 Benefit . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 10.6 Governing Law . . . . . . . . . . . . . . . . . . . . . 21
- ii -
4
KBK CAPITAL CORPORATION
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT
This Trust Preferred Securities Guarantee Agreement (the "Trust
Preferred Securities Guarantee"), dated as of __________, 1998, is executed and
delivered by KBK Capital Corporation, a Delaware corporation (the "Guarantor"),
and The First National Bank of Chicago, a national banking association, as
trustee (the "Trust Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust Preferred Securities
(as defined herein) of KBK Capital Trust I, a Delaware statutory business trust
(the "Issuer").
R E C I T A L S:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of __________, 1998, among the trustees of the
Issuer named therein, KBK Capital Corporation, as sponsor (the "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 _________ Trust
Preferred Securities, having an aggregate Liquidation Amount of $___________,
designated the ___% Trust Preferred Securities, which amounts exclude
__________ ___% Trust Preferred Securities having an aggregate Liquidation
Amount of $____________ that are subject to purchase pursuant to an
underwriters' over-allotment option (all ___% Trust Preferred Securities issued
by the Issuer, including any issued in connection with such over-allotment
option, are referred to herein collectively as the "Trust Preferred
Securities"); and
WHEREAS, as an incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Trust Preferred Securities Guarantee, to
pay to the Holders of the Trust Preferred Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Trust Common Securities Guarantee"), with
substantially identical terms to this Trust Preferred Securities Guarantee for
the benefit of the holders of the Trust Common Securities (as defined herein),
except that if the Guarantor is in default on any of its obligations under the
Trust Preferred Securities Guarantee or the Subordinated Indenture, the rights
of holders of the Trust Common Securities to receive "Guarantee Payments" (as
such term is defined in the Trust Common Securities Guarantee) under the Trust
Common Securities Guarantee are subordinated, to the extent and in the manner
set forth in the Trust Common Securities Guarantee, to the rights of Holders of
Trust Preferred Securities to receive Guarantee Payments under this Trust
Preferred Securities Guarantee;
5
NOW, THEREFORE, in consideration of the purchase by each Holder
of Trust Preferred Securities, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Trust
Preferred Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation.
In this Trust Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Trust Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) Capitalized terms used in this Trust Preferred Securities
Guarantee but not otherwise defined herein shall have the meanings assigned to
them in the Declaration or the Subordinated Indenture, as the case may be;
(c) A term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(d) All references to "the Trust Preferred Securities Guarantee" or
"this Trust Preferred Securities Guarantee" are to this Trust Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(e) All references in this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(f) A term defined in the Trust Indenture Act has the same meaning
when used in this Trust Preferred Securities Guarantee, unless otherwise
defined in this Trust Preferred Securities 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; provided, however, that an Affiliate of the Guarantor shall not be
deemed to include the Issuer.
"Business Day" means any day other than a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to close or a day on which the Corporate Trust Office is closed
for business.
- 2 -
6
"Corporate Trust Office" means the principal corporate trust
office of the Trust Preferred Guarantee Trustee in Chicago, Illinois, which
office at the date hereof is located at One First National Plaza, Suite 0126.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Guarantee Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Trust Preferred Securities
Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust Preferred
Securities, 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 Trust Preferred Securities, to the extent the Issuer has funds
legally available therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price"), to the extent the Issuer has funds legally available
therefor at such time, with respect to any Trust Preferred Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
termination, dissolution, winding up or liquidation of the Issuer (other than
in connection with the distribution of Subordinated Debentures to the Holders
in exchange for Trust Preferred Securities as provided in the Declaration or
the redemption of all of the Trust Preferred Securities), the lesser of (a)
the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions on the Trust Preferred Securities to the date of payment, to the
extent the Issuer has funds legally available therefor, and (b) the amount of
assets of the Issuer, after satisfaction of all liabilities, remaining legally
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Trust Preferred Securities; provided, however,
that, in determining whether holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not apply to Trust Preferred Securities beneficially
owned by the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Trust Preferred Guarantee Trustee,
any Affiliate of the Trust Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Trust Preferred Guarantee Trustee.
"Liquidation Amount" has the meaning assigned to such term in the
Declaration.
"Majority in Liquidation Amount of the Trust Preferred
Securities" means, except as provided by the Trust Indenture Act, a vote by
Holder(s) of Trust Preferred Securities, voting separately as a class, of more
than 50% of the aggregate Liquidation Amount of all Trust Preferred Securities.
