Exhibit 4.7
FORM OF TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
DATED AS OF ________________
BY AND BETWEEN
XXXXXX CORPORATION,
AS GUARANTOR
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
CROSS REFERENCE TABLE*
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
---------------- ---------
310(a)....................................................... 4.1(a)
310(b)....................................................... 2.8; 4.1(c)
310(c)....................................................... Inapplicable
311(a)....................................................... 2.2(b)
311(b)....................................................... 2.2(b)
311(c)....................................................... Inapplicable
312(a)....................................................... 2.2(a); 2.9
312(b)....................................................... 2.2(b); 2.9
312(c)....................................................... 2.9
313(a)....................................................... 2.3
313(b)....................................................... 2.3
313(c)....................................................... 2.3
313(d)....................................................... 2.3
314(a)....................................................... 2.4
314(b)....................................................... Inapplicable
314(c)....................................................... 2.5
314(d)....................................................... Inapplicable
314(e)....................................................... 1.1; 2.5; 3.2
314(f)....................................................... Inapplicable
315(a)....................................................... 3.1(d); 3.2(a)
315(b)....................................................... 2.7(a)
315(c)....................................................... 3.1(c)
315(d)....................................................... 3.1(d)
315(e)....................................................... Inapplicable
316(a)....................................................... 2.6; 5.4(a)
316(b)....................................................... 5.3
316(c)....................................................... 2.2
317(a)....................................................... 2.10
317(b)....................................................... Inapplicable
318(a)....................................................... 2.1(b)
--------
* THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THE AGREEMENT AND SHALL
NOT HAVE ANY BEARING UPON THE INTERPRETATION OF ANY OF ITS TERMS OR PROVISIONS.
TABLE OF CONTENTS
PAGE
ARTICLE 1 INTERPRETATION AND DEFINITIONS ...................................... 1
SECTION 1.1 Interpretation and Definitions ............................. 1
ARTICLE 2 TRUST INDENTURE ACT ................................................. 6
SECTION 2.1 Trust Indenture Act; Application ........................... 6
SECTION 2.2 Lists of Holders of Securities ............................. 6
SECTION 2.3 Reports by Guarantee Trustee ............................... 6
SECTION 2.4 Periodic Reports to Guarantee Trustee ...................... 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent ........... 7
SECTION 2.6 Guarantee Event of Default; Waiver ......................... 7
SECTION 2.7 Guarantee Event of Default; Notice ......................... 7
SECTION 2.8 Conflicting Interests ...................................... 7
SECTION 2.9 Disclosure of Information .................................. 8
SECTION 2.10 Guarantee Trustee May File Proofs of Claim ................. 8
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE ...................... 8
SECTION 3.1 Powers and Duties of Guarantee Trustee ..................... 8
SECTION 3.2 Certain Rights of Guarantee Trustee ........................ 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee ...... 12
ARTICLE 4 GUARANTEE TRUSTEE ................................................... 12
SECTION 4.1 Guarantee Trustee; Eligibility ............................. 12
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee... 12
ARTICLE 5 GUARANTEE ........................................................... 13
SECTION 5.1 Guarantee .................................................. 13
SECTION 5.2 Waiver of Notice and Demand ................................ 14
SECTION 5.3 Obligations Not Affected ................................... 14
SECTION 5.4 Rights of Holders .......................................... 15
SECTION 5.5 Guarantee of Payment ....................................... 16
SECTION 5.6 Subrogation ................................................ 16
SECTION 5.7 Independent Obligations .................................... 16
ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION ........................... 16
SECTION 6.1 Limitation of Transactions ................................. 16
SECTION 6.2 Ranking .................................................... 17
SECTION 6.3 Subordination of Common Securities ......................... 17
ARTICLE 7 TERMINATION ......................................................... 17
SECTION 7.1 Termination ................................................ 17
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ARTICLE 8 INDEMNIFICATION ........................................................ 18
SECTION 8.1 Exculpation ................................................ 18
SECTION 8.2 Compensation, Expenses and Indemnification ................. 18
ARTICLE 9 MISCELLANEOUS .......................................................... 19
SECTION 9.1 Successors and Assigns ..................................... 19
SECTION 9.2 Amendments ................................................. 19
SECTION 9.3 Notices .................................................... 19
SECTION 9.4 Benefit .................................................... 20
SECTION 9.5 Governing Law .............................................. 20
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Guarantee"),
dated as of ________________, is executed and delivered by XXXXXX CORPORATION, a
Virginia corporation (the "Guarantor"), and THE CHASE MANHATTAN BANK, 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 XXXXXX CAPITAL TRUST II, a Delaware statutory business trust (the
"Trust").
