EXHIBIT 4.11
=====================================================================
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
EQUITABLE OF IOWA COMPANIES CAPITAL TRUST II
Dated as of __________, 1997
=====================================================================
CROSS REFERENCE TABLE*
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(c)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
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)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6; 5.4(a)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.10; 5.4
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
______________________
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not have any bearing upon the interpretation of any of
its terms or provisions.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
SECTION 2.2 Lists of Holders of Securities
SECTION 2.3 Reports by Capital Securities Guarantee Trustee
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee
SECTION 2.5 Evidence of Compliance with Conditions Precedent
SECTION 2.6 Guarantee Event of Default; Waiver
SECTION 2.7 Guarantee Event of Default; Notice
SECTION 2.8 Conflicting Interests
SECTION 2.9 Disclosure of Information
SECTION 2.10 Preferred Guarantee Trustee May File Proofs of Claim
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Capital Securities Guarantee Trustee
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Securities
Guarantee
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
SECTION 4.2 Appointment, Removal and Resignation of
Capital Securities Guarantee Trustee
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
SECTION 5.2 Waiver of Notice and Demand
SECTION 5.3 Obligations Not Affected
SECTION 5.4 Rights of Holders
SECTION 5.5 Guarantee of Payment
SECTION 5.6 Subrogation
SECTION 5.7 Independent Obligations
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
SECTION 6.2 Ranking
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
SECTION 8.2 Indemnification
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
SECTION 9.2 Amendments
SECTION 9.3 Notices
SECTION 9.4 Benefit
SECTION 9.5 Execution in Counterparts
SECTION 9.6 Governing Law
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"), dated as
of __________, 1997, is executed and delivered by Equitable of Iowa
Companies, an Iowa corporation (the "Guarantor"), and The First National Bank
of Chicago, as trustee (the "Capital Securities Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Series B
Capital Securities (as defined herein) of Equitable of Iowa Companies Capital
Trust II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to the Declaration (as defined herein), the Issuer has
issued 50,000 capital securities, having an aggregate liquidation amount of
$50,000,000, such capital securities being designated the 8.424% Series A
Capital Securities (the "Series A Capital Securities") representing preferred
undivided beneficial interests in the assets of the Issuer and having the
terms set forth in the Declaration.
WHEREAS, as an incentive to purchase the Series A Capital Securities,
the Guarantor irrevocably and unconditionally agreed, to the extent set forth
in the Series A Capital Securities Guarantee Agreement dated as of April 3,
1997 (the "Old Guarantee Agreement") between the Guarantor and Capital
Securities Guarantee Trustee, for the benefit of the holders of the Series A
Capital Securities, to pay to the holders of the Series A Capital Securities
the Guarantee Payments (as defined in the Old Guarantee Agreement) (the "Old
Guarantee").
WHEREAS, pursuant to the Registration Rights Agreement (as defined
herein), the Guarantor and the Issuer agreed that if the Guarantor and Issuer
file a registration statement (the "Registration Statement") to exchange the
Series A Capital Securities for a like amount of the Issuer's new capital
securities designated the 8.424% Series B Capital Securities (the "Series B
Capital Securities"), then the Guarantor and Issuer would simultaneously
include in the Registration Statement an offer to exchange the Old Guarantee
for the Guarantee (as defined herein) for the benefit of the Holders of the
Series B Capital Securities.
WHEREAS, pursuant to the Registration Rights Agreement, the Guarantor
and the Issuer now wish to exchange the Old Guarantee for the Guarantee for
the benefit of the Holders of the Series B Capital Securities.
WHEREAS, the Old Guarantee will remain outstanding and continue to apply
to any Series A Capital Securities to the extent that any Series A Capital
Securities remain outstanding upon completion of the exchange offer.
WHEREAS, the Guarantee is substantially identical to the Old Guarantee
except that the Guarantee has been registered pursuant to the Registration
Statement under the Securities Act of 1933, as amended (the "Securities
Act"), and the Guarantee will not contain provisions restricting transfer in
the absence of registration under the Securities Act.
WHEREAS, as required by the Registration Rights Agreement, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth
herein, to pay to the Holders of the Series B Capital Securities the
Guarantee Payments (as defined herein).