- 3 -
7
"Officers' Certificate" means, with respect to any Person (who is
not an individual), a certificate signed by the Chairman of the Board, the
President, a Vice President or the Treasurer, and by an Assistant Treasurer,
the Secretary or an Assistant Secretary of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Preferred Securities 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 definition relating thereto;
(b) A brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) A statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) A statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Trust Preferred
Guarantee Trustee, any officer of the Trust Preferred Guarantee Trustee
assigned to administer corporate trust matters and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Senior Indebtedness" means any indebtedness of the Guarantor,
except for trade credit and any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Debentures.
"Subordinated Indenture" means the Subordinated Indenture, dated
as of November _____, 1998 between the Company and The First National Bank of
Chicago, a national banking association, as trustee, as further amended or
supplemented from time to time.
- 4 -
8
"Successor Trust Preferred Guarantee Trustee" means a successor
Trust Preferred Guarantee Trustee possessing the qualifications to act as Trust
Preferred Guarantee Trustee under Section 4.1.
"Trust Common Securities" means the common securities
representing subordinated undivided beneficial interests in the assets of the
Issuer in accordance with the Declaration that are issued by the Issuer at the
Closing Date or any Date of Delivery (as such terms are defined in the
Underwriting Agreement). All Trust Common Securities issued by the Issuer are
deemed to have been issued as of the Closing Time.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Preferred Guarantee Trustee" means The First National Bank
of Chicago, a national banking association, until a Successor Trust Preferred
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Trust Preferred Securities Guarantee and thereafter means
each such Successor Trust Preferred Guarantee Trustee.
"Trust Preferred Securities" has the meaning assigned to such
term in the preamble of this Agreement. All Trust Preferred Securities issued
by the Issuer are deemed to have been issued as of the Closing Time.
"Trust Securities" means the Trust Common Securities together
with the Trust Preferred Securities.
"Underwriting Agreement" means that certain Underwriting
Agreement, dated as of November ____, 1998, among the Sponsor, the Issuer and
the several underwriters named therein.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Trust Preferred Securities Guarantee is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Trust Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this Trust
Preferred Securities 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.
- 5 -
9
(a) The Trust Preferred Guarantee Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders of Trust Preferred Securities. If the
Trust Preferred Guarantee Trustee is not the registrar under the Declaration,
the Guarantor shall furnish to the Trust Preferred Guarantee Trustee semi-
annually on or before June 15 and December 15 in each year, and at such other
times as the Trust Preferred Guarantee Trustee may request in writing, a list,
in such form and as of such date as the Trust Preferred Guarantee Trustee may
require, containing all the information in the possession or control of the
registrar under the Declaration, the Guarantor or any of its Paying Agents (as
defined in the Declaration) other than the Trust Preferred Guarantee Trustee as
to the names and addresses of Holders of Trust Preferred Securities.
(b) The Trust Preferred 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 Trust Preferred Guarantee Trustee.
Within 60 days after May 15 of each calendar year, the Trust
Preferred Guarantee Trustee shall provide to the Holders of the Trust Preferred
Securities 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 Trust Preferred Guarantee Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture Act.
Section 2.4 Periodic Reports to Trust Preferred Guarantee Trustee.
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act, provided that such compliance certificate shall
be delivered on or before 120 days after the end of each fiscal year of the
Guarantor.
Section 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such evidence of compliance with the conditions precedent, if any,
provided for in this Trust Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.6 Guarantee Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities may, by vote, on behalf of the Holders of all of the Trust
Preferred Securities, waive any past Guarantee Event of Default and its
consequences. Upon such waiver, any such Guarantee Event of
- 6 -
10
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 Trust
Preferred Securities 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 Trust Preferred Guarantee Trustee shall, within 90
days after the occurrence of a Guarantee Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Trust Preferred Securities,
notices of all Guarantee Events of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee charged with the
administration of this Trust Preferred Securities Guarantee, unless such
defaults have been cured before the giving of such notice, provided, that,
except in the case of default in any Guarantee Payment, the Trust Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Trust Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall not be deemed
to have knowledge of any Guarantee Event of Default unless the Trust Preferred
Guarantee Trustee shall have received notice thereof from the Guarantor or a
Holder, or a Responsible Officer of the Trust Preferred Guarantee Trustee
charged with the administration of the Declaration shall have obtained actual
knowledge, of such Guarantee Event of Default.
Section 2.8 Conflicting Interests.
The Declaration shall be deemed to be specifically described in
this Trust Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
TRUST PREFERRED GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee.
