Exhibit 11
GUARANTEE AGREEMENT
Between
IndyMac Bancorp, Inc.,
as Guarantor
And
The Bank of New York,
as Guarantee Trustee
Dated as of ______________, 2001
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETATION................................................ 1
Section 1.1. Interpretation................................................ 1
Section 1.2. Definitions................................................... 2
ARTICLE II TRUST INDENTURE ACT........................................................... 5
Section 2.1. Trust Indenture Act, Application.............................. 5
Section 2.2. Lists of Holders of Securities................................ 6
Section 2.3. Reports by the Guarantee Trustee.............................. 6
Section 2.4. Periodic Reports to the Guarantee Trustee..................... 6
Section 2.5. Evidence of Compliance with Conditions Precedent.............. 6
Section 2.6. Events of Default; Waiver..................................... 7
Section 2.7. Event of Default; Notice...................................... 7
Section 2.8. Conflicting Interests......................................... 7
Section 2.9. Disclosure of Information..................................... 7
Section 2.10. Guarantee Trustee May File Proofs of Claim.................... 7
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE................................ 8
Section 3.1. Powers and Duties of the Guarantee Trustee.................... 8
Section 3.2. Certain Rights of Guarantee Trustee........................... 9
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee......... 11
ARTICLE IV GUARANTEE TRUSTEE............................................................. 11
Section 4.1. Guarantee Trustee: Eligibility................................ 11
Section 4.2. Appointment, Removal and Resignation of Guarantee Trustee..... 12
ARTICLE V GUARANTEE..................................................................... 12
Section 5.1. Guarantee..................................................... 12
Section 5.2. Waiver of Notice and Demand................................... 13
Section 5.3. Obligations Not Affected...................................... 13
Section 5.4. Rights of Holders............................................. 14
Section 5.5. Guarantee of Payment.......................................... 14
Section 5.6. Subrogation................................................... 14
Section 5.7 Independent Obligations....................................... 15
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION..................................... 15
Section 6.1. Limitation of Transactions.................................... 15
Section 6.2. Ranking....................................................... 16
ARTICLE VII TERMINATION................................................................... 16
Section 7.1. Termination................................................... 16
ARTICLE VIII INDEMNIFICATION............................................................... 17
Section 8.1. Exculpation................................................... 17
Section 8.2. Indemnification............................................... 17
ARTICLE IX MISCELLANEOUS................................................................. 17
Section 9.1. Successors and Assigns........................................ 17
Section 9.2. Amendments.................................................... 17
Section 9.3. Notices....................................................... 18
Section 9.4. Benefit....................................................... 19
Section 9.5. Governing Law................................................. 19
Section 9.6. Counterparts.................................................. 19
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This GUARANTEE AGREEMENT (the "Guarantee"), dated as of November __,
2001, is executed and delivered by IndyMac Bancorp, Inc., a Delaware corporation
(the "Guarantor"), and The Bank of New York, a New York banking corporation as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Securities (as defined herein) of IndyMac
Capital Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of November__, 2001, among the Guarantor, as
Sponsor, Xxxxx Xxxxxx and Xxxxxxx Xxxxxxx, as the initial Administrative
Trustees, Wilmington Trust Company, as the initial Property Trustee, and
Wilmington Trust Company, as the Delaware Trustee, the Issuer is issuing on the
date hereof 3,000,000 (or 3,450,000 if the Underwriters' option with respect to
the Units (as defined below) is exercised in full) preferred securities, stated
liquidation amount of $50 per preferred security, having an aggregate stated
liquidation amount of $150,000,000 (or $172,500,000, if the Underwriters' option
with respect to the Units is exercised in full), such preferred securities being
designated the Preferred Securities (the "Preferred Securities") and 90,000 (or
103,500 if the Underwriters' over-allotment option with respect to the Units is
exercised in full) common securities, stated liquidation amount of $50 per
common security, having an aggregate stated liquidation amount of $4,500,000 (or
$5,175,000 if the Underwriters' option with respect to the Units is exercised in
full), such common securities being designated the Common Securities (the
"Common Securities" and, together with the Preferred Securities, the
"Securities"); and
WHEREAS, as incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay in full to the Holders the Guarantee Payments
(as defined below) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. INTERPRETATION
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in Section 1.2;
(b) terms defined in the Trust Agreement as at the date of execution of
this Guarantee have the same meaning when used in this Guarantee unless
otherwise defined in this Guarantee;
(c) a term defined anywhere in this Guarantee has the same meaning
throughout;
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(d) all references to "this Guarantee" are to this Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Guarantee to Articles and Sections are to
Articles and Sections of this Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee, unless otherwise defined in this Guarantee or unless the
context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
SECTION 1.2. DEFINITIONS
The following terms have the following meanings:
"Accreted Value" has the meaning set forth in the Trust Agreement.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" has the meaning set forth in the Trust Agreement.
