EXHIBIT 4.20
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FORM OF PREFERRED SECURITIES GUARANTEE AGREEMENT
▇▇▇▇▇▇▇ COMPANY CAPITAL TRUST __
Dated as of _____________, 20___
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CROSS REFERENCE TABLE*
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
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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)
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* 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 INTERPRETATION AND DEFINITIONS..........................................................................1
SECTION 1.1 Interpretation and Definitions.........................................................1
ARTICLE II TRUST INDENTURE ACT....................................................................................4
SECTION 2.1 Trust Indenture Act; Application.......................................................4
SECTION 2.2 Lists of Holders of Preferred Securities...............................................4
SECTION 2.3 Reports by Preferred Guarantee Trustee.................................................5
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee........................................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent.......................................5
SECTION 2.6 Guarantee Event of Default; Waiver.....................................................5
SECTION 2.7 Guarantee Event of Default; Notice.....................................................5
SECTION 2.8 Conflicting Interests..................................................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE..............................................6
SECTION 3.1 Powers and Duties of Preferred Guarantee Trustee.......................................6
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.........................................11
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee.................................10
ARTICLE IV PREFERRED GUARANTEE TRUSTEE...........................................................................10
SECTION 4.1 Preferred Guarantee Trustee; Eligibility..............................................11
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee...................11
ARTICLE V GUARANTEE..............................................................................................12
SECTION 5.1 Guarantee.............................................................................12
SECTION 5.2 Waiver of Notice and Demand...........................................................12
SECTION 5.3 Obligations Not Affected..............................................................12
SECTION 5.4 Rights of Holders.....................................................................13
SECTION 5.5 Guarantee of Payment..................................................................14
SECTION 5.6 Subrogation...........................................................................14
SECTION 5.7 Independent Obligations...............................................................14
SECTION 5.8 Waiver Under Indenture and Declaration................................................14
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.............................................................14
SECTION 6.1 Limitation of Transactions............................................................14
SECTION 6.2 Ranking...............................................................................15
ARTICLE VII TERMINATION..........................................................................................15
SECTION 7.1 Termination...........................................................................15
ARTICLE VIII INDEMNIFICATION.....................................................................................15
SECTION 8.1 Exculpation...........................................................................15
SECTION 8.2 Indemnification.......................................................................16
ARTICLE IX INTENTIONALLY OMITTED.................................................................................16
ARTICLE X MISCELLANEOUS..........................................................................................16
SECTION 10.1 Successors and Assigns................................................................16
SECTION 10.2 Amendments............................................................................16
SECTION 10.3 Notices...............................................................................16
SECTION 10.4 Benefit...............................................................................17
SECTION 10.5 Governing Law.........................................................................17
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FORM OF PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of ________________, 20___ is executed and delivered by ▇▇▇▇▇▇▇ Company, a
Delaware corporation (the "Guarantor"), and [_______________________], as
trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of ▇▇▇▇▇▇▇ Company Capital Trust __, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to the Declaration (as defined herein), the Issuer is
issuing up to [_____________] preferred securities, having an aggregate
liquidation amount of [$____________] designated the [____%] Preferred
Securities (the "Preferred Securities").
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1 or as otherwise defined herein;
(b) a term defined anywhere in this Preferred Securities Guarantee has
the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee unless otherwise defined in this
Preferred Securities Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"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.
"Base Indenture" means the Indenture dated _____________, 20___ among
the Guarantor (the "Debenture Issuer") and [_______________________], as
trustee.
"Business Day" means any day other than a day on which banking
institutions in [____________] or in the city of the Corporate Trust Office are
authorized or required by law to close.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Preferred Securities Guarantee is located at
[__________________________________] Attention: [________________].
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of subordinated debentures to be issued
by the Guarantor designated the [____%] Subordinated Debentures due [_____] 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 ________________, 20___ as amended, modified or supplemented from
time to time, among the trustees of the Issuer named therein, the Guarantor, as
sponsor, and the Holders from time to time of undivided beneficial interests in
the assets of the Issuer.
"Guarantee Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on the Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
the Issuer (other than in connection with the distribution of Debentures to the
Holders in exchange for Preferred Securities as provided in the
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Declaration or the redemption of all the Preferred Securities upon maturity or
redemption of the Debentures as provided in the Declaration), the lesser of (a)
the aggregate of the liquidation amount and all accrued and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer
shall have funds available therefor or (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 Declaration) has occurred and is continuing, the rights of holders of the
Common Securities to receive payments are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor; provided
further, that in determining whether the Holders of the requisite liquidation
amount of Preferred Securities have voted on any matter provided for in this
Preferred Securities Guarantee, then for the purpose of such determination only
(and not for any other purpose hereunder), if the Preferred Securities remain in
the form of one or more Global Certificates (as defined in the Declaration), the
term "Holders" shall mean the holder of the Global Certificate acting at the
direction of the Preferred Security Beneficial Owners (as defined in the
Declaration).