(a) This Trust Preferred Securities Guarantee shall be held by
the Trust Preferred Guarantee Trustee for the benefit of the Holders of the
Trust Preferred Securities, and the Trust Preferred Guarantee Trustee shall not
transfer this Trust Preferred Securities Guarantee to any Person except a
Holder of Trust Preferred Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Trust Preferred Guarantee Trustee on
acceptance by such Successor Trust Preferred Guarantee Trustee of its
appointment to act as Successor Trust Preferred Guarantee Trustee. The right,
title and interest of the Trust Preferred Guarantee Trustee shall automatically
vest in any
- 7 -
11
Successor Trust Preferred Guarantee Trustee, and such vesting and succession of
title shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor Trust
Preferred Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a
Responsible Officer of the Trust Preferred Guarantee Trustee charged with the
administration of this Trust Preferred Securities Guarantee has occurred and is
continuing, the Trust Preferred Guarantee Trustee shall enforce this Trust
Preferred Securities Guarantee for the benefit of the Holders of the Trust
Preferred Securities.
(c) The Trust Preferred Guarantee Trustee, before the
occurrence of any Guarantee Event of Default and after the curing or waiver of
all Guarantee Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants shall be read into this Trust
Preferred Securities Guarantee against the Trust Preferred Guarantee Trustee.
In case a Guarantee Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Trust Preferred Guarantee Trustee charged with the administration of
this Trust Preferred Securities Guarantee, the Trust Preferred Guarantee
Trustee shall exercise such of the rights and powers vested in it by this Trust
Preferred Securities 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 Trust Preferred Securities Guarantee
shall be construed to relieve the Trust Preferred Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) Prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such Guarantee Events of
Default that may have occurred:
(A) The duties and obligations of the Trust
Preferred Guarantee Trustee shall be determined solely by the
express provisions of this Trust Preferred Securities Guarantee,
and the Trust Preferred Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Trust Preferred Securities
Guarantee, and no implied covenants or obligations shall be read
into this Trust Preferred Securities Guarantee against the Trust
Preferred Guarantee Trustee; and
(B) In the absence of bad faith on the part of
the Trust Preferred Guarantee Trustee, the Trust Preferred
Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trust
Preferred Guarantee Trustee and conforming to the requirements of
this Trust Preferred Securities Guarantee; but in the case of any
such certificates or opinions that by any provision hereof are
- 8 -
12
specifically required to be furnished to the Trust Preferred
Guarantee Trustee, the Trust Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Preferred Securities
Guarantee;
(ii) The Trust Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer of the Trust Preferred Guarantee Trustee, unless it shall be
proved that the Trust Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) The Trust Preferred Guarantee Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a Majority
in Liquidation Amount of the Trust Preferred Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trust Preferred Guarantee Trustee, or exercising any
trust or power conferred upon the Trust Preferred Guarantee Trustee
under this Trust Preferred Securities Guarantee; and
(iv) No provision of this Trust Preferred Securities
Guarantee shall require the Trust Preferred Guarantee Trustee to expend
or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers, if the Trust Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not assured to it under the terms of this Trust Preferred
Securities Guarantee or indemnity, reasonably satisfactory to the Trust
Preferred Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
(e) Every provision of this Trust Preferred Securities
Guarantee shall be subject to this Section 3.1, whether or not expressly
stated.
Section 3.2 Certain Rights of Trust Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or refraining
from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated
by this Trust Preferred Securities Guarantee shall be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Trust
Preferred Securities Guarantee, the Trust Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Trust Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may,
- 9 -
13
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 Trust Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any instrument
(or any rerecording, refiling or reregistration thereof).
(v) The Trust Preferred Guarantee Trustee may consult
with counsel of its selection, and the advice or opinion of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Trust Preferred Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this Trust
Preferred Securities Guarantee from any court of competent jurisdiction.
(vi) The Trust Preferred Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers vested in it
by this Trust Preferred Securities Guarantee at the request or direction
of any Holder, unless such Holder shall have provided to the Trust
Preferred Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Trust Preferred Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the expenses
of the Trust Preferred 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 Trust Preferred Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Trust Preferred Guarantee Trustee, upon the occurrence of a
Guarantee Event of Default, of its obligation to exercise the rights and
powers vested in it by this Trust Preferred Securities Guarantee.
