Exhibit 4.8
QUIPS Guarantee Agreement
Between
AmerUs Life Holdings, Inc.
(as Guarantor)
and
First Union National Bank
(as Trustee)
dated as of
July 27, 1998
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . .4
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE II
TRUST INDENTURE ACT. . . . . . . .7
SECTION 2.01. Trust Indenture Act; Application. . . . . . . . . . . . . . . . .7
SECTION 2.02. Lists of Holders. . . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 2.03. Reports by the QUIPS Guarantee Agreement Trustee. . . . . . . . .8
SECTION 2.04. Periodic Reports to QUIPS Guarantee Agreement Trustee . . . . . .8
SECTION 2.05. Evidence of Compliance with Conditions Precedent. . . . . . . . .8
SECTION 2.06. Guarantee Events of Default; Waiver . . . . . . . . . . . . . . .8
SECTION 2.07. Guarantee Event of Default; Notice. . . . . . . . . . . . . . . .8
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE III
POWERS, DUTIES AND RIGHTS OF QUIPS GUARANTEE AGREEMENT TRUSTEE9
SECTION 3.01. Powers and Duties of the QUIPS Guarantee Agreement Trustee. . . .9
SECTION 3.02. Certain Rights of QUIPS Guarantee Agreement Trustee . . . . . . 11
SECTION 3.03. Not Responsible for Recitals or Issuance of QUIPS
Guarantee Agreement. . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV
QUIPS GUARANTEE AGREEMENT TRUSTEE14
SECTION 4.01. QUIPS Guarantee Agreement Trustee; Eligibility. . . . . . . . . 14
SECTION 4.02. Appointment, Removal and Resignation of QUIPS Guarantee Agreement
Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V
GUARANTEE . . . . . . . . . . . . 15
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . 15
SECTION 5.03. Obligations Not Affected. . . . . . . . . . . . . . . . . . . . 16
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.05. Guarantee of Payment. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.07. Independent Obligations . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
COVENANTS AND SUBORDINATION . . . . . . . . . . . . 17
SECTION 6.01. Limitation of Transactions. . . . . . . . . . . . . . . . . . . 18
SECTION 6.02. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
TERMINATION. . . . . . . . . . . 19
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII
COMPENSATION AND EXPENSES OFQUIPS GUARANTEE AGREEMENT TRUSTEE19
SECTION 8.01. Compensation and Expenses of QUIPS Guarantee Agreement Trustee. 19
ARTICLE IX
INDEMNIFICATION. . . . . . . . . 20
SECTION 9.01. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.02. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE X
MISCELLANEOUS . . . . . . . . . . 21
SECTION 10.01. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 21
SECTION 10.02. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 10.03. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 10.04. Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 10.05. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 10.06. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10.07. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 23
QUIPS Guarantee Agreement
This QUIPS Guarantee Agreement, dated as of July 27, 1998, is
executed and delivered by AmerUs Life Holdings, Inc., an Iowa corporation (the
"Guarantor"), and First Union National Bank, a national banking corporation, as
trustee, for the benefit of the Holders (as defined herein) from time to time of
the Capital Securities (as defined herein) of AmerUs Capital II, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of the date hereof 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, the Issuer is
issuing up to $149,461,063 aggregate liquidation amount of its 6.86% Capital
Securities, (liquidation amount $31.5625 per Capital Security) (the "Capital
Securities") and up to $4,622,486 aggregate liquidation amount of its 6.86%
Common Securities (the "Common Securities" and together with the Capital
Securities, the "Trust Securities"), each representing ownership interests in
the assets of the Issuer and having the terms set forth in the Declaration;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined herein) of
the Guarantor which will be deposited with First Union National Bank, as
Property Trustee under the Declaration, as trust assets;
WHEREAS, as an incentive for the Holders to purchase Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, the Guarantor is executing and delivering a Guarantee
Agreement (the "Common Trust Securities Guarantee") with substantially identical
terms to this QUIPS Guarantee Agreement, for the benefit of the holders of the
Common Securities, except that if a Guarantee Event of Default (as defined
herein) has occurred and is continuing, the rights of the holders of the Common
Securities to receive the Guarantee Payments under the Common Trust Securities
Guarantee are subordinated, to the extent and in the manner set forth in the
Common Trust Securities Guarantee, to the rights of Holders to receive Guarantee
Payments under this QUIPS Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this QUIPS Guarantee Agreement
for the benefit of the Holders from time to time of the Capital Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this QUIPS Guarantee
Agreement, the terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings assigned to such
terms in the Declaration as in effect on the date hereof unless otherwise
indicated.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, PROVIDED, HOWEVER that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capital Securities" has the meaning specified in the recitals to this
QUIPS Guarantee Agreement.
