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COMMON SECURITIES GUARANTEE AGREEMENT
XXXXXX FINANCIAL CORP.
Dated as of July 23, 1999
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TABLE OF CONTENTS
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PAGE
Article I DEFINITIONS AND INTERPRETATION.................................2
SECTION 1.1 Definitions and Interpretation.................2
Article II GUARANTEE......................................................3
SECTION 2.1 Guarantee......................................3
SECTION 2.2 Waiver of Notice and Demand....................3
SECTION 2.3 Obligations Not Affected.......................4
SECTION 2.4 Rights of Holders..............................4
SECTION 2.5 Guarantee of Payment...........................5
SECTION 2.6 Subrogation....................................5
SECTION 2.7 Independent Obligations........................5
Article III SUBORDINATION..................................................5
SECTION 3.1 Subordination..................................5
SECTION 3.2 Pari Passu Guarantees..........................5
Article IV TERMINATION....................................................5
SECTION 4.1 Termination....................................5
Article V MISCELLANEOUS..................................................6
SECTION 5.1 Successors and Assigns.........................6
SECTION 5.2 Amendments.....................................6
SECTION 5.3 Notices........................................6
SECTION 5.4 Benefit........................................7
SECTION 5.5 Governing Law..................................7
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COMMON SECURITIES GUARANTEE AGREEMENT
This COMMON SECURITIES GUARANTEE AGREEMENT (the "Common Securities
Guarantee"), dated as of July 23, 1999, is executed and delivered by XXXXXX
FINANCIAL CORP., a Delaware corporation (the "Guarantor"), for the benefit of
the Holders (as defined herein) from time to time of the Common Securities (as
defined herein) of XXXXXX FINANCIAL CAPITAL TRUST I, a Delaware business trust
(the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
July 23, 1999 (the "Trust Agreement"), among the Guarantor as Depositor,
Wilmington Trust Company as Property Trustee, Wilmington Trust Company as
Delaware Trustee, the Administrative Trustees named therein and the holders from
time to time of undivided beneficial interests in the assets of the Trust, the
Trust is issuing on the date hereof common securities having an aggregate
liquidation amount of $3,711,350 to meet the capital requirements of the Trust;
such common securities being designated the 10% Common Securities (the "Common
Securities");
WHEREAS, as incentive for the Holders to purchase the Common Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Common Securities Guarantee, to pay the Guarantee Payments (as
defined herein) to the Holders of the Common Securities and to make certain
other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering the Capital
Securities Guarantee Agreement, dated as of July 23, 1999 (the "Capital
Securities Guarantee"), for the benefit of the holders of the Capital Securities
(as defined in the Trust Agreement), the terms of which provide that if: (i) a
Debenture Event of Default (as defined in the Trust Agreement) has occurred and
is continuing or (ii) the Trust is dissolved or liquidated and funds available
to the Trust are insufficient to pay in full the amounts due on the Capital
Securities and the Common Securities or if Debentures (as defined in the Trust
Agreement) are distributed to Holders of the Common Securities and holders of
the Capital Securities upon such liquidation or dissolution and the holders of
Capital Securities do not receive the full amount of Debentures to which they
are entitled, the rights of Holders of the Common Securities to receive
Guarantee Payments under this Common Securities Guarantee are subordinated, to
the extent and in the manner set forth herein, to the rights of holders of
Capital Securities to receive Guarantee Payments under the Capital Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of Common
Securities, which purchase the Guarantor hereby acknowledges shall benefit the
Guarantor, the Guarantor executes and delivers this Common Securities Guarantee
for the benefit of the Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation
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In this Common Securities Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Common Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) terms defined in the Trust Agreement as at the date of execution of
this Common Securities Guarantee have the same meaning when used in this Common
Securities Guarantee unless otherwise defined in this Common Securities
Guarantee;
(c) a term defined anywhere in this Common Securities Guarantee has the
same meaning throughout;
(d) all references to "the Common Securities Guarantee" or "this Common
Securities Guarantee" are references to this Common Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to Articles and
Sections are references to Articles and Sections of this Common Securities
Guarantee unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning as in
the Trust Indenture Act unless otherwise defined in this Common Securities
Guarantee; and
(g) a reference to the singular includes the plural and vice versa.