(vii) The Trust Preferred Guarantee Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trust
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Trust Preferred Guarantee Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians or
attorneys, and the Trust Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
- 10 -
14
(ix) Any action taken by the Trust Preferred Guarantee
Trustee or its agents hereunder shall bind the Holders of the Trust
Preferred Securities, and the signature of the Trust Preferred Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Trust Preferred Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Trust
Preferred Securities Guarantee, both of which shall be conclusively
evidenced by the Trust Preferred Guarantee Trustee or its agent taking
such action.
(x) Whenever in the administration of this Trust
Preferred Securities Guarantee the Trust Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Trust Preferred Guarantee Trustee (i) may request instructions from the
Holders of a Majority in Liquidation Amount of the Trust 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 fully protected in conclusively relying on or acting in
accordance with such instructions.
(xi) The Trust Preferred 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 Trust Preferred Securities Guarantee.
(b) No provision of this Trust Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Trust Preferred
Guarantee Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Trust Preferred Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trust Preferred Guarantee
Trustee shall be construed to be a duty.
Section 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee.
The recitals contained in this Trust Preferred Securities
Guarantee shall be taken as the statements of the Guarantor, and the Trust
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Trust Preferred Guarantee Trustee makes no representation as
to the validity or sufficiency of this Trust Preferred Securities Guarantee.
- 11 -
15
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
Section 4.1 Trust Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Trust Preferred Guarantee
Trustee which shall:
(i) Not be an Affiliate of the Guarantor; and
(ii) Be a corporation or banking association 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 $50,000,000, and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
(b) If at any time the Trust Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Trust Preferred
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Trust Preferred 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 Trust Preferred Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Trust Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during a Guarantee Event of Default. Upon the occurrence and during the
continuance of a Guarantee Event of Default, only the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities may appoint or remove the
Trust Preferred Guarantee Trustee.
(b) The Trust Preferred Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Trust Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Trust Preferred Guarantee Trustee and
delivered to the Guarantor.
- 12 -
16
(c) The Trust Preferred Guarantee Trustee shall hold office
until a Successor Trust Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Trust Preferred Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Trust Preferred Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Trust Preferred Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such Successor Trust
Preferred Guarantee Trustee and delivered to the Guarantor and the resigning
Trust Preferred Guarantee Trustee.
(d) If no Successor Trust Preferred 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
Trust Preferred Guarantee Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor Trust Preferred
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Trust Preferred Guarantee
Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Trust Preferred Guarantee
Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee or removal or resignation of the Trust Preferred Guarantee Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Trust Preferred
Guarantee Trustee all amounts due to the Trust Preferred 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), if, as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert
other than defense of payment. 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 Trust
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding
- 13 -
17
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 Trust Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(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 Trust 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 Trust Preferred Securities or
the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Trust Preferred Securities.
(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 Trust Preferred
Securities, 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 Trust
Preferred Securities;
(f) The settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) Any other circumstances 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 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.
- 14 -
18
Section 5.4 Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of the
Trust Preferred Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trust Preferred
Guarantee Trustee in respect of this Trust Preferred Securities Guarantee or
exercising any trust or power conferred upon the Trust Preferred Guarantee
Trustee under this Trust Preferred Securities Guarantee, provided, that,
subject to Section 3.1, the Trust Preferred Guarantee Trustee shall have the
right to decline to follow any such direction if the Trust Preferred Guarantee
Trustee, being advised by counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trust Preferred Guarantee Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees, and/or Responsible Officers shall
determine that the action or proceeding so directed would involve the Trust
Preferred Guarantee Trustee in personal liability.
(b) If the Trust Preferred Guarantee Trustee fails to enforce
its rights under the Trust Preferred Securities Guarantee after a Holder of
Trust Preferred Securities has made a written request, such Holder of Trust
Preferred Securities may institute a legal proceeding directly against the
Guarantor to enforce the Trust Preferred Guarantee Trustee's rights under this
Trust Preferred Securities Guarantee, without first instituting a legal
proceeding against the Issuer, the Trust Preferred Guarantee Trustee or any
other person or entity. Notwithstanding the foregoing, if the Guarantor has
failed to make a Guarantee Payment, a Holder of Trust Preferred Securities may
directly institute a proceeding in such Holder's own name against the Guarantor
for enforcement of the Trust Preferred Securities Guarantee for such payment.
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.
Section 5.5 Guarantee of Payment.
This Trust Preferred Securities 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 of Trust Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Trust Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except
to the extent required by mandatory provisions of law) be entitled to enforce
or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Trust Preferred Securities Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this Trust Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount
in trust for the Holders and to pay over such amount to the Holders.
- 15 -
19
Section 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Trust
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
Trust Preferred Securities 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; RANKING
Section 6.1 Limitation of Transactions.