"Change of Control Repurchase Price" has the meaning set forth in the
Trust Agreement.
"Common Securities" has the meaning set forth in the Recitals hereto.
"Corporate Trust Office" means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx
Xxxx, Xxx Xxxx 00000.
"Covered Person" means any Holder or beneficial owner of Securities.
"Debenture Issuer" has the meaning set forth in the Trust Agreement.
"Debenture Trustee" has the meaning set forth in the Trust Agreement.
"Debentures" means the series of subordinated debt securities of the
Guarantor designated the ________% Junior Subordinated Deferrable Interest
Debentures due November __, 2031 to be purchased by the Issuer and held by the
Property Trustee.
"Event of Default" means a failure by the Guarantor to perform any of
its payment or other obligations under this Guarantee.
"First Supplemental Indenture" means the First Supplemental Indenture
to the Original Indenture, dated as of November__, 2001, between the Guarantor,
as Debenture Issuer, and the Debenture Trustee, as trustee.
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"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid or
made by the Issuer:
(i) any accumulated and unpaid Distributions (as defined in
the Trust Agreement) that are required to be paid on such Securities to
the extent the Issuer has funds legally available therefor;
(ii) the Redemption Price (as defined in the Trust Agreement),
with respect to the Securities in respect of which the related
Debentures have been repaid at maturity, to the extent the Issuer has
funds legally available therefor;
(iii) the Change of Control Repurchase Price (as defined in
the Trust Agreement), with respect to the Preferred Securities of
Holders which exercised their right pursuant to Section 6.8 of the
Trust Agreement to require the Trust to exchange their Preferred
Securities for Debentures and require the Debenture Issuer to
repurchase the Debentures which they have received in exchange for
their Preferred Securities, to the extent the Issuer has funds legally
available therefor; and
(iv) upon a voluntary or involuntary dissolution, termination
and liquidation of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Securities as
provided in the Trust Agreement), the lesser of:
(a) the aggregate Accreted Value of the Securities
plus all accumulated and unpaid Distributions on the
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 remaining
available for distribution to Holders in liquidation of the
Issuer.
"Guarantee Trustee" means The Bank of New York, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"Guarantor" has the meaning set forth in the Recitals hereto.
"Holder" has the meaning given such term in the Trust Agreement.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Original Indenture, dated as of November__, 2001,
between the Guarantor, as Debenture Issuer, and the Debenture Trustee, as
trustee, as amended by the First Supplemental Indenture and as further amended
or supplemented from time to time.
"Indenture Event of Default" means any event specified in Section 501
of the Original Indenture and Section 2.10 of the Supplemental Indenture.
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"Issue" has the meaning set forth in the Recitals hereto.
"Majority in Liquidation Amount" means, except as provided by the Trust
Indenture Act, a vote by Holders of outstanding Securities voting together as a
single class or, as the context may require, the Holders of outstanding
Preferred Securities or the Holders of outstanding Common Securities, voting
separately as a class, who are the record owners of more than 50% of the
aggregate stated liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities or all outstanding Securities of the relevant class,
as the case may be.
"Officers' Certificate" means, with respect to any person, a
certificate signed by the Chairman, the Chief Executive Officer, a Senior
Executive Vice President or Executive Vice President, the Chief Financial
Officer, and the Secretary or an Assistant Secretary of the Guarantor. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee (other than pursuant to Section
314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a 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.
"Original Indenture" means the Junior Subordinated Indenture, dated as
of November__, 2001, between the Guarantor, as Debenture Issuer, and the
Debenture Trustee, as trustee.