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Base Indenture and any indenture supplemental
thereto pursuant to which the Debentures are to be issued to the Property
Trustee (as defined in the Declaration) of the Issuer.
"Majority in Liquidation Amount of the Preferred Securities" means,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Preferred Securities, voting separately
as a class, who are the record holders of more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Preferred Securities. In determining whether the Holders of the requisite amount
of Preferred Securities have voted, Preferred Securities which are owned by the
Guarantor or any Affiliate of the Guarantor or any other obligor on the
Preferred Securities shall be disregarded (to the extent known to be so owned by
the Preferred Guarantee Trustee) 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 Preferred Securities Guarantee
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
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examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (d) a statement as to whether,
in the opinion of each such officer, such condition or covenant has been
complied with.
"Person" means 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.
"Preferred Guarantee Trustee" means [_______________________] until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer whose principal office is the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice-president, any assistant
vice-president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer or other officer whose principal office is the Corporate
Trust Office of the Preferred 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 Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred 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.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Preferred
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 Preferred Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Preferred Securities ("List of
Holders"), (i) within ten Business Days after
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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 from
the Preferred Guarantee Trustee for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Guarantee Trustee;
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time when the List of Holders does not differ from the most
recent List of Holders given to the Preferred Guarantee Trustee by the
Guarantor. The Preferred 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 Preferred Guarantee Trustee shall comply with its obligations
under Section 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by Preferred Guarantee Trustee. Within 60 days
after __________of each year (commencing with the year of the first anniversary
of the issuance of the Preferred Securities), the Preferred Guarantee Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee. The
Guarantor shall provide to the Preferred Guarantee Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this Preferred
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6 Guarantee Event of Default; Waiver. The Holders of a
Majority in Liquidation Amount of the Preferred Securities may, by vote, on
behalf of the Holders of all of the 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 Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any right
consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of a Guarantee Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities, notices of all
Guarantee Events of Default actually known to a Responsible
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Officer of the Preferred Guarantee Trustee, unless such defaults have been cured
before the giving of such notice; provided, that the Preferred Guarantee Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Preferred Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Preferred
Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Guarantee Event of Default unless the Preferred Guarantee
Trustee shall have received written notice thereof, or a Responsible Officer of
the Preferred Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge thereof.
SECTION 2.8 Conflicting Interests. The Declaration shall be deemed to
be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee on behalf of the Issuer for the benefit of the Holders of the
Preferred Securities, and the Preferred Guarantee Trustee shall not transfer
this Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising the rights of such Holder pursuant to Section 5.4(b) or to
a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee in and to this Preferred Securities Guarantee shall automatically vest
in any Successor Preferred Guarantee Trustee, and such vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor Preferred
Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders of the Preferred Securities.
(c) The Preferred 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 Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred Securities Guarantee against
the Preferred Guarantee Trustee. In case a Guarantee Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Preferred Securities Guarantee, and use the same degree of care
and skill in its exercise thereof, as a prudent individual would exercise or use
under the circumstances in the conduct of his or her own affairs.
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(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such
Guarantee Events of Default that may have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely
by the express provisions of this Preferred
Securities Guarantee, and the Preferred
Guarantee Trustee shall not be liable except
for the performance of such duties and
obligations as are specifically set forth in
this Preferred Securities Guarantee, and no
implied covenants or obligations shall be
read into this Preferred Securities
Guarantee against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of
the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and
the correctness of the opinions expressed
therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee
and conforming to the requirements of this
Preferred 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
Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Preferred Guarantee
Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be
taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority
in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust
or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee;
and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to
expend or risk its own funds or otherwise incur
personal financial liability in the performance of
any of its duties or
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in the exercise of any of its rights or powers, if
there are reasonable grounds for believing that the
repayment of such funds or liability is not
reasonably assured to the Preferred Guarantee Trustee
under the terms of this Preferred Securities
Guarantee or indemnity, reasonably satisfactory to
the Preferred Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or
refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine
and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any
action hereunder, the Preferred 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 Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (or any rerecording, refiling or
reregistration thereof).
(v) Before the Preferred Guarantee Trustee acts or
refrains from acting, the Preferred Guarantee Trustee
may consult with counsel and the written advice or
opinion of such counsel with respect to legal matters
shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The
Preferred Guarantee Trustee shall have the right at
any time to seek instructions concerning the
administration of this Preferred Securities Guarantee
from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Preferred Securities Guarantee
at the request or direction of any Holder, unless
such Holder
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shall have offered to the Preferred Guarantee Trustee
such security and indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against the
costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee
Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the
Preferred Guarantee Trustee; provided that nothing
contained in this Section 3.2(a)(vi) shall be taken
to relieve the Preferred Guarantee Trustee, upon the
occurrence of a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested
in it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Preferred Guarantee Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may
see fit.