"Common Securities" has the meaning specified in the recitals to this
QUIPS Guarantee Agreement.
"Debentures" means the series of subordinated debt securities of the
Guarantor designated the 6.86% Junior Subordinated Deferrable Interest
Debentures due July 27, 2003 held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Declaration" has the meaning set forth in the preamble to this QUIPS
Guarantee Agreement.
"Distribution" shall have the same meaning as indicated in the
Declaration.
"Final Redemption Price" means the final redemption price of the
QUIPS, including all accumulated and unpaid Distributions to the date of
redemption.
"Guarantee Event of Default" has the meaning specified in Section
2.06.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Capital Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Declaration) required to be paid on
the Capital Securities, to the extent the Issuer shall have funds on hand
legally available therefor at such time, and (ii) the Final Redemption Price
with respect to the QUIPS outstanding on the Maturity Date of the Debentures (as
defined in the Indenture) to the extent the Issuer shall have funds on hand
legally available therefor at such time. If a Guarantee Event of Default has
occurred and is continuing, no Guarantee Payments under the Common Trust
Securities Guarantee with respect to the Common Trust Securities or any
guarantee payment under any Other Common Trust Securities Guarantees shall be
made until the Holders shall be paid in full the Guarantee Payments to which
they are entitled under this QUIPS Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Capital Securities or Normal Units that is deemed, under
the Declaration, to be a holder of any Capital Securities; PROVIDED, HOWEVER,
that in determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the QUIPS Guarantee Agreement Trustee or any
Affiliate of the Guarantor or the QUIPS Guarantee Agreement Trustee.
"Indemnified Person" means the QUIPS Guarantee Agreement Trustee, any
Affiliate of the QUIPS Guarantee Agreement Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the QUIPS Guarantee Agreement Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of the
date hereof, among the Guarantor and First Union National Bank, as trustee, as
the same may be amended or supplemented from time to time in accordance with the
terms hereof, pursuant to which the Debentures are to be issued to the Property
Trustee.
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, Capital Securities representing
more than 50% of the liquidation amount of all then outstanding Capital
Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two of the following: the Chairman of the Board, Vice
Chairman of the Board, Chief Executive Officer, the President or a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this QUIPS Guarantee
Agreement 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 Trust Securities Guarantees" shall have the same meaning
as "Other Guarantees" in the Common Trust Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued by
the Guarantor from time to time and sold to trusts established or to be
established by the Guarantor, in each case similar to the issuer.
"Other Guarantees" means all guarantees issued by the Guarantor with
respect to securities similar to the QUIPS issued by other trusts to be
established by the Guarantor, in each case similar to the Issuer.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"QUIPS Guarantee Agreement" means this QUIPS Guarantee Agreement,
dated as of the date hereof, between AmerUs Life Holdings, Inc. and the QUIPS
Guarantee Agreement Trustee.
"QUIPS Guarantee Agreement Trustee" means First Union National Bank,
until a Successor QUIPS Guarantee Agreement Trustee has been appointed and has
accepted such appointment pursuant to the terms of this QUIPS Guarantee
Agreement and thereafter means each such Successor QUIPS Guarantee Agreement
Trustee.
"Responsible Officer" means, with respect to the QUIPS Guarantee
Agreement Trustee, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
financial services officer or any other officer of the Corporate Trust Office of
the QUIPS Guarantee Agreement 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.