"Other Debentures" means all junior subordinated debentures issued by
the Guarantor from time to time and sold to any other trust, partnership or
other entity affiliated with the Guarantor that is a financing vehicle of the
Guarantor, if any, in each case similar to the Issuer.
"Other Guarantees" means all guarantees to be issued by the Guarantor
with respect to capital securities, if any, similar to the Securities issued by
any other trust, partnership or other entity affiliated with the Guarantor that
is a financing vehicle of the Guarantor, if any, in each case similar to the
Issuer.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
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"Preferred Securities" has the meaning set forth in the Recitals
hereto.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Pro Rata" has the meaning set forth in the Trust Agreement.
"Redemption Price" has the meaning set forth in the Trust Agreement.
"Repurchase Price" has the meaning set forth in the Trust Agreement.
"Responsible Officer" means any officer within the Corporate Trust
Office of the Guarantee Trustee, including any vice president, any assistant
vice president, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Securities" has the meaning set forth in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" has the meaning set forth in the Recitals hereto.
"Trust Enforcement Event" has the meaning given such term in the Trust
Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor legislation, in each case, as amended.
"Underwriter" has the meaning set forth in the Trust Agreement
"Unit" has the meaning set forth in the Trust Agreement.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT, APPLICATION
(a) This Guarantee is subject to the provisions of the Trust Indenture
Act that are required to be part of this Guarantee and shall be governed, to the
extent applicable, by such provisions; and
(b) If and to the extent that any provision of this 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.
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SECTION 2.2. LISTS OF HOLDERS OF SECURITIES
(a) The Guarantor shall provide the Guarantee Trustee (unless the
Guarantee Trustee is otherwise the registrar of the Securities) with a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders"):
(i) as of the record date relating to the payment of any
Guarantee Payment, at least one Business Day prior to the date for
payment of such Guarantee Payment, except while the Preferred
Securities are represented by one or more Global Preferred Securities;
and
(ii) at any other time, within 30 days of receipt by the
Guarantor of a written request from the Guarantee Trustee for a List of
Holders as of a date no more than fifteen days before such List of
Holders is given to the Guarantee Trustee.
If at any time the List of Holders does not differ from the most recent List of
Holders provided to the Guarantee Trustee by the Guarantor, the Guarantor shall
not be obligated to provide such List of Holders. The Guarantee Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it, provided that the Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and Section 312(b)
of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE
Within 60 days after May 15 of each year , the Guarantee Trustee shall
provide to the Holders of the Preferred Securities such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the other requirements of Section 313 of the Trust Indenture
Act.
SECTION 2.4. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act,
if any, and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this 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.
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SECTION 2.6. EVENTS OF DEFAULT; WAIVER
The Holders of a Majority in Liquidation Amount of the Securities may,
by vote, on behalf of all Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising there from shall be deemed to have been cured,
for every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, mail by first class postage prepaid, to all Holders,
notices of all Events of Default actually known to a Responsible Officer, unless
such defaults have been cured before the giving of such notice, provided, that,
except in the case of default in the payment of any Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors and/or a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written notice
from the Guarantor, or a Responsible Officer charged with the administration of
the Trust Agreement shall have obtained actual knowledge, of such Event of
Default.
SECTION 2.8. CONFLICTING INTERESTS
The Trust Agreement and the Indenture shall be deemed to be
specifically described in this Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 2.9. DISCLOSURE OF INFORMATION
The disclosure of information as to the names and addresses of the
Holders of the Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, shall not
be deemed to be a violation of any existing law, or any law hereafter enacted
which does not specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Guarantee Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
SECTION 2.10. GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM
Upon the occurrence of an Event of Default, the Guarantee Trustee is
hereby authorized, but shall not be obligated, to:
(a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee Payments
remaining unpaid; and
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(b) file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders
allowed in any judicial proceedings relative to the Guarantor, its creditors or
its property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE
(a) This Guarantee shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee pursuant to Section 4.2. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor 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 Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee
for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the cure or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer, the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this 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 Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee,
and no implied covenants or obligations shall be read into
this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the 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
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furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the 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 Securities relating to the time, method and
place of conducting any proceeding, for any remedy available to the
Guarantee Trustee in respect of this Guarantee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee; and
(iv) NO PROVISION OF THIS GUARANTEE SHALL REQUIRE THE 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. SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE
TRUSTEE
(a) Subject to the provisions of Section 3.1:
(i) The 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 Guarantee may be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to record, file
or register any instrument (or any duty to rerecord, refile or
reregister such instrument).