RECITALS
WHEREAS, pursuant to the Trust Agreement (as defined herein), the Trust is
initially issuing on the date hereof (i) $_____________ aggregate liquidation
amount of Trust Preferred Securities, having a liquidation amount of $__________
per security and designated the "__________ ___% Trust Preferred Securities" of
the Trust and may, from time to time, issue additional Tranches (as defined
herein) of such securities in the future (the "Trust Preferred Securities") and
(ii) $_____________ aggregate liquidation amount of common securities, having a
liquidation amount equal to approximately __%of the total capital of the Trust
and designated the "___% Common Securities" of the Trust and may, from time to
time, issue additional Tranches (as defined herein) of such securities in the
future (the "Common Securities" and, together with the Trust Preferred
Securities, the "Securities");
WHEREAS, the Securities will be issued by the Trust and the proceeds
thereof will be used to purchase the Junior Subordinated Debentures of the
Guarantor, which will be held by the Trust as trust assets;
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 to the Holders of the Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, if a Trust Enforcement Event (as defined herein) has occurred and
is continuing, the rights of holders of the Common Securities to receive
Guarantee Payments (as defined herein) under this Guarantee are subordinated to
the rights of Holders of Trust Preferred Securities to receive Guarantee
Payments under this Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. 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 this Section
1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections and Recitals are
to Articles, Sections and Recitals of this Guarantee, unless otherwise
specified;
(e) unless otherwise defined in this Guarantee, a term defined in the Trust
Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term shall include the feminine form of a
term, as applicable; and
(g) the following terms have the following meanings:
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"BUSINESS DAY" has the meaning specified in the Trust Agreement.
"TRUST PREFERRED SECURITIES" has the meaning specified in the Recitals
hereto.
"COMMON SECURITIES" has the meaning specified in the Recitals hereto.
"CORPORATE TRUST OFFICE" means the office of the Guarantee Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Guarantee is located
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional
Trust Services.
"COVERED PERSON" means a Holder or beneficial owner of Securities.
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"GLOBAL SECURITY" means a fully registered, global Capital Security
representing the Trust Preferred Securities.
"GUARANTEE EVENT OF DEFAULT" means a default by the Guarantor on any of its
payment obligations under this Guarantee.
"GUARANTEE PAYMENTS" means the following payments or distributions, without
duplication, with respect to the Securities, to the extent not paid by or on
behalf of the Trust: (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 Trust has funds legally and immediately available therefor at the
time, (ii) the Redemption Price, including all accumulated and unpaid
Distributions to the date of redemption, with respect to any Securities called
for redemption by the Trust, to the extent the Trust shall have funds legally
and immediately available therefor at the time or (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust (other than in
connection with the distribution of Junior Subordinated Debentures to the
Holders in exchange for Securities as provided in the Trust Agreement), the
lesser of (a) the aggregate of the liquidation amount and all accumulated and
unpaid Distributions on the Securities to the date of payment, to the extent the
Trust has funds legally and immediately available therefor and (b) the amount of
assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust (in either case, the "Liquidation Distribution").
"GUARANTEE TRUSTEE" means The Chase Manhattan Bank, 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.