"Senior Indebtedness" shall have the same meaning as indicated in the
Indenture.
"Successor QUIPS Guarantee Agreement Trustee" means a successor QUIPS
Guarantee Agreement Trustee possessing the qualifications to act as QUIPS
Guarantee Agreement Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" has the meaning specified in the recitals to this
QUIPS Guarantee Agreement.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This QUIPS Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this QUIPS
Guarantee Agreement and shall, to the extent applicable, be governed by
such provisions.
(b) If and to the extent that any provision of this QUIPS Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Section
310 to 317, inclusive, of the Trust Indenture Act, through operation of
Section 318(c) thereof, such imposed duties shall control. If any
provision of this QUIPS Guarantee Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded,
the latter provision shall be deemed to apply to this QUIPS Guarantee
Agreement as so modified or excluded, as the case may be.
SECTION 2.02. Lists of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the QUIPS
Guarantee Agreement Trustee (a) on a quarterly basis on each regular record
date for the Debentures, a list, in such form as the QUIPS Guarantee
Agreement Trustee may reasonably require, of the names and addresses of the
Holders of the Capital Securities ("List of Holders") as of a date not more
than 15 days prior to the delivery thereof, and (b) at such other times as
the QUIPS Guarantee Agreement Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession
or control of the Guarantor and has not otherwise been received by the
QUIPS Guarantee Agreement Trustee in its capacity as such; PROVIDED,
HOWEVER, 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 QUIPS Guarantee Agreement Trustee by
the Guarantor. The QUIPS Guarantee Agreement Trustee may destroy any List
of Holders previously given to it on receipt of a new List of Holders.
(b) The QUIPS Guarantee Agreement Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.03. Reports by the QUIPS Guarantee Agreement Trustee. Not
later than July 27 of each year, commencing July 27, 1999, the QUIPS Guarantee
Agreement 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(a) of the Trust Indenture Act. The QUIPS Guarantee
Agreement Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.04. Periodic Reports to QUIPS Guarantee Agreement Trustee.
The Guarantor shall provide to the QUIPS Guarantee Agreement Trustee, the
Securities and Exchange Commission and the Holders such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act; PROVIDED,
HOWEVER, that such compliance certificate shall be delivered on or before 120
days after the end of each fiscal year of the Guarantor. Delivery of such
reports, information and documents to the QUIPS Guarantee Agreement Trustee is
for informational purposes only and the QUIPS Guarantee Agreement Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Guarantor's compliance with any of its covenants hereunder (as to which the
QUIPS Guarantee Agreement Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the QUIPS Guarantee Agreement Trustee such evidence
of compliance with conditions precedent, if any, provided for in this QUIPS
Guarantee Agreement 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 2.06. Guarantee Events of Default; Waiver. (a) An event of
default under this QUIPS Guarantee Agreement will occur upon the failure of the
Guarantor to perform any of its payment or other obligations hereunder (a
"Guarantee Event of Default"); PROVIDED, HOWEVER, that, other than with respect
to a default on any payment under this QUIPS Guarantee Agreement, the Guarantor
shall have received notice of default and shall not have cured such default
within 90 days after receipt of such notice.
(b) The Holders of a Majority in liquidation amount of the Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
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 QUIPS Guarantee Agreement and the Common Trust
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 2.07. Guarantee Event of Default; Notice.
(a) The QUIPS Guarantee Agreement 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 Capital Securities, notices of
all Guarantee Events of Default known to the QUIPS Guarantee Agreement
Trustee, unless such Guarantee Event of Default has been cured before the
giving of such notice, PROVIDED THAT, except in the case of a default in
the payment of a Guarantee Payment, the QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders of the Capital Securities.
(b) The QUIPS Guarantee Agreement Trustee shall not be deemed to have
knowledge of any Guarantee Event of Default unless the QUIPS Guarantee
Agreement Trustee shall have received written notice, or a Responsible
Officer charged with the administration of this QUIPS Guarantee Agreement
shall have obtained actual knowledge, of such Guarantee Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration and the
Indenture shall be deemed to be specifically described in this QUIPS Guarantee
Agreement 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
QUIPS GUARANTEE AGREEMENT TRUSTEE
SECTION 3.01. Powers and Duties of the QUIPS Guarantee Agreement
Trustee.