(a) "Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by or on behalf of the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) that are required to be paid
on such Common Securities, to the extent the Trust shall have funds legally
available therefor at such time, (ii) the applicable Redemption Price (as
defined in the Trust Agreement), to the extent the Trust shall have funds
legally available therefor at such time, with respect to any Common Securities
called for redemption, and (iii) upon a voluntary or involuntary termination,
winding-up or liquidation of the Trust (other than in connection with the
distribution of Debentures to the Holders in exchange for Common Securities as
provided in the Trust Agreement), the lesser of (a) the Liquidation Distribution
(as defined in the Trust Agreement) or (b) the amount of assets of the Trust
remaining available for distribution to the Holders after satisfaction of
liabilities to creditors of the Trust as required by applicable law; provided,
however, that if (i) a Debenture Event of Default shall have occurred and be
continuing as a result of any failure by the Depositor to pay any amounts in
respect of the Debentures when due, or (ii) the Trust is dissolved or liquidated
and (A) funds available to the Trust are insufficient to pay in full the
Liquidation Distribution payable on all Outstanding Trust Securities or, (B) a
Like Amount of Debentures are distributed to Securityholders upon such
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dissolution or liquidation in accordance with Article IX of the Trust Agreement
and the Holders of Capital Securities do not receive the full amount of
Debentures to which they are entitled, then no payment of any Distribution
(including Additional Amounts, if applicable) on, or applicable Redemption Price
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless (1)
payment in full in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if applicable) on all Outstanding Capital Securities for all
Distribution periods terminating on or prior thereto, and in the case of payment
of the applicable Redemption Price, the full payment in cash of such Redemption
Price on all Outstanding Capital Securities then called for redemption, shall
have been made or provided for, or (2) the Trust is dissolved or liquidated and
the aggregate Liquidation Amount on all Capital Securities then Outstanding,
plus accumulated and unpaid Distributions thereon shall have been made or
provided for in cash or, in the event a Like Amount of Debentures are
distributed to Holders of Capital Securities upon such liquidation or
dissolution in accordance with Article IX of the Trust Agreement, the
distribution to each Holder of Capital Securities of such Like Amount of
Debentures to which such holder is entitled shall have been made or duly
provided for.
"Holder" means any holder, as registered on the books and records of the
Trust, of any Common Securities.
"Other Guarantees" means any guarantees similar to the Guarantee issued,
from time to time, by the Guarantor on behalf of holders of one or more series
of capital securities issued by any Xxxxxx Trust (as defined in the Indenture)
other than the Trust.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee
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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 Trust), as and when due, regardless of any defense, right
of set-off or counterclaim which the Trust may have or assert other than the
defense of payment (the "Guarantee"). The Guarantee is a continuing guarantee,
and the Guarantor fully, knowingly and unconditionally waives any right the
Guarantor may have to revoke the Guarantee as to any future transactions. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders.
SECTION 2.2. Waiver of Notice and Demand
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The Guarantor hereby waives notice of acceptance of this Common 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 Trust or
any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
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SECTION 2.3. Obligations Not Affected
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The obligations, covenants, agreements and duties of the Guarantor under
this Common Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Common Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Common 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 Common Securities, or any
action on the part of the Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Common 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 2.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 2.4. Rights of Holders
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The Guarantor expressly acknowledges that any Holder of Common Securities
may institute a legal proceeding directly against the Guarantor to enforce its
rights under this Common Securities Guarantee, without first instituting a legal
proceeding against the Trust or any other Person.
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SECTION 2.5. Guarantee of Payment
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This Common Securities Guarantee creates a guarantee of payment and not of
collection.
SECTION 2.6. Subrogation
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The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Trust in respect of any amounts paid to such Holders by the
Guarantor under this Common 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 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 Common Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Common Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 2.7. Independent Obligations
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The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Common Securities and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Common Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 2.3 hereof.
ARTICLE III
SUBORDINATION
SECTION 3.1. Subordination
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The obligations of the Guarantor under this Guarantee will constitute
unsecured obligations of the Guarantor and will rank subordinate and junior in
right of payment to all Senior and Subordinated Debt in the same manner as the
Debentures.
SECTION 3.2. Pari Passu Guarantees
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The obligations of the Guarantor under this Guarantee shall rank pari passu
with the obligations of the Guarantor under all Other Guarantees.
ARTICLE IV
TERMINATION
SECTION 4.1. Termination
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This Common Securities Guarantee shall terminate and be of no further force
or effect upon (i) full payment of the applicable Redemption Price of all the
Common Securities, (ii) the distribution of Debentures to the Holders in
exchange for all of the Common Securities or
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(iii) full payment of the amounts payable in accordance with the Trust Agreement
upon liquidation or dissolution of the Trust. Notwithstanding the foregoing,
this Common Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to the Common Securities or under this Common
Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns
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All guarantees and agreements contained in this Common 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 Common
Securities then outstanding.
SECTION 5.2. Amendments
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Except with respect to any changes which do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Common Securities Guarantee may only be amended with the
prior approval of the Holders of a majority in Liquidation Amount of all the
outstanding Common Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of Holders of the Trust Securities shall apply to
the giving of such approval.
SECTION 5.3. Notices
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All notices provided for in this Common Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first-class mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustee at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders):
Xxxxxx Financial Capital Trust I
c/x Xxxxxx Financial Corp.
0000 Xxxxxxxx Xxxx, Xxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(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 Holders
of the Common Securities):
Xxxxxx Financial Corp.
0000 Xxxxxxxx Xxxx, Xxxxx Xxxxx
0
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(c) if given to any Holder of Common Securities, at the address set forth
on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first-class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 5.4. Benefit
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This Common Securities Guarantee is solely for the benefit of the Holders
and is not separately transferable from the Common Securities.
SECTION 5.5. Governing Law
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THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THEREOF.
This Common Securities Guarantee is executed as of the day and year first
above written.
XXXXXX FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
President & Chief Executive Officer
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