So long as any Trust Preferred Securities remain outstanding, if
(a) for any distribution period, full distributions on a cumulative basis on
any Trust Preferred Securities have not been paid or declared and set apart for
payment, (b) an Event of Default (as defined in the Subordinated Indenture) has
occurred and is continuing or there shall have occurred and be continuing any
event of which the Guarantor has actual knowledge that, with the giving of
notice or lapse of time, or both, would constitute an Event of Default with
respect to the Subordinated Debentures, (c) the Guarantor is in default of its
obligations under this Trust Preferred Securities Guarantee or the Trust Common
Securities Guarantee, or (d) the Guarantor shall have given notice of its
selection of an Extension Period (as defined in the Subordinated Indenture) as
provided in the Subordinated Indenture with respect to the Subordinated
Debentures and shall not have rescinded such notice, or such Extension Period
(or any extension thereof) shall be continuing, then, during such period the
Guarantor shall not (i) declare or pay dividends on, make distributions with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to any of its capital stock (except for dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, its capital stock and conversions or exchanges of common stock of one class
into common stock of another class) or (ii) make any payments of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities (including guarantees of indebtedness for money borrowed) of the
Guarantor that rank pari passu with or junior to the Subordinated Debentures
(other than (v) any redemption, liquidation, interest, principal or guarantee
payment by the Guarantor where the payment is made by way of securities
(including capital stock) that rank pari passu with or junior to the securities
on which such redemption, liquidation, interest, principal or guarantee payment
is being made, (w) payments under this Trust Preferred Securities Guarantee or
the Trust Common Securities Guarantee, (x) purchases of Common Stock related to
the issuance of Common Stock under any of the Guarantor's benefit plans for its
directors, officers or employees, (y) as a result of a reclassification of the
Guarantor's capital stock or the exchange or conversion of one series or class
of the Guarantor's capital stock for another series or class of the Guarantor's
capital stock, and (z) 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).
- 16 -
20
Section 6.2 Ranking.
(a) This Trust Preferred Securities Guarantee will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all other liabilities of the Guarantor (other
than the obligations of the Guarantor under the Trust Common Securities
Guarantee, which are subordinate and junior to this Trust Preferred Securities
Guarantee to the extent provided therein), (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the Guarantor or any
of its Affiliates and (iii) senior to the Guarantor's common stock. Any
similar guarantee given hereafter by the Guarantor with respect to trust
preferred securities that is silent as to seniority will rank pari passu with
this Trust Preferred Securities Guarantee.
ARTICLE VII
TERMINATION
Section 7.1 Termination.
This Trust Preferred Securities Guarantee shall terminate upon
(i) full payment of the Redemption Price of all Trust Preferred Securities,
(ii) upon the distribution of the Subordinated Debentures to the Holders of all
of the Trust Preferred Securities or (iii) upon full payment of the amounts
payable in accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this Trust Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Trust Preferred Securities must restore payment of any sums
paid under the Trust Preferred Securities or under this Trust Preferred
Securities Guarantee.
ARTICLE VIII
CERTAIN COVENANTS
Section 8.1 Payment of Additional Sums.
Guarantor covenants and agrees that if and so long as (i) the
Issuer is the holder of all the Subordinated Debentures, (ii) a Trust Tax Event
(as defined in the Declaration) in respect of the Issuer has occurred and is
continuing and (iii) the Guarantor has elected, and has not revoked such
election, to pay Additional Sums (as defined in the Declaration) in respect of
the Trust Common Securities and Trust Preferred Securities, the Guarantor will
pay to the Issuer such Additional Sums.
Section 8.2 Continued Ownership of Trust Common Securities, Etc.
- 17 -
21
The Guarantor covenants and agrees for so long as the Trust
Preferred Securities remain outstanding, (i) (a) to maintain directly or
indirectly 100% ownership of the Trust Common Securities, provided that certain
successor Persons in transactions which are permitted by Article VIII of the
Subordinated Indenture may succeed to the Guarantor's ownership of the Trust
Common Securities, and (b) not to voluntarily terminate, wind-up or liquidate
the Issuer, except in connection with (I) a distribution of the Subordinated
Debentures to the holders of the Trust Securities in liquidation of the Issuer,
(II) the redemption of all Trust Securities or (III) certain mergers,
consolidations or amalgamations permitted by the Declaration, (ii) to use its
reasonable commercial efforts, consistent with the terms and provisions of the
Declaration, to cause the Issuer to remain classified as a grantor trust and
not taxable as a corporation for United States federal income tax purposes, and
(iii) to honor all obligations relating to the exchange of the Trust Preferred
Securities for Subordinated Debentures.