(v) The Guarantee Trustee may consult with counsel of its
selection or other experts of its selection, and the 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
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advice or opinion. Such counsel may be counsel to the Guarantor or any
of its Affiliates and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee from any court of
competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the 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 Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee.
(vii) The 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 Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(viii) The 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 Guarantee
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the 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 Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Guarantee, both
of which shall be conclusively evidenced by the Guarantee Trustee's or
its agent's taking such action.
(A) Whenever in the administration of this Guarantee
the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee:
(B) may request instructions from the Holders of a
Majority in Liquidation Amount.(C) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received; and
(D) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(x) The 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
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to be authorized or within the discretion or rights or powers conferred
upon it by this Guarantee.
(b) No provision of this Guarantee shall be deemed to impose any duty
or obligation on the 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 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 Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE
(a) The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE: ELIGIBILITY
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be 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 Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
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SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor except during an Event of
Default. Subject to the provisions of this Section 4.2, if an Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed by the Holders of a Majority in Liquidation Amount.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor Guarantee
Trustee shall have been appointed or until its removal or resignation. The
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 30 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee
resigning or being removed may at the expense of the Guarantor petition any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts due to the Guarantee Trustee accrued to the date
of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE
To the extent set forth in this Guarantee, the Guarantor irrevocably
and unconditionally agrees to pay in full to all Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer) on a Pro Rata
basis, as and when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders. If a Trust Enforcement Event has occurred and is
continuing, the rights of the Holders of the Common
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Securities to receive Guarantee Payments shall be subordinated to the rights of
the Holders of Preferred Securities to receive Guarantee Payments.
Notwithstanding anything to the contrary herein, the Guarantor, in its capacity
as Debenture Issuer, retains all of its rights under the Indenture to:
(i) extend the interest payment period on the Debentures and
the Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extension Period (as defined in the Indenture) with
respect to the Distributions on the Securities; and
(ii) change the maturity date of the Debentures to the extent
permitted by the Indenture.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND
The Guarantor hereby waives notice of acceptance of this Guarantee and
of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED
The obligations, covenants, agreements and duties of the Guarantor
under this 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 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 or any other sums payable under
the terms of the Securities or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the Securities
(other than an extension of time for payment of Distributions, Redemption Price
or other sum payable that results from the extension of any interest payment
period on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the 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;
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(e) any invalidity of, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed or
incurred in this Guarantee; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of the Guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or
any defense of any kind or nature that the Guarantor has or may have against any
Holder (except the defense of payment to such Holder) shall be available
hereunder to the Guarantor against such Holder to reduce the payments to it
under this Guarantee.
SECTION 5.4. RIGHTS OF HOLDERS
(a) The Holders of a Majority in Liquidation Amount of the Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of this Guarantee
or exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, subject
to the subordination provisions of Section 6.2, any Holder may institute a legal
proceeding directly against the Guarantor to enforce the Guarantee Trustee's
rights under this Guarantee, without first instituting a legal proceeding
against the Issuer, the Guarantee Trustee or any other Person or entity. In
addition, if the Guarantor has failed to make a Guarantee Payment, a Holder,
subject to the subordination provisions of Section 6.2, may institute a legal
proceeding directly against the Guarantor for enforcement of the Guarantee for
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Securities
of such Holder. The Guarantor waives any right or remedy to require that any
action be brought first against the Issuer or any other Person before proceeding
directly against the Guarantor.