(viii) The Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders of the
Preferred Securities, and the signature of the
Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such
action. No third party shall be required to inquire
as to the authority of the Preferred Guarantee
Trustee to so act or as to its compliance with any of
the terms and provisions of this Preferred Securities
Guarantee, both of which shall be conclusively
evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee
shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking
any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders
of a Majority in Liquidation Amount of the Preferred
Securities, (ii) may refrain from enforcing such
remedy or right or taking such other action until
such instructions are received and (iii) shall be
protected in conclusively relying on or acting in
accordance with such instructions.
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(xi) The Preferred Guarantee Trustee shall not be required
to give any bond or surety in respect of the
performance of its powers and duties hereunder.
(xii) The permissive rights of the Preferred Guarantee
Trustee to do things enumerated in this Indenture
shall not be construed as a duty.
(b) No provision of this Preferred Securities Guarantee shall be deemed
to impose any duty or obligation on the Preferred Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Preferred 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 Preferred Securities Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Guarantee Trustee makes
no representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation or trust company 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 25 million U.S. dollars
($25,000,000), and subject to supervision or
examination by Federal, State, Territorial or
District of Columbia authority. If such corporation
or trust company 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 or trust company 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 Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
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(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) Any corporation into which the Preferred Guarantee Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Preferred
Guarantee Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Preferred Guarantee
Trustee, shall be a Successor Preferred Guarantee Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee (or
Successor Preferred Guarantee Trustee, as the case may be) may be appointed or
removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee (or Successor Preferred Guarantee
Trustee, as the case may be) shall not be removed in accordance with Section
4.2(a) until a Successor Preferred Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee (or Successor Preferred Guarantee
Trustee, as the case may be) appointed to office shall hold office until a
Successor Preferred Guarantee Trustee shall have been appointed or until its
removal or resignation. The Preferred Guarantee Trustee (or Successor Preferred
Guarantee Trustee, as the case may be) may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Preferred Guarantee Trustee (or Successor Preferred Guarantee Trustee, as the
case may be) and delivered to the Guarantor, which resignation shall not take
effect until a Successor Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Preferred Guarantee Trustee and delivered to the Guarantor and the resigning
Preferred Guarantee Trustee (or Successor Preferred Guarantee Trustee, as the
case may be).
(d) If no Successor Preferred 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 resignation, the
resigning Preferred Guarantee Trustee (or Successor Preferred Guarantee Trustee,
as the case may be) may petition any court of competent jurisdiction for
appointment of a Successor Preferred Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
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(f) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Preferred Guarantee Trustee (or Successor Preferred
Guarantee Trustee, as the case may be) pursuant to this Section 4.2, the
Guarantor shall pay to the Preferred Guarantee Trustee (or Successor Preferred
Guarantee Trustee, as the case may be) all amounts owing for fees and
reimbursement of expenses which have 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 the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, to the Holders of record as of
the date upon which such Guarantee Payments are due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Preferred Securities Guarantee and of any liability
to which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding 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 to (i) extend the interest payment period on the Debentures and the
Guarantor shall not be obligated hereunder to make any Guarantee Payments during
any extended interest payment period with respect to the Distributions (as
defined in the Declaration) on the Preferred Securities and (ii) redeem or
change the maturity date of the Debentures, in each case to the extent permitted
by the Indenture.
SECTION 5.3 Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall be absolute and unconditional and shall remain in full force and effect
until the entire liquidation amount of all outstanding Preferred 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 Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) The extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or
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other sum payable that results from the extension of any interest payment period
on the Debentures or any change to the maturity date of 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 Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) Any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) The settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, 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 Preferred 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 set-off, 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 Preferred Securities Guarantee.
SECTION 5.4 Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Preferred Securities Guarantee or to direct the exercise of any
trust or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce this Preferred
Securities Guarantee, then any Holder of Preferred Securities may institute a
legal proceeding directly against the Guarantor to enforce the Preferred
Guarantee Trustee's rights under this Preferred Securities Guarantee without
first instituting a legal proceeding against the Issuer, the Preferred Guarantee
Trustee or any other Person or entity. Notwithstanding the foregoing, if the
Guarantor has failed to make a Guarantee Payment, a Holder of Preferred
Securities may directly institute a proceeding against the Guarantor for
enforcement of the Preferred Securities Guarantee for such payment to the Holder
of the Preferred Securities of the principal of or interest on the Debentures on
or after the respective due dates specified in the 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 Preferred
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Securities. The Guarantor hereby waives any right or remedy to require that any
action on this Preferred 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 Preferred Securities Guarantee
creates a guarantee of payment and not of collection.