NOW, THEREFORE, as required by the Registration Rights Agreement, the
Guarantor executes and delivers this Capital Securities Guarantee and,
pursuant to Section 5.1 hereof, extends the Guarantee for the benefit of the
Holders from time to time of the Series B Capital Securities.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Capital Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution of
this Capital Securities Guarantee have the same meaning when used in
this Capital Securities Guarantee unless otherwise defined in this
Capital Securities Guarantee;
(c) a term defined anywhere in this Capital Securities Guarantee has
the same meaning throughout;
(d) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee
as modified, supplemented or amended from time to time;
(e) all references in this Capital Securities Guarantee to Articles and
Sections are to Articles and Sections of this Capital Securities
Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Capital Securities Guarantee, unless otherwise defined in
this Capital Securities Guarantee or unless the context otherwise
requires; and
(g) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 under
the Securities Act of 1933, as amended, or any successor rule thereunder.
"BUSINESS DAY" means any day other than a Saturday or a Sunday, or a day
on which banking institutions in New York, New York are authorized or
required by law or executive order to close.
"CAPITAL SECURITIES GUARANTEE TRUSTEE" means The First National Bank of
Chicago, until a Successor Capital Securities Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Capital Securities Guarantee and thereafter means each such Successor Capital
Securities Guarantee Trustee.
"COMMON SECURITIES" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"CORPORATE TRUST OFFICE" means the office of the Capital Securities
Guarantee Trustee at which the corporate trust business of the Capital
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Capital
Securities Guarantee is located at One First Xxxxxxxx Xxxxx - Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services Division;
telecopy no. (000) 000-0000.
"COVERED PERSON" means any Holder or beneficial owner of Series B
Capital Securities.
"DEBENTURES" means the series of subordinated deferrable interest
debentures issued by the Guarantor designated the 8.424% Series B
Subordinated Deferrable Interest Debentures due April 1, 2027 held by the
Property Trustee (as defined in the Declaration) of the Issuer.
"DECLARATION" means the Amended and Restated Declaration of Trust, dated
as of March 31, 1997, as amended, modified or supplemented from time to time,
among the trustees of the Issuer, the Guarantor, as sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the
Issuer.
"GUARANTEE" has the meaning set forth in Section 5.1.
"GUARANTEE EVENT OF DEFAULT" means a default by the Guarantor on any of
its payment or other obligations under this Capital Securities Guarantee.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Series B Capital Securities, to the
extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Series B Capital Securities to the extent the Issuer has funds legally
available therefor at such time, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price") to the extent the Issuer has funds legally available
therefor at such time, with respect to any Series B Capital Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
termination and liquidation of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Series B Capital
Securities as provided in the Declaration), the lesser of (a) the aggregate
of the liquidation amount and all accumulated and unpaid Distributions on the
Series B Capital 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 (in either case, the "Liquidation Distribution"). If an Event of
Default (as defined in the Indenture) has occurred and is continuing, no
guarantee payments under the Common Securities Guarantee with respect to the
Common Securities or any guarantee payment under Other Common Securities
Guarantees shall be made until the Holders of the Series B Capital Securities
shall be paid in full the Guarantee Payments to which they are entitled under
this Capital Securities Guarantee.
"HOLDER" shall mean any holder, as registered on the books and records
of the Issuer, of any Series B Capital Securities; provided, however, that,
in determining whether the holders of the requisite percentage of Series B
Capital Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor; and provided further, that in determining whether the Holders of
the requisite liquidation amount of Series B Capital Securities have voted on
any matter provided for in this Capital Securities Guarantee, then for the
purpose of such determination only (and not for any other purpose hereunder),
if the Series B Capital Securities remain in the form of one or more Global
Capital Security certificates (as defined in the Declaration), the term
"Holders" shall mean the holder of the Global Capital Security certificate
acting at the direction of the Capital Security Beneficial Owners (as defined
in the Declaration).
"INDEMNIFIED PERSON" means the Capital Securities Guarantee Trustee, any
Affiliate of the Capital Securities Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Capital Securities Guarantee Trustee.
"INDENTURE" means the Indenture dated as of March 31, 1997, among the
Guarantor (the "Debenture Issuer") and The First National Bank of Chicago, as
trustee, and any indenture supplemental thereto pursuant to which the
Debentures have been issued to the Property Trustee (as defined in the
Declaration) of the Issuer.