"HOLDER" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that, in determining whether the
Holders of the requisite percentage of Trust Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor or any other obligor on the Trust
Preferred Securities; and provided further that in determining whether the
Holders of the requisite liquidation amount of Trust Preferred Securities have
voted on any matter provided for in this Guarantee, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Trust
Preferred Securities remain in the form of one or more Global Certificates (as
defined in the Trust Agreement) and if the Depositary which is the holder of
such Global Securities has sent an omnibus proxy to the Trust assigning voting
rights to Depositary Participants (as defined in the Trust Agreement) to whose
accounts the Trust Preferred Securities are credited on the record date, the
term "Holders" shall mean such Depositary Participants acting at the direction
of the Beneficial Owners (as defined in the Trust Agreement).
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"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 Junior Subordinated Indenture, dated as of ____ __,
200_, by and between Xxxxxx Corporation and The Chase Manhattan Bank as Trustee,
as supplemented, pursuant to which the Junior Subordinated Debentures are to be
issued to the Property Trustee as defined in the Trust Agreement.
"JUNIOR SUBORDINATED DEBENTURES" means the series of Junior Subordinated
Debentures to be issued, from time to time, by Xxxxxx Corporation designated the
"_______________________________" held by the Property Trustee as defined in the
Trust Agreement.
"LIST OF HOLDERS" has the meaning assigned to it in Section 2.2 hereof.
"MAJORITY IN LIQUIDATION AMOUNT" means, except as provided in the terms of
the Trust Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Trust Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
In determining whether the Holders of the requisite amount of Securities have
voted, Securities which are owned by the Guarantor or any Affiliate of the
Guarantor or any other obligor on the Securities shall be disregarded for the
purpose of any such determination.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers (as defined in the
Trust Agreement) of such Person. 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 on behalf of such Person 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
on behalf of such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each such officer acting
on behalf of such Person, 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.
"REDEMPTION PRICE" has the meaning specified in the Trust Agreement.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee Trustee, any
officer with direct responsibility for the administration of this Guarantee and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"SECURITIES" has the meaning specified in the Recitals hereto.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"TRANCHE" has the meaning specified in the Trust Agreement.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement of the
Trust, dated as of _____________, as amended, modified or supplemented from time
to time, among the trustees of the Trust named therein, the Guarantor, as
sponsor, and the Holders, from time to time, of undivided beneficial ownership
interests in the assets of the Trust.
"TRUST ENFORCEMENT EVENT" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Junior Subordinated Debentures.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
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ARTICLE 2
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, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Guarantee Trustee (i) except while the
Trust Preferred Securities are represented by one or more Global Securities at
least one Business Day prior to the date for payment of Distributions, a list,
in such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Securities ("List of Holders") as of the record
date relating to the payment of such Distributions, 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 15 days before
such List of Holders is given to the Guarantee Trustee, excluding from any such
list names and addresses received by the Guarantee Trustee in its capacity as
Security Registrar; provided that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Guarantee Trustee by the
Guarantor. 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 Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY GUARANTEE TRUSTEE. Within 60 days after May 15 of
each year (commencing with the year of the initial issuance of the Securities),
the Guarantee Trustee shall provide to the Holders of the 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 Guarantee Trustee shall also comply with the other requirements of Section
313 of the Trust Indenture Act. The Guarantor shall promptly notify the
Guarantee Trustee when the Securities are listed on any stock exchange.
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SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and information as
required by Section 314(a) (if any) of the Trust Indenture Act and the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314(a) of the
Trust Indenture Act, provided that such compliance certificate shall be
delivered on or before 120 days after the end of each calendar year of the
Guarantor.
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.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of a Majority
in Liquidation Amount of the Trust Preferred Securities may, by vote or written
consent, 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 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 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 Guarantee Trustee shall, within 90 days after the occurrence of a
Guarantee Event of Default actually known to a Responsible Officer of the
Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all such Guarantee Events of Default, unless such
defaults have been cured before the giving of such notice; provided, that the
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof from the Guarantor or a Holder or a Responsible Officer
of the Guarantee Trustee charged with the administration of this Guarantee shall
have obtained actual knowledge thereof.