(a) This QUIPS Guarantee Agreement shall be held by the QUIPS
Guarantee Agreement Trustee for the benefit of the Holders of the Capital
Securities, and the QUIPS Guarantee Agreement Trustee shall not transfer
this QUIPS Guarantee Agreement to any Person except a Holder of Capital
Securities exercising his or her rights pursuant to Section 5.04(iv) or to
a Successor QUIPS Guarantee Agreement Trustee on acceptance by such
Successor QUIPS Guarantee Agreement Trustee of its appointment to act as
Successor QUIPS Guarantee Agreement Trustee. The right, title and interest
of the QUIPS Guarantee Agreement Trustee shall automatically vest in any
Successor QUIPS Guarantee Agreement Trustee, upon acceptance by such
Successor QUIPS Guarantee Agreement Trustee of its appointment hereunder,
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 QUIPS Guarantee Agreement Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer has occurred and is continuing, the QUIPS Guarantee Agreement
Trustee shall enforce this QUIPS Guarantee Agreement for the benefit of the
Holders of the Capital Securities.
(c) The QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement, and
no implied covenants shall be read into this QUIPS Guarantee Agreement
against the QUIPS Guarantee Agreement Trustee. In case a Guarantee Event
of Default has occurred (that has not been cured or waived pursuant to
Section 2.06), and is actually known to a Responsible Officer, the QUIPS
Guarantee Agreement Trustee shall exercise such of the rights and powers
vested in it by this QUIPS Guarantee Agreement, 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.
(d) No provision of this QUIPS Guarantee Agreement shall be construed
to relieve the QUIPS Guarantee Agreement 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 QUIPS Guarantee
Agreement Trustee shall be determined solely by the express
provisions of this QUIPS Guarantee Agreement, (including pursuant
to Section 2.01) and the QUIPS Guarantee Agreement Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this QUIPS Guarantee
Agreement and no implied covenants or obligations shall be read
into this QUIPS Guarantee Agreement against the QUIPS Guarantee
Agreement Trustee; and
(B) in the absence of bad faith on the part of the QUIPS
Guarantee Agreement Trustee, the QUIPS Guarantee Agreement
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 QUIPS Guarantee
Agreement Trustee and conforming to the requirements of this
QUIPS Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or of the
Trust Indenture Act are specifically required to be furnished to
the QUIPS Guarantee Agreement Trustee, the QUIPS Guarantee
Agreement Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
QUIPS Guarantee Agreement;
(ii) the QUIPS Guarantee Agreement Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer
of the QUIPS Guarantee Agreement Trustee, unless it shall be proved
that the QUIPS Guarantee Agreement Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the QUIPS Guarantee Agreement 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 Capital Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the QUIPS Guarantee Agreement Trustee, or exercising any
trust or power conferred upon the QUIPS Guarantee Agreement Trustee
under this QUIPS Guarantee Agreement; and
(iv) no provision of this QUIPS Guarantee Agreement shall require
the QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement 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 QUIPS Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.02. Certain Rights of QUIPS Guarantee Agreement Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The QUIPS Guarantee Agreement 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 reasonably
believed by it to be genuine and to have been signed, sent or pre-
sented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
QUIPS Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this QUIPS Guarantee
Agreement, the QUIPS Guarantee Agreement Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the QUIPS Guarantee
Agreement Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request
from the QUIPS Guarantee Agreement Trustee, shall be promptly de-
livered by the Guarantor.
(iv) The QUIPS Guarantee Agreement Trustee may (at the expense of
the Guarantor) consult with legal counsel, and the written advice or
opinion of such legal 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 legal counsel may be
legal counsel to the Guarantor or any of its Affiliates and may be one
of its employees. The QUIPS Guarantee Agreement Trustee shall have
the right at any time to seek instructions concerning the
administration of this QUIPS Guarantee Agreement from any court of
competent jurisdiction.