ARTICLE IX
INDEMNIFICATION, ETC.
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
Trust Preferred Securities Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Trust Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and if selected by such Indemnified
Person, has been selected by such Indemnified Person with reasonable care by or
on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Trust Preferred Securities might properly be
paid.
Section 9.2 Fees, Expenses and Indemnification.
The Guarantor covenants and agrees to pay to the Trust Preferred
Guarantee Trustee from time to time, and the Trust Preferred Guarantee Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the
- 18 -
22
Guarantor will pay or reimburse the Trust Preferred Guarantee Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trust Preferred Guarantee Trustee in accordance with any of the
provisions of this Trust Preferred Securities Guarantee (including the
reasonable compensation and the expenses and disbursements of its counsel and
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
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 obligations of the Guarantor under this Section 9.2
shall survive the termination of this Trust Preferred Securities Guarantee or
the earlier resignation or removal of the Trust Preferred Guarantee Trustee.
ARTICLE X
MISCELLANEOUS
Section 10.1 Successors and Assigns.
All guarantees and agreements contained in this Trust Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Trust Preferred Securities then outstanding.
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 Trust Preferred Securities Guarantee may only be
amended with the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Trust Preferred Securities. The provisions of the
Declaration with respect to consents to amendments (whether at a meeting or
otherwise) and meetings of Holders shall apply to the giving of such approval.
Section 10.3 Holding Company Formation, Consolidations and Mergers.
Notwithstanding anything to the contrary in this Agreement, the
Guarantor may form a holding company by merger with or into a single direct or
indirect wholly owned subsidiary of the Guarantor, whether under Section 251(g)
of the General Corporation Law of Delaware or otherwise, and in connection
therewith the Guarantor may sell, transfer or lease any of its properties and
assets to such holding company. Upon any consolidation of the Guarantor with,
or merger of the Guarantor into, any other Person or any sale, transfer or
lease of the properties and assets of the Guarantor as, or substantially as, an
entirety by the Guarantor or upon any holding company formation in
- 19 -
23
accordance with the preceding sentence, the successor Person formed by such
consolidation or into which the Guarantor is merged or to which such sale,
transfer or lease is made, or which constitutes the holding company formed as
contemplated in the preceding sentence, shall execute and deliver to the Trust
Preferred Guarantee Trustee an instrument of assumption in form satisfactory to
the Trust Preferred Guarantee Trustee whereby such successor expressly assumes
the due and punctual performance and observance of all of the covenants and
conditions of this Trust Preferred Securities Guarantee to be performed by the
Guarantor and such successor Person shall thereupon succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor under
this Trust Preferred Securities Guarantee with the same effect as if such
successor Person had been named originally as the Guarantor herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Trust Preferred Securities
Guarantee. Notwithstanding the foregoing, the predecessor Person may elect, at
its option, not to be so relieved of such obligations and covenants, provided
that the predecessor Person and the successor Person shall agree in writing to
be co-obligors jointly and severally with respect to all such obligations and
covenants. Concurrently with the delivery to the Trust Preferred Guarantee
Trustee of such instrument of assumption, the Guarantor shall deliver to the
Trust Preferred Guarantee Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, sale or lease
or the formation of such holding company and the transactions effected in
connection therewith and the related instrument of assumption comply with this
Article and that all conditions precedent herein provided relating to such
transaction and assumption have been complied with.
Section 10.4 Notices.
All notices provided for in this Trust Preferred Securities
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 Trust Preferred Guarantee Trustee, at the
Trust Preferred Guarantee Trustee's Corporate Trust Office, Attention:
Corporate Trustee, Administration Department.
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Trust Preferred Securities and the Trust Preferred
Guarantee Trustee):
KBK Capital Corporation
2200 City Center II
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Vice President and Controller
- 20 -
24
(c) If given to any Holder of Trust Preferred Securities, 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 10.5 Benefit.
This Trust Preferred Securities Guarantee is solely for the
benefit of the Holders of the Trust Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Trust Preferred
Securities.
Section 10.6 Governing Law.
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the
day and year first above written.
KBK CAPITAL CORPORATION,
as Guarantor
By:
--------------------------------
Xxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trust Preferred Guarantee Trustee
By:
--------------------------------
Name:
-----------------------
Title:
----------------------
- 21 -