SECTION 2.8 CONFLICTING INTERESTS. The Amended and Restated Trust
Agreements of Xxxxxx Capital Trust I, dated as of _________, among the Sponsor,
The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank USA,
National Association (successor to Chase Manhattan Bank Delaware), as Delaware
Trustee, and the Administrators named therein, and the Trust Preferred
Securities Guarantee
7
Agreements dated as of _______, between the Sponsor and The Chase Manhattan
Bank, as Guarantee Trustee shall be deemed to be specifically described in this
Trust Agreement for 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 a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized 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 (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 of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee on behalf of the
Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities 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. The right, title and
interest of the Guarantee Trustee in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and succession of
title shall be effective whether or not conveyance documents have been executed
and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible Officer
of the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall be entitled to enforce this Guarantee for the benefit of the Holders of
the Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee Event of
Default and after the curing of all Guarantee 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.
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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 Guarantee Trustee, 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 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 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 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 of the Guarantee
Trustee, 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 not less than 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
Guarantee Trustee, 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
9
the performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Guarantee or if
the Guarantee Trustee shall have reasonable grounds for believing that
an indemnity, reasonably satisfactory to the Guarantee Trustee,
against such risk or liability is not reasonably assured to it under
the terms of this Guarantee.
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 shall 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 see to any
recording, filing or registration or any instrument (or any
rerecording, refiling or re-registration thereof);
(v) The Guarantee Trustee may consult with counsel, 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 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
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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 a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Guarantee in the manner provided by Section 3.1(c);
(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
a 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; and
(x) 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 (A) may request written instructions
from the Holders of a Majority in Liquidation Amount of the Securities,
(B) may refrain from enforcing such remedy or right or taking such
other action until such written instructions are received and (C) shall
be protected in conclusively relying on or acting in accordance with
such written instructions.
(xi) The Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee in its
Corporate Trust Office has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee from the Company
or any Security holder, and such notice references the Securities and
this Indenture.
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(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 to act 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.
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 representations as to the
validity or sufficiency of this Guarantee.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times 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 other 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
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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 GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor. If a Guarantee Event
of Default has occurred and is continuing, the Guarantee Trustee may be
appointed or removed by the Holders of a Majority in Liquidation Amount of the
Trust Preferred Securities.
(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 appointed to office shall hold such 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 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may 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 owing for fees and reimbursement of expenses
which have accrued to the date of such termination, removal or resignation.
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ARTICLE 5
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 Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders. Notwithstanding anything to the
contrary herein, the Guarantor retains all of its rights under the Indenture to
extend the interest payment period on the Junior Subordinated Debentures
pursuant to Section 2.10 thereof and the Guarantor shall not be obligated
hereunder to make any Guarantee Payments during any Extension Period (as defined
in the certificate evidencing the Junior Subordinated Debentures) with respect
to the Distributions (as defined in the Trust Agreement) on the Securities.
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 Trust or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall be absolute and unconditional and shall remain in
full force and effect until the entire liquidation amount of all outstanding
Securities shall have been paid and such obligation shall in no way be affected
or impaired by reason of the happening from time to time of any event, including
without limitation, the following, whether or not with notice to, or the consent
of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the 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, Liquidation
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Distribution or other sum payable that results from the extension of any
interest payment period on the Junior Subordinated Debentures permitted by the
Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the a sets of
the Trust;
(e) Any invalidity of, or defect or deficiency in, the Securities;
(f) The settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, 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 Guarantee Trustee or the Holders
to give notice to, or obtain consent of the Guarantor or any other Person 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 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 at least 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 Guarantee Trustee
in respect of this Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Guarantee, provided, that,
subject to Section 3.1, the Guarantee Trustee shall have the right to decline to
follow any such direction if the Guarantee Trustee shall determine that the
action so directed would be unjustly prejudicial to the Holders not taking part
in such direction or if the Guarantee Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the 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 of the
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Guarantee Trustee shall determine that the action or proceedings so directed
would involve the Guarantee Trustee in personal liability.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then
any Holder of Securities may, subject to the subordination provisions of Section
6.2, 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 Trust, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder of Securities may, subject to the subordination provisions of Section
6.2, directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the principal
of or interest on the Junior Subordinated Debentures on or after the respective
due dates specified in the Junior Subordinated Debentures, and the amount of the
payment will be based on the Holder's pro rata share of the amount due and owing
on all of the Securities. The Guarantor hereby waives any right or remedy to
require that any action on this Guarantee be brought first against the Trust or
any other person or entity 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 of Trust Preferred Securities against the Trust 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 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 Trust 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 5.3(a) through 5.3(g),
inclusive, hereof.