(v) The QUIPS Guarantee Agreement Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this QUIPS Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the QUIPS Guarantee
Agreement Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the QUIPS Guarantee
Agreement Trustee, against the costs, expenses (including attorneys'
fees and expenses) 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 QUIPS Guarantee Agreement Trustee;
provided that nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the QUIPS Guarantee Agreement Trustee, upon the
occurrence of a Guarantee Event of Default, of its obligation to
exercise the rights and powers vested in it by this QUIPS Guarantee
Agreement.
(vi) The QUIPS Guarantee Agreement 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
QUIPS Guarantee Agreement Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit.
(vii) The QUIPS Guarantee Agreement Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the QUIPS Guarantee
Agreement Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with
due care by it hereunder.
(viii) Whenever in the administration of this QUIPS Guarantee
Agreement the QUIPS Guarantee Agreement Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the QUIPS Guarantee
Agreement Trustee (A) may request instructions from the Holders of the
Capital Securities, (B) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance with such
instructions.
(ix) The QUIPS Guarantee Agreement Trustee shall have no duty to
see any recording, filing or registration of any instrument (or any
re-recording, refiling or re-registration thereof).
(x) Any action taken by the QUIPS Guarantee Agreement Trustee or
its agents hereunder shall bind the Holders, and the signature of the
QUIPS Guarantee Agreement 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 QUIPS
Guarantee Agreement Trustee to so act or as to its compliance with any
of the terms and provisions of this QUIPS Guarantee Agreement, both of
which shall be conclusively evidenced by the QUIPS Guarantee Agreement
Trustee's or its agent's taking such action.
(xii) The QUIPS Guarantee Agreement Trustee shall not be liable
for any action taken, suffered or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this QUIPS Guarantee Agreement.
(b) No provision of this QUIPS Guarantee Agreement shall be deemed to
impose any duty or obligation on the QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement 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 QUIPS
Guarantee Agreement Trustee shall be construed to be a duty to act in
accordance with such power and authority.
SECTION 3.03. Not Responsible for Recitals or Issuance of QUIPS
Guarantee Agreement. The recitals contained in this QUIPS Guarantee Agreement
shall be taken as the statements of the Guarantor, and the QUIPS Guarantee
Agreement Trustee does not assume any responsibility for their correctness. The
QUIPS Guarantee Agreement Trustee makes no representation as to the validity or
sufficiency of this QUIPS Guarantee Agreement.
ARTICLE IV
QUIPS GUARANTEE AGREEMENT TRUSTEE
SECTION 4.01. QUIPS Guarantee Agreement Trustee; Eligibility.
(a) There shall at all times be a QUIPS Guarantee Agreement Trustee
which shall
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and shall be a corporation
meeting the requirements of Section 310(a) of the Trust Indenture Act.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of a supervising or examining
authority, then, for the purposes of this Section 4.01(a)(ii) and to
the extent permitted by the Trust Indenture Act, 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 QUIPS Guarantee Agreement Trustee shall cease
to be eligible to so act under Section 4.01(a), the QUIPS Guarantee
Agreement Trustee shall immediately resign in the manner and with the
effect set out in Section 4.02(c).
(c) If the QUIPS Guarantee Agreement Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the QUIPS Guarantee Agreement Trustee and Guarantor shall
in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of QUIPS Guarantee
Agreement Trustees.
(a) Subject to Section 4.02(b), the QUIPS Guarantee Agreement Trustee
may be appointed or removed without cause at any time by the Guarantor
except during a Guarantee Event of Default.
(b) The QUIPS Guarantee Agreement Trustee shall not be removed until
a Successor QUIPS Guarantee Agreement Trustee has been appointed and
has accepted such appointment by written instrument executed by such
Successor QUIPS Guarantee Agreement Trustee and delivered to the
Guarantor.