"MAJORITY IN LIQUIDATION AMOUNT OF THE SERIES B CAPITAL SECURITIES"
means, except as provided by the Trust Indenture Act, a vote by the Holder(s)
of more than 50% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all Series B Capital Securities. In
determining whether the Holders of the requisite amount of Series B Capital
Securities have voted, Series B Capital Securities which are owned by the
Guarantor or any Affiliate of the Guarantor or any other obligor on the
Series B Capital Securities shall be disregarded for the purpose of any such
determination.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a certificate
signed by two Authorized Officers (as defined in the Declaration) of such
Person. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Capital Securities Guarantee
(other than pursuant to Section 314(a)(4) of the Trust Indenture Act) shall
include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the 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.
"OTHER COMMON SECURITIES GUARANTEES" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"OTHER DEBENTURES" means all subordinated debentures issued, or to be
issued, by the Guarantor to trusts established, or to be established, by the
Guarantor, in each case similar to the Issuer, including, without limitation,
the Guarantor's 8.70% Subordinated Deferrable Interest Debentures due July
30, 2026 issued by Guarantor on July 23, 1996 to Equitable of Iowa Companies
Capital Trust in the principal amount of $128,866,000.
"OTHER GUARANTEES" means all guarantees issued, or to be issued, by the
Guarantor with respect to capital or other securities similar to the Series B
Capital Securities issued by other trusts established, or to be established,
by the Guarantor, in each case similar to the Issuer, including, without
limitation, the Preferred Securities Guarantee Agreement issued by the
Guarantor with respect to $125,000,000 of 8.70% Trust Originated Preferred
Securities due July 30, 2026 issued by Equitable of Iowa Companies Capital
Trust on July 23, 1996.
"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.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of April 3, 1997, by and among the Guarantor, the Issuer and the
Initial Purchaser named therein, as such agreement may be amended, modified
or supplemented from time to time.
"RESPONSIBLE OFFICER" means, with respect to the Capital Securities
Guarantee Trustee, any officer within the Corporate Trust Office of the
Capital Securities Guarantee Trustee, including any vice-president, any
assistant vice-president, any secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer, any senior trust
officer or other officer of the Corporate Trust Office of the Capital
Securities Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"SUCCESSOR CAPITAL SECURITIES GUARANTEE TRUSTEE" means a successor
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.1.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"TRUST SECURITIES" means the Common Securities and the Series A Capital
Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Capital Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Capital
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Capital Securities
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 Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Capital Securities) with a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") (i) within one Business Day
after January 1 and June 30 of each year and current as of such date, and
(ii) at any other time, within 30 days of receipt by the Guarantor of a
written request for a List of Holders as of a date no more than 14 days
before such List of Holders is given to the Capital Securities Guarantee
Trustee; provided, that the Guarantor shall not be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Capital Securities Guarantee Trustee by
the Guarantor. The Capital Securities 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 it may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by Capital Securities Guarantee Trustee.
Within 60 days after May 15 of each year, commencing in the year of the
first anniversary of the issuance of the Series B Capital Securities, the
Capital Securities Guarantee Trustee shall provide to the Holders 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
Capital Securities Guarantee Trustee shall also comply with the requirements
of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee.
The Guarantor shall provide to the Capital Securities Guarantee Trustee
such documents, reports and information as required by Section 314 (if any)
of the Trust Indenture Act and the compliance certificate required by Section
314 of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, provided that such
compliance certificate shall be delivered on or before 120 days after the end
of each fiscal year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Capital Securities Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided
for in this Capital Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Guarantee Event of Default; Waiver.
The Holders of a Majority in liquidation amount of Series B Capital
Securities may, by vote, on behalf of all the Holders, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any such
Guarantee Event of Default shall cease to exist, and any Guarantee Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Capital Securities Guarantee, but no such waiver shall extend
to any subsequent or other default or Guarantee Event of Default or impair
any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice.
(a) The Capital Securities Guarantee Trustee shall, within five
Business Days after the occurrence of a Guarantee Event of Default is
actually known to a Responsible Officer of the Capital Securities Guarantee
Trustee, mail, by first class postage prepaid, to all Holders, notices of all
such defaults, 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 Capital Securities Guarantee Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Capital Securities Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Series B Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Guarantee Event of Default unless the Capital
Securities Guarantee Trustee shall have received written notice from the
Guarantor or a Holder, or a Responsible Officer of the Capital Securities
Guarantee Trustee charged with the administration of this Capital Securities
Guarantee shall have obtained actual knowledge, of such Guarantee Event of
Default.