SECTION 5.5. GUARANTEE OF PAYMENT
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6. SUBROGATION
The Guarantor shall be subrogated to all, if any, rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this 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 Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this
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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 Guarantee Trustee for the benefit of
the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the 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 notwithstanding the
occurrence of any event referred to in subsections (a) through (g), inclusive,
of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS
So long as any Securities remain outstanding, if an Event of Default
occurs under the Guarantee or a Trust Enforcement Event occurs under the Trust
Agreement and written notice of such event has been given to the Guarantor, the
Guarantor shall not:
(a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Guarantor's capital stock (which includes common and preferred stock);
(b) make any payment of principal of or premium, if any, or interest on
or repay, repurchase or redeem any debt securities of the Guarantor (including
any Other Debentures) that rank pari passu with or junior in right of payment to
the Debentures or make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in right of payment to the Debentures other than:
(i) dividends or distributions in shares of, or options,
warrants, rights to subscribe for or purchase shares of, common stock
of the Guarantor;
(ii) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto;
(iii) payments under this Guarantee;
(iv) as a result of a reclassification of the Guarantor's
capital stock or the exchange or the conversion of one class or series
of the Guarantor's capital stock for another class or series of the
Guarantor's capital stock;
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(v) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged; and
(vi) purchases of common stock related to the issuance of
common stock or rights under any of the Guarantor's benefit plans for
its directors, officers or employees or any of the Guarantor's dividend
reinvestment plans.
SECTION 6.2. RANKING
This Guarantee will constitute an unsecured obligation of the Guarantor
and will rank:
(i) subordinate and junior in right of payment to Senior
Indebtedness (as defined in the Indenture), to the same extent and in
the same manner that the Debentures are subordinated to Senior
Indebtedness pursuant to the Indenture (except as indicated below), it
being understood that the terms of Article 6 of the Indenture shall
apply to the obligations of the Guarantor under this Guarantee as if
(x) such Article 6 were set forth herein in full and (y) such
obligations were substituted for the term "Debentures" appearing in
such Article 6, except that with respect to Section 6 of the Indenture
only, the term "Senior Debt" shall mean all liabilities of the
Guarantor, whether or not for money borrowed (other than obligations in
respect of Other Guarantees); and
(ii) pari passu with any guarantee now or hereafter entered
into by the Guarantor in respect of any preferred or preference stock
of any Affiliate of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION
This Guarantee shall terminate upon:
(i) full payment of the Redemption Price of all
Securities;
(ii) distribution of the Debentures held by the Issuer to
the Holders; or
(iii) liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Trust Agreement or the
distribution of the Debentures to the Holders.
Notwithstanding the foregoing, this Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid under the Securities or under this Guarantee.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this 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 Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2. INDEMNIFICATION
To the fullest extent permitted by law, the Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Guarantee and shall survive the removal or
resignation of the Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS
All guarantees and agreements contained in this Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders then outstanding.
SECTION 9.2. 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 Guarantee may only be
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amended by the Guarantor and the Guarantee Trustee with the prior approval of
the Holders of a Majority in Liquidation Amount of the Securities (including the
stated liquidation amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined). The provisions of the Trust Agreement with
respect to consents to amendments thereof, whether at a meeting or otherwise,
shall apply to the giving of such approval.
SECTION 9.3. NOTICES
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered by hand or
express courier, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, at the Issuer's mailing address set forth
below (or such other address as the Issuer may give notice of to the Holders and
the Guarantee Trustee):
IndyMac Capital Trust I
c/o IndyMac Bancorp, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Administrative Trustee
Telecopy:
(b) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Holders and the Issuer):
The Bank of Xxx Xxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy:
(c) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders and the Guarantee Trustee):
IndyMac Bancorp, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention:
Telecopy:
(d) If given to any Holder, at such Holder's 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
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other document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 9.4. BENEFIT
This Guarantee is solely for the benefit of the Holders and, subject to
Section 3.1(a), is not separately transferable from the Securities.
SECTION 9.5. GOVERNING LAW
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [CONFIRM]
SECTION 9.6. COUNTERPARTS
This Guarantee may contain more than one counterpart of the signature
page, and this Guarantee may be executed by affixing of the signature of each of
the parties to one of such counterpart signature pages. All such counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signers had signed a single signature page.
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IN WITNESS WHEREOF, this Guarantee Agreement has been entered into as
of the day and year first above written.
INDYMAC BANCORP, INC.
By:
------------------------
Name:
Title:
THE BANK OF NEW YORK,
As Guarantee Trustee
By:
------------------------
Name:
Title:
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