(c) The QUIPS Guarantee Agreement Trustee appointed hereunder shall
hold office until a Successor QUIPS Guarantee Agreement Trustee shall have
been appointed or until its removal or resignation. The QUIPS Guarantee
Agreement Trustee may resign from office (without need for prior or subse-
quent accounting) by an instrument in writing executed by the QUIPS
Guarantee Agreement Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor QUIPS Guarantee
Agreement Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor QUIPS Guarantee Agreement
Trustee and delivered to the Guarantor and the resigning QUIPS Guarantee
Agreement Trustee.
(d) If no Successor QUIPS Guarantee Agreement Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within
30 days after delivery to the Guarantor of an instrument of resignation,
the resigning QUIPS Guarantee Agreement Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for
appointment of a Successor QUIPS Guarantee Agreement Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor QUIPS Guarantee Agreement Trustee.
(e) No QUIPS Guarantee Agreement Trustee shall be liable for the acts
or omissions to act of any Successor QUIPS Guarantee Agreement Trustee.
(f) Upon termination of this QUIPS Guarantee Agreement or removal or
resignation of the QUIPS Guarantee Agreement Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the QUIPS Guarantee Agreement
Trustee all amounts due to the QUIPS Guarantee Agreement Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Issuer),
as and when due, regardless of any defense (other than the defense of payment),
right of set-off or counterclaim which 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 5.02. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the QUIPS Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the QUIPS Guarantee Agreement
Trustee, the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this QUIPS Guarantee Agreement
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
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 (other than an extension
of time for payment of Distributions that results from the
extension of any interest payment period on the Debentures as so
provided in the Indenture), Final Redemption Price, liquidation
Distribution or any other sums payable under the terms
of the Capital Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of
the 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 Capital
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
(other than payment of the underlying obligation) it being the
intent of this Section 5.03 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowl-
edges that: (i) this QUIPS Guarantee Agreement will be deposited with the QUIPS
Guarantee Agreement Trustee to be held for the benefit of the Holders; (ii) the
QUIPS Guarantee Agreement Trustee has the right to enforce this QUIPS Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
QUIPS Guarantee Agreement Trustee in respect of this QUIPS Guarantee Agreement
or exercising any trust or power conferred upon the QUIPS Guarantee Agreement
Trustee under this QUIPS Guarantee Agreement; PROVIDED, HOWEVER, that (subject
to Section 3.01) the QUIPS Guarantee Agreement Trustee shall have the right to
decline to follow any such direction if the QUIPS Guarantee Agreement Trustee
shall determine that the actions so directed would be unjustly prejudicial to
the Holders not taking part in such direction or if the QUIPS Guarantee
Agreement Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the QUIPS Guarantee
Agreement Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee or directors or trustees and/or Responsible
Officers shall determine that the action or proceedings so directed would
involve the QUIPS Guarantee Agreement Trustee in personal liability; and (iv)
any Holder of Capital Securities may institute, to the extent permissible under
applicable law, a legal proceeding directly against the Guarantor to enforce its
rights under this QUIPS Guarantee Agreement without first instituting a legal
proceeding against the QUIPS Guarantee Agreement Trustee, the Issuer or any
other Person. The Guarantor waives any right or remedy to require that any
action be brought first against the Issuer or any other person or entity before
proceeding directly against the Guarantor.
SECTION 5.05. Guarantee of Payment. This QUIPS Guarantee Agreement
creates a guarantee of payment and not a guarantee of collection. This QUIPS
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the Issuer)
or upon distribution of Debentures to Holders as provided in the Declaration.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of any amounts paid
to the Holders by the Guarantor under this QUIPS Guarantee Agreement and shall
have the right to waive payment by the Issuer pursuant to Section 5.01;
PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this QUIPS Guarantee
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this QUIPS Guarantee Agreement. 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 5.07. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the 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 QUIPS Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.03
hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01. Limitation of Transactions. So long as any QUIPS
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 and
preferred stock), (ii) make any payment of principal, interest or premium, if
any, on or repay or 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 or
junior in right of payment to the Debentures (other than in the case of
clauses (i), (ii) and (iii), (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 stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under this QUIPS Guarantee Agreement, (d) as a
result of a reclassification of the Guarantor's capital stock solely into shares
of one or more classes or series of the Guarantor's capital stock or the
exchange or the conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock, (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 the Guarantor's
common stock in connection with the satisfaction by the Guarantor of its
obligations (including purchases related to the issuance of such common stock or
rights) under any of the Guarantor's benefit plans for its and its subsidiaries'
directors, officers or employees or any of the Guarantor's dividend reinvestment
plans), if at such time (x) a Guarantee Event of Default or an Event of Default
(as defined in the Indenture) shall have occurred and be continuing, (y) if such
Debentures are held by the Property Trustee, the Guarantor shall be in default
with respect to its payment of any obligations under this QUIPS Guarantee
Agreement or (z) the Guarantor shall have given notice of its election of the
exercise of its right to extend the interest payment period pursuant to
Section 3.01(b)(6) of the Indenture and any such extension shall have commenced
and not yet terminated.
SECTION 6.02. Subordination. (a) The obligations of the Guarantor
under this QUIPS Guarantee Agreement will constitute unsecured obligations of
the Guarantor and will rank subordinate and junior in right of payment to all
present and future Senior Indebtedness of the Guarantor to the extent and in the
manner that the Debentures are subordinated to all present and future Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article XII of the Indenture shall apply to the obligations of the Guarantor
under this QUIPS Guarantee Agreement as if (x) such Article XII were set forth
herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XII and pari passu with the Debentures
and Other Debentures. The obligations of the Guarantor hereunder do not
constitute Senior Indebtedness of the Guarantor.
(b) The right of the Guarantor to participate in any distribution of
assets of any of its subsidiaries upon any such subsidiary's liquidation or
reorganization or otherwise is subject to the prior claims of creditors of that
subsidiary, except to the extent the Guarantor may itself be recognized as a
creditor of that subsidiary. Accordingly, the Guarantor's obligations under
this QUIPS Guarantee Agreement will be effectively subordinated to all existing
and future liabilities of the Guarantor's subsidiaries, and claimants should
look only to the assets of the Guarantor for payments thereunder. This QUIPS
Guarantee Agreement does not limit the incurrence or issuance of other secured
or unsecured debt of the Guarantor, including Senior Indebtedness of the
Guarantor, under any indenture that the Guarantor may enter into in the future
or otherwise.
(c) If an Event of Default has occurred and is continuing, the rights
of holders of the Common Trust Securities of the Issuer to receive payments
under the Common Trust Securities Guarantee are subordinated to the rights of
Holders of QUIPS to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This QUIPS Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full payment of the
Final Redemption Price of all Capital Securities, (ii) upon liquidation of the
Issuer and the distribution of the Debentures to Holders of Capital Securities
or (iii) at such other time when there are no longer any Capital Securities
outstanding. Notwithstanding the foregoing, this QUIPS Guarantee Agreement 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 with respect to Capital
Securities or this QUIPS Guarantee Agreement. Guarantor will indemnify each
Holder and hold it harmless from and against any loss it may suffer in such
circumstance.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
QUIPS GUARANTEE AGREEMENT TRUSTEE
SECTION 8.01. Compensation and Expenses of QUIPS Guarantee Agreement
Trustee. The Guarantor covenants and agrees to pay to the QUIPS Guarantee
Agreement Trustee from time to time, and the QUIPS Guarantee Agreement Trustee
shall be entitled to, such compensation as shall be agreed to in writing between
the Guarantor and the QUIPS Guarantee Agreement Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Guarantor will pay or reimburse the QUIPS Guarantee
Agreement Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the QUIPS Guarantee Agreement Trustee in
accordance with any of the provisions of this QUIPS Guarantee Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such
expenses, disbursements or advances as may arise form its negligence or bad
faith. The Guarantor also covenants to indemnify the QUIPS Guarantee Agreement
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the QUIPS Guarantee
Agreement Trustee) incurred without negligence or bad faith on the part of the
QUIPS Guarantee Agreement Trustee and arising out of or in connection with the
acceptance or administration of this guarantee, including the costs and expenses
of defending itself against any claim of liability in the premises. The
obligations of the Guarantor under this Article VIII to compensate and indemnify
the QUIPS Guarantee Agreement Trustee and to pay or reimburse the QUIPS
Guarantee Agreement Trustee for expenses, disbursements and advances shall be
secured by a lien prior to that of the QUIPS upon all property and funds held or
collected by the QUIPS Guarantee Agreement Trustee as such, except funds held in
trust for the benefit of the holders of particular QUIPS.
The provisions of this Article VIII shall survive the termination of
this QUIPS Guarantee Agreement.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. 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 QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement 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 9.02. 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
obligation to indemnify as set forth in this Section 9.02 shall survive the
termination of this QUIPS Guarantee Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Successors and Assigns. All guarantees and agreements
contained in this QUIPS Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Capital Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor or a
conveyance, transfer or lease of the Guarantor's properties that is permitted
under Article Seven of the Indenture and pursuant to which the successor or
assignee agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder, and any purported
assignment other than in accordance with this provision shall be void.
SECTION 10.02. Amendments. Except with respect to any changes that
do not adversely affect the rights of Holders in any material respect (in which
case no consent of Holders will be required), this QUIPS Guarantee Agreement may
be amended only with the prior approval of the Holders of not less than a
Majority in liquidation amount of the outstanding Capital Securities (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). The provisions of the Declaration concerning
meetings of Holders shall apply to the giving of such approval.
SECTION 10.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address as the Guarantor may give notice of to
the QUIPS Guarantee Agreement Trustee:
AmerUs Life Holdings, Inc.
βββ βββββ ββββββ
βββ ββββββ, ββββ βββββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Secretary
(b) if given to the Issuer, at the address or telecopy number set
forth below or such other address as the Issuer may give notice of to the
QUIPS Guarantee Agreement Trustee:
AmerUs Capital II
c/o AmerUs Life Holdings, Inc.
βββ βββββ ββββββ
βββ ββββββ, ββββ βββββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Administrative Trustee
with copy to:
First Union National Bank
βββ βββββ βββββ ββββββ, βββ βββββ
βββββββββ, ββ βββββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Corporate Trust Administration
(c) if given to the QUIPS Guarantee Agreement Trustee, at the QUIPS
Guarantee Agreement Trustee's address or telecopy number set forth below:
First Union National Bank
βββ βββββ βββββ ββββββ, βββ βββββ
βββββββββ, ββ βββββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Corporate Trust Administration
(d) if given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
All notices hereunder 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 10.04. Benefit. This QUIPS Guarantee Agreement is solely for
the benefit of the Holders, and is not separately transferable from the Capital
Securities.
SECTION 10.05. Interpretation. In this QUIPS Guarantee Agreement,
unless the context otherwise requires:
(a) Capitalized terms used in this QUIPS Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01 unless otherwise indicated;
(b) a term defined anywhere in this QUIPS Guarantee Agreement has the
same meaning throughout;
(c) all references to "the QUIPS Guarantee Agreement" or "this QUIPS
Guarantee Agreement" are to this QUIPS Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this QUIPS Guarantee Agreement to Articles and
Sections are to Articles and Sections of this QUIPS Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this QUIPS Guarantee Agreement unless otherwise defined in
this QUIPS Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 10.06. Governing Law. THIS QUIPS GUARANTEE AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
SECTION 10.07. Counterparts. This QUIPS Guarantee Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
THIS QUIPS Guarantee Agreement is executed as of the day and year
first above written.
AMERUS LIFE HOLDINGS, INC.
/s/ βββββ β. ββββββ
By: ---------------------------------
Name: βββββ β. ββββββ
Title: Chairman, President and
Chief Executive Officer
FIRST UNION NATIONAL BANK,
as QUIPS Guarantee Agreement Trustee
/s/ βββββ β. ββββββββ
By: ---------------------------------
Name: βββββ β. ββββββββ
Title: Vice President