SECTION 2.8 Conflicting Interests.
The Declaration shall be deemed to be specifically described in this
Capital Securities 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 Series B Capital 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 Capital Securities 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 Capital Securities Guarantee Trustee May File Proofs of Claim.
Upon the occurrence of a Guarantee Event of Default, the Capital
Securities 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 Series
B Capital Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Capital Securities Guarantee Trustee.
(a) This Capital Securities Guarantee shall be held by the Capital
Securities Guarantee Trustee for the benefit of the Holders, and the Capital
Securities Guarantee Trustee shall not transfer this Capital Securities
Guarantee to any Person except a Holder exercising his or her rights pursuant
to Section 5.4(b) or to a Successor Capital Securities Guarantee Trustee on
acceptance by such Successor Capital Securities Guarantee Trustee of its
appointment to act as Successor Capital Securities Guarantee Trustee. The
right, title and interest of the Capital Securities Guarantee Trustee in and
to this Capital Securities Guarantee shall automatically vest in any
Successor Capital Securities 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 Capital Securities Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee has occurred and is
continuing, the Capital Securities Guarantee Trustee shall enforce this
Capital Securities Guarantee for the benefit of the Holders.
(c) The Capital Securities Guarantee Trustee, before the occurrence of
any Guarantee Event of Default and after the curing or waiving of all
Guarantee Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Capital
Securities Guarantee, and no implied covenants shall be read into this
Capital Securities Guarantee against the Capital Securities Guarantee
Trustee. In case a Guarantee Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Capital Securities Guarantee, and use the same degree of
care and skill in its exercise thereof, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Capital Securities Guarantee shall be
construed to relieve the Capital Securities 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 Capital Securities Guarantee
Trustee shall be determined solely by the express provisions of this
Capital Securities Guarantee, and the Capital Securities Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Capital Securities Guarantee, and no implied covenants or
obligations shall be read into this Capital Securities Guarantee
against the Capital Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital Securities 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 Capital Securities
Guarantee Trustee and conforming to the requirements of this
Capital Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Capital Securities
Guarantee Trustee, the Capital Securities Guarantee Trustee shall
be under a duty to examine the same to determine whether or not
they conform to the requirements of this Capital Securities
Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Capital Securities Guarantee Trustee, unless it shall be proved that
the Capital Securities Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Capital Securities 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 Series B Capital Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Capital Securities Guarantee Trustee, or exercising any
trust or power conferred upon the Capital Securities Guarantee Trustee
under this Capital Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee shall require
the Capital Securities Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Capital Securities 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 Capital Securities Guarantee or
indemnity, reasonably satisfactory to the Capital Securities Guarantee
Trustee, against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities 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 Capital
Securities Guarantee shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Capital Securities
Guarantee, the Capital Securities Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request, shall
be entitled to receive and may conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor.
(iv) The Capital Securities Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Capital Securities Guarantee Trustee may consult with counsel
of its selection, and the advice or opinion of such counsel with respect
to legal matters shall be full and 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 Capital Securities Guarantee Trustee shall have
the right at any time to seek instructions concerning the administration
of this Capital Securities Guarantee from any court of competent
jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Capital Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Capital Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Capital
Securities 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 Capital Securities Guarantee Trustee; provided, that nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
Capital Securities 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 Capital Securities Guarantee.
(vii) The Capital Securities 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 Capital Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee or
its agents hereunder shall bind the Holders, and the signature of the
Capital Securities 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 Capital Securities
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Capital Securities Guarantee, both of which shall
be conclusively evidenced by the Capital Securities Guarantee Trustee's
or its agent's taking such action.
(x) Whenever in the administration of this Capital Securities Guarantee
the Capital Securities Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Capital Securities Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the Series B Capital Securities, (ii) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(b) No provision of this Capital Securities Guarantee shall be deemed
to impose any duty or obligation on the Capital Securities 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 Capital Securities 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, or which would
expose the Capital Securities Guarantee Trustee to liability, financial or
otherwise. No permissive power or authority available to the Capital
Securities Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Securities
Guarantee.
The recitals contained in this Capital Securities Guarantee shall be
taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any responsibility for their correctness.
The Capital Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
Section 4.1 Capital Securities Guarantee Trustee; Eligibility.
(a) There shall at all times be a Capital Securities 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 Capital Securities Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and Guarantor shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject only to the penultimate paragraph thereof.
Section 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Capital Securities Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor except
during a Guarantee Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Capital Securities Guarantee Trustee
and delivered to the Guarantor.
(c) The Capital Securities Guarantee Trustee shall hold office until a
Successor Capital Securities Guarantee Trustee shall have been appointed or
until its removal or resignation. The Capital Securities Guarantee Trustee
may resign from office (without need for prior or subsequent accounting) by
an instrument in writing executed by the Capital Securities Guarantee Trustee
and delivered to the Guarantor, which resignation shall not take effect until
a Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guarantor and the
resigning Capital Securities Guarantee Trustee.
(d) If no Successor Capital Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery of an instrument of removal or resignation,
the Capital Securities Guarantee Trustee resigning or being removed may
petition any court of competent jurisdiction for appointment of a Successor
Capital Securities Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Capital Securities Guarantee Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee
Trustee.
(f) Upon termination of this Capital Securities Guarantee or removal or
resignation of the Capital Securities Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all amounts due to the Capital Securities Guarantee Trustee accrued
to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
Section 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert other
than the defense of payment (the "Guarantee"). The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
Section 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Capital
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands. Notwithstanding anything to
the contrary herein, the Guarantor retains all of its rights under the
Indenture to extend the interest payment period on the Debentures (in
accordance with the terms of the Indenture) and the Guarantor shall not be
obligated hereunder to make any Guarantee Payments during any Extended
Interest Payment Period (as defined in the Indenture) with respect to the
Distributions (as defined in the Declaration) on the Series B Capital
Securities.
Section 5.3 Obligations Not Affected.
Except as otherwise provided herein, the obligations, covenants,
agreements and duties of the Guarantor under this Capital Securities
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Series B Capital
Securities to be performed or observed by the Issuer;
(b) The extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Series B Capital
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series B
Capital Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of
the 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 Series B Capital Securities, or
any action on the part of the Issuer granting indulgence or extension of
any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) Any invalidity of, or defect or deficiency in, the Series B Capital
Securities;
(f) The settlement or compromise of any obligation guaranteed hereby or
hereby incurred;
(g) The consummation of the Exchange Offer; or
(h) Any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor with
respect to the Guarantee Payments shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Capital Securities Guarantee Trustee
or 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 shall be available hereunder to the Guarantor against such Holder
to reduce the payments to it under this Capital Securities Guarantee.
SECTION 5.4 Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the Series B
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Capital Securities
Guarantee Trustee in respect of this Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Capital Securities Guarantee.
(b) If the Capital Securities Guarantee Trustee fails to enforce this
Capital Securities Guarantee, any Holder may institute a legal proceeding
directly against the Guarantor to enforce the Capital Securities Guarantee
Trustee's rights under this Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Capital Securities
Guarantee Trustee or any other person or entity. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder
may directly institute a proceeding against the Guarantor for enforcement of
this Capital Securities Guarantee for such payment to the Holder, 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 Series B Capital Securities. The
Guarantor hereby waives any right or remedy to require that any action on
this Capital Securities Guarantee be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
This Capital Securities Guarantee creates a guarantee of payment and not
of collection.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Capital Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any right that it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Capital Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid under this
Capital Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount
in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Series B
Capital Securities, and that the Guarantor shall be liable as principal and
as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Capital Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Series B Capital Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Guarantor's capital stock (which includes common, preferred and
preference stock), (ii) make any payment of principal, interest, or premium,
if any, 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 (iii) make any guarantee payments with respect
to any guarantee by the Guarantor of any securities of any subsidiary of the
Guarantor (including Other Guarantees) if such guarantee ranks pari passu with
or junior in right of payment to the Debentures (other than (a) dividends or
distributions in shares of or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholder's 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
Capital Securities Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of capital
stock following, a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock or pursuant to an
acquisition in which fractional shares of the Guarantor's capital stock would
otherwise be issued, (e) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common stock or rights
under any benefit plan for directors, officers, agents or employees of the
Guarantor or its subsidiaries or any of the Guarantor's dividend reinvestment
or director, officer, agent or employee stock purchase plans), if at such time
(i) an Event of Default (as defined in the Indenture) shall have occurred and
be continuing, or would occur upon the taking of any action specified in
clauses (i) through (iii) above, (ii) there shall have occurred any event of
which the Guarantor has actual knowledge that (a) is, or with the giving of
notice or the lapse of time, or both, would be an Event of Default (as defined
in the Indenture) and (b) in respect of which the Guarantor shall not have
taken reasonable steps to cure, (iii) the Guarantor shall be in default with
respect to its payment of any obligations under this Capital Securities
Guarantee or (iv) the Guarantor shall have given notice of its election of
the exercise of its right to extend the interest payment period pursuant to
Section 16.01 of the Indenture or with respect to any Other Debentures of the
Guarantor and any such extension shall be continuing.
SECTION 6.2 Ranking.
This Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all 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, it being understood that the
terms of Article XV of the Indenture shall apply to the obligations of the
Guarantor under this Capital Securities Guarantee as if (x) such Article XV
were set forth herein in full and (y) such obligations were substituted for
the term "Securities" appearing in such Article XV, (ii) subordinate and
junior in right of payment to all other liabilities of the Guarantor, except
those liabilities of the Guarantor made pari passu or subordinate by their
terms, (iii) pari passu with the Old Guarantee and with the most senior
preferred or preference stock now or hereafter issued by the Guarantor and
with any Other Guarantee and any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred or preference stock of any
Affiliate of the Guarantor, and (iv) senior to the Guarantor's common stock.
If an Event of Default (as defined in the Indenture) has occurred and is
continuing, the rights of the holders of the Common Securities to receive any
payments under the Common Securities Guarantee shall be subordinated to the
rights of the Holders to receive the Guarantee Payments hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Capital Securities Guarantee shall terminate (i) upon full payment
of the Redemption Price of all Series B Capital Securities, or (ii) upon
liquidation of the Issuer, the full payment of the amounts payable in
accordance with the Declaration or the distribution of the Debentures to the
Holders of all of the Series B Capital Securities. Notwithstanding the
foregoing, this Capital Securities 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 Series B Capital Securities or
under this Capital Securities Guarantee.
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
Capital Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Capital Securities Guarantee or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters
the Indemnified Person reasonably believes are within such other Person's
professional or expert competence, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The provisions of this
Section 8.2 shall survive the termination of this Capital Securities
Guarantee or the resignation or removal of the Capital Securities Guarantee
Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Capital Securities
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 Capital Securities Guarantee may only be amended with the
prior approval of the Holders of a Majority in liquidation amount of the
Series B Capital Securities. The provisions of the Declaration with respect
to consents to amendments thereof (whether at a meeting or otherwise) shall
apply to the giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Capital Securities Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below
(or such other address as the Capital Securities Guarantee Trustee may
give notice of to the Guarantor, the Holders and the Issuer):
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Services Division
Telecopy No. (000) 000-0000
(b) If given to the Guarantor, at the Guarantor's mailing address forth
below (or such other address as the Guarantor may give notice of to the
Capital Securities Guarantee Trustee and the Holders of the Series B
Capital Securities):
Equitable of Iowa Companies
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telecopy No. (000) 000-0000
(c) If given to any Holder of Series B Capital Securities, at the
address set forth on the books and records of the Issuer.
(d) If given to the Issuer, in care of the Administrative Trustees 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 Capital Securities
Guarantee Trustee):
Equitable of Iowa Companies Capital Trust II
c/o Equitable of Iowa Companies
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telecopy No. (000) 000-0000
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 Capital Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from
the Series B Capital Securities.
SECTION 9.5 Execution in Counterparts.
This Capital Securities Guarantee may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
constitute but one and the same instrument.
SECTION 9.6 Governing Law.
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF IOWA, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, this Capital Securities Guarantee is executed as of
the day and year first above written.
EQUITABLE OF IOWA COMPANIES,
as Guarantor
By: _______________________________
Name:_____________________________
Title:______________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Capital Securities Guarantee Trustee
By: ________________________________
Name:______________________________
Title:_______________________________
[Signature Page to the Capital Securities Guarantee Agreement]