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ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Securities remain outstanding, if (i) there shall
have occurred an event of default under the Indenture with respect to the Junior
Subordinated Debentures, (ii) there shall be a Guarantee Event of Default or
(iii) the Guarantor shall have given notice of its election of an Extension
Period as provided in the certificate evidencing the Junior Subordinated
Debentures and shall not have rescinded such notice, or such Extension Period or
any extension thereof shall be continuing, then the Guarantor shall not, and
shall not permit any subsidiary of the Guarantor, to (x) 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 or (y)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor that rank on a parity
with or junior in interest to the Junior Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Guarantor of the debt
securities of any subsidiary of the Guarantor if such guarantee ranks on a
parity with or junior in interest to the Junior Subordinated Debentures (other
than (a) dividends or distributions in common stock of the Guarantor, (b) any
declaration of a dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under this Guarantee, and (d) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's benefit plans).
SECTION 6.2 RANKING.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Company (as defined in the Indenture) of the Guarantor in
the same manner and to the same extent as set forth in Article XIV of the
Indenture.
SECTION 6.3 SUBORDINATION OF COMMON SECURITIES.
If a Trust Enforcement Event has occurred and is continuing under
the Trust Agreement, the rights of the holders of the Common Securities to
receive Guarantee Payments hereunder shall be subordinated to the rights of the
Holders of the Trust Preferred Securities to receive Guarantee Payments under
this Guarantee.
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ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate upon (i) full payment of the
Redemption Price of all Securities, (ii) distribution of the Junior Subordinated
Debentures to the Holders of all the Securities or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of the
Trust. 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
of Securities must restore payment of any sums paid under the Securities or
under this Guarantee.
ARTICLE 8
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, liability, expense 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 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 Securities might properly be paid.
SECTION 8.2 COMPENSATION, EXPENSES AND INDEMNIFICATION.
(a) The Guarantor agrees to pay to the Guarantee Trustee from time
to time 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 to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances (including the reasonable fees and expenses of its
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attorneys and agents) incurred or made by the Guarantee Trustee in accordance
with any provision of this Guarantee.
(b) The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against any loss, liability 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.
(c) The obligations of the Guarantor under this Section 8.2 shall
survive the termination of this Guarantee.
ARTICLE 9
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 of the Securities then
outstanding. Except in connection with a consolidation, merger, sale or
conveyance involving the Guarantor that is permitted by Article XI of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee may not be amended without the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Trust Preferred
Securities. The provisions of Section 11.2 of the Trust Agreement with respect
to meetings of, and action by written consent of, the Holders of the Securities
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,
telecopied or mailed by registered or certified mail, as follows:
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(a) 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 Guarantor and the Holders of the Securities):
The Chase Manhattan Bank
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Fax: (000) 000-0000/60
(b) If given to the Guarantor, at the Guarantor's mailing
addresses set forth below (or such other address as the Guarantor may give
notice of to the Guarantee Trustee and the Holders of the Securities):
Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
(c) If given to any Holder of Securities, at the address set forth
on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Guarantee is solely for the benefit of the Holders of the
Securities 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 LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT
OF LAWS PRINCIPLES.
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IN WITNESS WHEREOF, this Guarantee is executed as of the day and
year first above written.
XXXXXX CORPORATION,
as Guarantor
By: _____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By: _____________________________________
Name:
Title:
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