SECTION 5.6 Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders of Preferred Securities against the Issuer in respect
of any amounts paid to such Holders by the Guarantor under this Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Preferred Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Preferred Securities Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Preferred Guarantee Trustee for the benefit of the Holders.
SECTION 5.7 Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities, and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Preferred Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
SECTION 5.8 Waiver Under Indenture and Declaration. Any waiver by the
Holders of any right under the Indenture or the Declaration shall constitute a
waiver of their rights hereunder to the full extent of such waiver.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions. So long as any Preferred
Securities remain outstanding, if there shall have occurred a Guarantee Event of
Default or an event of default under the Declaration, then, prior to the payment
of all accrued interest on outstanding Debentures, the Guarantor may not (a)
declare or pay dividends on, make a distribution with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock, (b) make any payment of interest, principal or premium, if any,
on, or repay, repurchase or redeem, any debt securities issued by the Guarantor
that rank equal with or junior to the Debentures or (c) make guarantee payments
with respect to the foregoing (other than as set forth in this Preferred
Securities Guarantee); provided, however, that the restriction in clause (a)
does not apply to (i) purchases or acquisitions of the Guarantor's capital stock
in connection with the satisfaction of its obligations under any employee
benefit plans, stock option plans, employee stock purchase plans or direct
reinvestment plans as may be in effect from time to time or the satisfaction of
its obligations pursuant to any contract or security outstanding on the date of
such event requiring the Guarantor to purchase its capital stock (other than a
contractual obligation ranking equal with or junior to the Debentures), (ii)
reclassifications of the
14
Guarantor's capital stock or the exchange or conversion of one class or series
of the Guarantor's capital stock, provided that such reclassification, exchange
or conversion does not result in a change in the priority vis-a-vis the
Preferred Securities of any class or series of capital stock that is being so
reclassified or that is the subject of such exchange or conversion, (iii)
purchases 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 bring converted or exchanged, (iv) stock dividends paid by the
Guarantor where the dividend stock is the same stock as that on which the
dividend is being paid or (v) any declaration of a dividend in connection with
the implementation of a shareholders' rights plan, or the issuance of capital
stock of any class or series under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto.
SECTION 6.2 Ranking. This Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor, except those liabilities of the Guarantor made equal or subordinate
by their terms, (ii) equal with the most senior preferred or preference stock
now or hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any preferred or preference stock of
any Affiliate of the Guarantor, (iii) senior to the Guarantor's common stock and
(iv) effectively subordinated to the liabilities and obligations of the
Guarantor's Subsidiaries to the same extent as the Debentures as described in
the Indenture. If an Event of Default has occurred and is continuing under the
Declaration, the rights of the holders of the Common Securities to receive any
payments shall be subordinated to the rights of the Holders of Preferred
Securities to receive Guarantee Payments hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination. This Preferred Securities Guarantee shall
terminate upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Debentures to the Holders of all
of the Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred 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 Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Preferred Securities Guarantee or by law, except that an
Indemnified Person shall
15
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities 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 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. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee.
ARTICLE IX
INTENTIONALLY OMITTED
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns. All guarantees and agreements
contained in this Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding.
SECTION 10.2 Amendments. Except with respect to any changes that do not
adversely affect the rights of the Holders (in which case no consent of the
Holders will be required), this Preferred Securities Guarantee may only be
amended with the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities. The provisions of Section 12.2
of the Declaration with respect to meetings of, and action by written consent
of, the Holders of the Securities apply to the giving of such approval.
SECTION 10.3 Notices. All notices provided for in this Preferred
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by registered or certified
mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Guarantor and the
Holders of the Preferred Securities):
[__________________________________________] Attention: [____________________].
16
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Preferred Guarantee Trustee and the Holders of the Preferred Securities):
▇▇▇▇▇▇▇ Company, One Kellogg Square, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ Attention: General Counsel.
(c) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 10.4 Benefit. This Preferred Securities Guarantee is solely for
the benefit of the Holders of the Preferred Securities and, subject to Section
3.1(a), is not transferable separately from the Preferred Securities.
SECTION 10.5 Governing Law. THIS PREFERRED SECURITIES GUARANTEE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
* * * * *
17
IN WITNESS WHEREOF, this Preferred Securities Guarantee is executed as
of the day and year first above written.
▇▇▇▇▇▇▇ COMPANY, as Guarantor
By:
-------------------------------------
Name:
Title:
[_______________________], as
Preferred Guarantee Trustee
By:
------------------------------------
Name:
Title:
