CAPITAL SECURITIES GUARANTEE AGREEMENT BY AND BETWEEN GREAT SOUTHERN BANCORP, INC. AND WILMINGTON TRUST COMPANY DATED AS OF , 20__
Exhibit 4.18
BY AND BETWEEN
GREAT SOUTHERN BANCORP,
INC.
AND
WILMINGTON TRUST
COMPANY
DATED AS OF , 20__
TABLE OF CONTENTS
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1
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RECITALS
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1
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ARTICLE
I DEFINITIONS AND INTERPRETATION
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1
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SECTION 1.1 DEFINITIONS
AND INTERPRETATION.
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1
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ARTICLE
II TRUST INDENTURE ACT
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3
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SECTION 2.1 TRUST
INDENTURE ACT; APPLICATION.
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3
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SECTION 2.2 LISTS
OF HOLDERS OF SECURITIES.
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4
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SECTION 2.3 REPORTS
BY THE GUARANTEE TRUSTEE.
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4
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SECTION 2.4 PERIODIC
REPORTS TO GUARANTEE TRUSTEE.
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4
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SECTION 2.5 EVIDENCE
OF COMPLIANCE WITH CONDITIONS PRECEDENT.
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4
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SECTION 2.6 EVENTS
OF DEFAULT; WAIVER.
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4
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SECTION 2.7 EVENT
OF DEFAULT; NOTICE.
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4
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SECTION 2.8 CONFLICTING
INTERESTS.
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5
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ARTICLE
III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
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5
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SECTION 3.1 POWERS
AND DUTIES OF THE GUARANTEE TRUSTEE.
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5
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SECTION 3.2 CERTAIN
RIGHTS OF GUARANTEE TRUSTEE.
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6
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SECTION 3.3 NOT
RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
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8
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SECTION 3.4 SECURITIES.
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8
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ARTICLE
IV GUARANTEE TRUSTEE
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8
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SECTION 4.1 GUARANTEE
TRUSTEE; ELIGIBILITY.
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8
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SECTION 4.2 APPOINTMENT,
REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
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8
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ARTICLE
V GUARANTEE
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9
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SECTION 5.1 GUARANTEE.
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9
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SECTION 5.2 WAIVER
OF NOTICE AND DEMAND.
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9
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SECTION 5.3 OBLIGATIONS
NOT AFFECTED.
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9
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SECTION 5.4 RIGHTS
OF HOLDERS.
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10
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SECTION 5.5 GUARANTEE
OF PAYMENT.
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10
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SECTION 5.6 SUBROGATION.
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10
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SECTION 5.7 INDEPENDENT
OBLIGATIONS.
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10
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ARTICLE
VI LIMITATION OF TRANSACTIONS; SUBORDINATION
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11
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SECTION 6.1 LIMITATION
OF TRANSACTIONS.
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11
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SECTION 6.2 RANKING.
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11
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ARTICLE
VII TERMINATION
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11
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SECTION 7.1 TERMINATION.
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11
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ii
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ARTICLE
VIII INDEMNIFICATION
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12
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SECTION 8.1 EXCULPATION.
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12
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SECTION 8.2 INDEMNIFICATION.
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12
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SECTION 8.3 COMPENSATION.
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12
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ARTICLE
IX MISCELLANEOUS
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12
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SECTION 9.1 SUCCESSORS
AND ASSIGNS.
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12
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SECTION 9.2 AMENDMENTS.
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12
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SECTION 9.3 NOTICES.
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13
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SECTION 9.4 BENEFIT.
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13
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SECTION 9.5 GOVERNING
LAW.
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13
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SECTION 9.6 COUNTERPARTS.
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13
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iii
CROSS REFERENCE
TABLE
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Section of Trust Indenture Act
of 1939, as amended
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Section of Guarantee Agreement
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310(a)
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4.1(a)
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310(b)
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4.1(c),
2.8
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310(c)
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Not
Applicable
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311(a)
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2.2(b)
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311(b)
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2.2(b)
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311(c)
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Not
Applicable
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312(a)
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2.2(a)
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312(b)
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2.2(b)
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313
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2.3
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314(a)
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2.4
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314(b)
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Not
Applicable
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314(c)
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2.5
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314(d)
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Not
Applicable
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314(e)
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1.1, 2.5,
3.2
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314(f)
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2.1, 3.2
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315(a)
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3.1(d)
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315(b)
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2.7
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315(c)
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3.1
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315(d)
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3.1(d)
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316(a)
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1.1, 2.6,
5.4
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316(b)
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5.3
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317(a)
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3.1
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317(b)
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Not
Applicable
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318(a)
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2.1(a)
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318(b)
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2.1
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318(c)
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2.1(b)
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Note: This Cross-Reference Table does
not constitute part of this Agreement and shall not affect the interpretation of
any of its terms or provisions.
iv
This
CAPITAL SECURITIES GUARANTEE AGREEMENT (this “Capital Securities Guarantee”),
dated as of ________ __, 20__, is executed and delivered by GREAT SOUTHERN
BANCORP, INC., a Maryland corporation (the “Guarantor”), and WILMINGTON TRUST
COMPANY, as trustee (the “Guarantee Trustee”), for the benefit of the Holders
(as defined herein) from time to time of the Capital Securities (as defined
herein) of Great Southern Capital Trust IV, a Delaware statutory
trust (the “Trust”).
RECITALS
WHEREAS,
pursuant to an Amended and Restated Trust Agreement (the “Trust Agreement”),
dated as of __________ __, 20__ among the trustees of the Trust named therein,
the Guarantor, as depositor, 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 _______ preferred securities, having an aggregate Liquidation Amount
of $______ designated the ___% Cumulative Trust Capital Securities (the “Capital
Securities”);
WHEREAS,
as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Capital Securities Guarantee, to pay to the Holders of the Capital
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 Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Capital Securities Guarantee
for the benefit of the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
SECTION 1.1 DEFINITIONS
AND INTERPRETATION.
In this
Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized
terms used in this Capital Securities Guarantee but not defined in the preamble
above have the respective meanings assigned to them in this
Section 1.1;
(b) terms
defined in the Trust Agreement have the same meaning when used in this Capital
Securities Guarantee, unless otherwise defined in this Capital Securities
Guarantee;
(c) a
term defined anywhere in this Capital Securities Guarantee has the same meaning
throughout;
(d) all
references to “the Capital Securities Guarantee” or “this Capital Securities
Guarantee” are to this Capital Securities Guarantee as modified, supplemented or
amended from time to time;
(e) all
references in this Capital Securities Guarantee to Articles and Sections are to
Articles and Sections of this Capital Securities Guarantee, unless otherwise
specified;
(f) a
term defined in the Trust Indenture Act has the same meaning when used in this
Capital Securities Guarantee, unless otherwise defined in this Capital
Securities Guarantee or unless the context otherwise requires; and
(g) a
reference to the singular includes the plural and vice versa.
“Affiliate”
has the same meaning as given to that term in Rule 405 of the Securities
Act of 1933, as amended, or any successor rule thereunder.
“Business
Day” means any day other than a Saturday, Sunday, a day on which federal or
state banking institutions in New York, New York are authorized or required by
law, executive order or regulation to close or a day on which the Corporate
Trust Office of the Guarantee Trustee is closed for business.
“Capital
Securities” means the ___% Cumulative Trust Capital Securities representing
undivided beneficial interests in the assets of the Trust which rank pari passu
with Common Securities issued by the Trust; provided, however, that upon the
occurrence of a Debenture Event of Default, the rights of holders of Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of Capital
Securities.
“Corporate
Trust Office” means the office of the Guarantee Trustee at which the corporate
trust business of the Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this Capital
Securities Guarantee is located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000.
“Covered
Person” means any Holder or beneficial owner of Capital Securities.
“Debenture
Event of Default” means an Event of Default as defined in the
Indenture.
“Debenture
Issuer” means Great Southern Bancorp, Inc., a Maryland corporation, as issuer of
the Debentures under the Indenture.
“Debentures”
means the ___% Junior Subordinated Debentures due ______ ___, 20__, of the
Debenture Issuer held by the Property Trustee of the Trust.
“Event of
Default” means a default by the Guarantor on any of its payment or other
obligations under this Capital Securities Guarantee.
“Guarantee
Payments” means the following payments or distributions, without duplication,
with respect to the Capital Securities, to the extent not paid or made by the
Trust: (i) any accrued and unpaid Distributions that are required to be
paid on such Capital Securities, to the extent the Trust 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 Trust has funds available therefor, with respect to any Capital
Securities called for redemption by the Trust, and (iii) upon a voluntary
or involuntary dissolution, winding-up or termination of the Trust (other than
in connection with the distribution of Debentures to the Holders in exchange for
Capital Securities as provided in the Trust Agreement), the lesser of
(a) the aggregate of the Liquidation Amount and all accrued and unpaid
Distributions on the Capital Securities to the date of payment, to the extent
the Trust shall have funds available therefor, and (b) the amount of assets
of the Trust remaining available for distribution to Holders in liquidation of
the Trust after satisfaction of liabilities to creditors of the Trust in
accordance with applicable law (in either case, the “Liquidation
Distribution”).
“Guarantee
Trustee” means Wilmington Trust Company, until a Successor Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Capital Securities Guarantee and thereafter means each such Successor Guarantee
Trustee.
“Guarantor”
means Great Southern Bancorp, Inc., a Maryland corporation.
“Holder”
shall mean any holder, as registered on the books and records of the Trust, 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 Guarantee Trustee or any of their respective
Affiliates.
“Indemnified
Person” means the Guarantee Trustee, any Affiliate of the Guarantee Trustee, or
any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Guarantee
Trustee.
2
“Indenture”
means the Indenture dated as of _________ __ , 20__among the Debenture
Issuer and Wilmington Trust Company, as trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued to the Property
Trustee of the Trust.
“Liquidation
Amount” means the stated value of $25 per Capital Security.
“Liquidation
Distribution” has the meaning provided therefor in the definition of Guarantee
Payments.
“Majority
in Liquidation Amount of the Capital Securities” means the holders of more than
50% of the Liquidation Amount of all of the Capital Securities.
“Officers’
Certificate” means, with respect to any Person, a certificate signed by two
authorized officers of such Person, at least one of whom shall be the principal
executive officer, principal financial officer, principal accounting officer,
treasurer or any vice president of such Person. Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Capital Securities Guarantee shall include:
(a) a
statement that each officer signing the Officers’ Certificate has read the
covenant or condition and the definition 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.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“Redemption
Price” has the meaning provided therefor in the definition of Guarantee
Payments.
“Responsible
Officer” means, with respect to the Guarantee Trustee, any officer within the
Corporate Trust Office of the Guarantee Trustee with direct responsibility for
the administration of this Capital Securities Guarantee, including any
vice-president, any assistant vice-president, any trust officer, or other
officer or assistant officer of the 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
Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
ARTICLE
II
TRUST
INDENTURE ACT
SECTION 2.1 TRUST
INDENTURE ACT; APPLICATION.
(a) This
Capital Securities Guarantee is subject to the provisions of the Trust Indenture
Act that are required to be part of this Capital Securities Guarantee and shall,
to the extent applicable, be governed by such provisions.
3
(b) If
and to the extent that any provision of this Capital Securities Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 LISTS
OF HOLDERS OF SECURITIES.
(a) In
the event the Guarantee Trustee is not also acting in the capacity of the
Property Trustee under the Trust Agreement, the Guarantor shall cause to be
provided to the Guarantee Trustee at such times as the Guarantee Trustee may
request a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Capital Securities (“List of
Holders”) as of the date (i) within one Business Day after March 15,
June 15, September 15 and December 15, and (ii) at any other
time within 30 days of receipt by the Guarantor of a written request for a List
of Holders as of a date no more than 15 days before such List of Holders is
given to the Guarantee Trustee; provided, that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders caused to have been given to the
Guarantee Trustee by the Guarantor. The Guarantee Trustee may destroy any List
of Holders previously given to it on receipt of a new List of
Holders.
(b) The
Guarantee Trustee shall comply with its obligations under Sections 311(a),
311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.3 REPORTS
BY THE GUARANTEE TRUSTEE.
On or
before July 15 of each year, commencing July 15, 20__, the Guarantee
Trustee shall provide to the Holders of the Capital Securities such reports if
and to the extent required by Section 313 of the Trust Indenture Act, in
the form and in the manner provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC
REPORTS TO GUARANTEE TRUSTEE.
The
Guarantor shall provide to the Guarantee Trustee such documents, reports and
information as required by Section 314 (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 Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Capital Securities
Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) shall
be given in the form of an Officers’ Certificate.
SECTION 2.6 EVENTS
OF DEFAULT; WAIVER.
The
Holders of a Majority in Liquidation Amount of Capital Securities may, by vote,
on behalf of the Holders of all of the Capital Securities, waive any past Event
of Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Capital Securities Guarantee, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
SECTION 2.7 EVENT
OF DEFAULT; NOTICE.
(a) The
Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders of the
Capital Securities, notices of all Events of Default actually known to a
Responsible Officer of the Guarantee Trustee, unless such defaults have been
cured or waived before the giving of such notice; provided, that, except in the
case of a default by Guarantor on any of its payment obligations, the Guarantee
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the
4
Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Capital Securities.
(b) The
Guarantee Trustee shall not be deemed to have knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice, or of which a
Responsible Officer of the Guarantee Trustee charged with the administration of
the Trust Agreement shall have obtained actual knowledge.
SECTION 2.8 CONFLICTING
INTERESTS.
The Trust
Agreement shall be deemed to be specifically described in this Capital
Securities Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE
III
POWERS,
DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 POWERS
AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This
Capital Securities Guarantee shall be held by the Guarantee Trustee for the
benefit of the Holders of the Capital Securities, and the Guarantee Trustee
shall not transfer this Capital Securities Guarantee to any Person except a
Holder of Capital Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor 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
Guarantee Trustee.
(b) If
an Event of Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce this
Capital Securities Guarantee for the benefit of the Holders of the Capital
Securities.
(c) The
Guarantee Trustee, before the occurrence of any Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Capital
Securities Guarantee, and no implied covenants shall be read into this Capital
Securities Guarantee against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6)
and is actually known to a Responsible Officer of the Guarantee Trustee, the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Capital Securities Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No
provision of this Capital Securities Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
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(i)
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prior
to the occurrence of any Event of Default and after the curing or waiving
of all such Events of Default that may have
occurred:
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(A)
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the
rights, immunities, duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Capital Securities
Guarantee, and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth
in this Capital Securities Guarantee, and no implied covenants, duties or
obligations shall be read into this Capital Securities Guarantee against
the Guarantee Trustee; and
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(B)
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in
the absence of bad faith on the part of the Guarantee Trustee, the
Guarantee Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions
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5
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furnished
to the Guarantee Trustee and conforming to the requirements of this
Capital Securities Guarantee; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Capital Securities
Guarantee;
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(ii)
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the
Guarantee Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was
made;
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(iii)
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the
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a Majority in Liquidation Amount of the
Capital Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under
this Capital Securities Guarantee;
and
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(iv)
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notwithstanding
the foregoing, no provision of this Capital Securities Guarantee shall
require the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under the terms of
this Capital Securities Guarantee or adequate indemnity against such risk
or liability is not reasonably assured to
it.
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SECTION 3.2 CERTAIN
RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject
to the provisions of Section 3.1:
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(i)
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the
Guarantee Trustee may conclusively rely, and shall be fully protected in
acting or refraining from acting in good faith and in accordance with the
terms hereof 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;
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(ii)
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any
direction or act of the Guarantor contemplated by this Capital Securities
Guarantee shall be sufficiently evidenced by an Officers’
Certificate;
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(iii)
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whenever,
in the administration of this Capital Securities Guarantee, the Guarantee
Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely upon
an Officers’ Certificate which, upon receipt of such request, shall be
promptly delivered by the
Guarantor;
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(iv)
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the
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any rerecording, refilling or
registration thereof);
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(v)
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the
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 in reliance thereon and
in accordance with such advice or opinion. Such counsel may
be
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6
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counsel
to the Guarantee Trustee, Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the right
at any time to seek instructions concerning the administration of this
Capital Securities Guarantee from any court of competent
jurisdiction;
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(vi)
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the
Guarantee Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Capital Securities Guarantee at the
request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Guarantee Trustee, against the costs, expenses
(including attorneys’ fees and expenses and the expenses of the Guarantee
Trustee’s agents, nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it
by this Capital Securities
Guarantee;
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(vii)
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the
Guarantee Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit;
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(viii)
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the
Guarantee Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it
hereunder;
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(ix)
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no
third party shall be required to inquire as to the authority of the
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Capital Securities Guarantee, both of which shall
be conclusively evidenced by the Guarantee Trustee’s or its agent’s taking
such action;
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(x)
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whenever
in the administration of this Capital Securities Guarantee the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in Liquidation Amount of the Capital Securities, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such
instructions;
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(xi)
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in
no event shall the Guarantee Trustee be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether
the Guarantee Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of
action;
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(xii)
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the
rights, privileges, protections, immunities and benefits given to the
Guarantee Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Guarantee
Trustee in each of its capacities hereunder, and to each agent, custodian
and other Person employed to act hereunder;
and
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(xiii)
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the
Guarantee Trustee may request that the Guarantor deliver a certificate
setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Capital
Securities Guarantee.
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7
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(b)
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No
provision of this Capital Securities Guarantee shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on
it in any jurisdiction in which it shall be illegal, or in which the
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a
duty.
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SECTION 3.3 NOT
RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The
Recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Capital Securities Guarantee.
SECTION 3.4 SECURITIES.
The
Guarantee Trustee or any other agent of the Guarantee Trustee, in its individual
or any other capacity, may become the owner or pledgee of Common or Capital
Securities.
ARTICLE
IV
GUARANTEE
TRUSTEE
SECTION 4.1 GUARANTEE
TRUSTEE; ELIGIBILITY.
(a) There
shall at all times be a Guarantee Trustee which shall:
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(i)
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not
be an Affiliate of the Guarantor;
and
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(ii)
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be
a corporation or national banking association 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 trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such entity
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 entity shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
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(b) If
at any time the Guarantee Trustee shall cease to be eligible to so act under
Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If
the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT,
REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject
to Section 4.2(b), the Guarantee Trustee may be appointed or removed
without cause at any time by the Guarantor.
(b) The
Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor.
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(c) The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take effect
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If
no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 30 days after delivery
to the Guarantor of an instrument of resignation or the delivery of a notice of
removal, the resigning or removed Guarantee Trustee may, at the Guarantor’s
expense, petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Guarantee
Trustee.
(e) No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f) Upon
termination of this Capital Securities Guarantee or removal or resignation of
the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay
to the Guarantee Trustee all fees and expenses accrued to the date of such
termination, removal or resignation.
ARTICLE
V
GUARANTEE
SECTION 5.1 GUARANTEE.
The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by the
Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. The Guarantor’s obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders.
SECTION 5.2 WAIVER
OF NOTICE AND DEMAND.
The
Guarantor hereby waives notice of acceptance of this Capital Securities
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Trust or
any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3 OBLIGATIONS
NOT AFFECTED.
The
obligations, covenants, agreements and duties of the Guarantor under this
Capital Securities Guarantee shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Trust of any express or implied agreement, covenant, term or
condition relating to the Capital Securities to be performed or observed by the
Trust;
(b) the
extension of time for the payment by the Trust of all or any portion of the
Distributions, Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the 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 (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Debentures
or any extension of the maturity date of the Debentures permitted by the
Indenture);
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(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 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 Capital Securities;
(f) any
failure or omission to receive any regulatory approval or consent required in
connection with the Capital Securities (or the common equity securities issued
by the Trust), including the failure to receive any regulatory approval required
for the redemption of the Capital Securities;
(g) the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(h) any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a guarantor, it being the intent of this
Section 5.3 that the obligations of the Guarantor 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 5.4 RIGHTS
OF HOLDERS.
(i) Subject
to Section 5.4(b), the Holders of a Majority in Liquidation Amount of the
Capital Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Guarantee Trustee
in respect of this Capital Securities Guarantee or exercising any trust or power
conferred upon the Guarantee Trustee under this Capital Securities
Guarantee.
(j) Any
Holder of Capital Securities may institute and prosecute a legal proceeding
directly against the Guarantor to enforce its rights under this Capital
Securities Guarantee, without first instituting a legal proceeding against the
Trust, the Guarantee Trustee or any other Person.
SECTION 5.5 GUARANTEE
OF PAYMENT.
This
Capital Securities Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 SUBROGATION.
The
Guarantor shall be subrogated to all (if any) rights of the Holders of Capital
Securities against the Trust in respect of any amounts paid to such Holders by
the Guarantor under this Capital Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any right that it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Capital Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Capital
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7 INDEPENDENT
OBLIGATIONS.
The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Trust 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 Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections
(a) through (h), inclusive, of Section 5.3 hereof.
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ARTICLE
VI
LIMITATION
OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION
OF TRANSACTIONS.
So long
as any Capital Securities remain outstanding, if (a) there shall have occurred
and be continuing an Event of Default or a Debenture Event of Default or (b) the
Debenture Issuer shall have selected an Extended Interest Payment Period as
provided in the Indenture and such period, or any extension thereof, shall have
commenced and be continuing, then the Guarantor may not (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor’s capital stock, (y)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor that rank in all
respects pari passu
with or junior in interest to the Debentures or (z) make any payment under any
guarantees of the Guarantor that rank in all respects pari passu with or junior in
interest to this Guarantee (other than (i) repurchases, redemptions or other
acquisitions of shares of capital stock of the Guarantor (A) in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of one or more employees, officers, directors, or consultants, (B)
in connection with a dividend reinvestment or stockholder stock purchase plan or
(C) in connection with the issuance of capital stock of the Guarantor (or
securities convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior to the occurrence
of the Event of Default or the applicable Extended Interest Payment Period, (ii)
as a result of any exchange or conversion of any class or series of the
Guarantor’s capital stock (or any capital stock of a subsidiary of the
Guarantor) for any class or series of the Guarantor’s capital stock or of any
class or series of the Guarantor’s indebtedness for any class or series of the
Guarantor’s capital stock, (iii) 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,
(iv) any declaration of a dividend in connection with any stockholder’s rights
plan, or the issuance of rights, stock or other property under any stockholder’s
rights plan, or the redemption or repurchase of rights pursuant thereto, or (v)
any dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with
or junior in interest to such stock).
SECTION 6.2 RANKING.
This
Capital Securities Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Debt, Subordinated Debt and Additional Senior Obligations, as defined in the
Indenture, of the Guarantor, to the extent and in the manner set forth in the
Indenture, and the applicable provisions of the Indenture will apply, in all
relevant respects, to the obligations of the Guarantor hereunder.
ARTICLE
VII
TERMINATION
SECTION 7.1 TERMINATION.
This
Capital Securities Guarantee shall terminate upon (i) full payment of the
Redemption Price of all Capital Securities, (ii) full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of the
Trust, or (iii) distribution of the Debentures to the Holders of the
Capital Securities. Notwithstanding the foregoing, this Capital Securities
Guarantee shall continue to be effective or shall be reinstated, as the case may
be, if at any time any Holder of Capital Securities must restore payment of any
sums paid under the Capital Securities or under this Capital Securities
Guarantee.
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ARTICLE
VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Guarantor or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Capital Securities
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Capital Securities Guarantee or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person’s negligence or willful misconduct with respect to such acts
or omissions.
(b) An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Guarantor and upon such information, opinions, reports or
statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person’s
professional or expert competence 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 Capital 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 Capital Securities
Guarantee.
SECTION 8.3 COMPENSATION.
The
Guarantor agrees to pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provisions of law in regard to the compensation of a
trustee of an express trust) and to reimburse the Guarantee Trustee upon request
for all reasonable expenses, disbursements and advances (including the
reasonable fees and expenses of its attorneys and agents) incurred or made by
the Guarantee Trustee in accordance with any provision of this Capital
Securities Guarantee.
ARTICLE
IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS
AND ASSIGNS.
All
guarantees and agreements contained in this Capital Securities Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding.
SECTION 9.2 AMENDMENTS.
This
Capital Securities Guarantee can only be amended by an instrument in writing
signed by the Guarantor and the Guarantor Trustee. Except with respect to any
changes that do not materially adversely affect the rights of Holders (in which
case no consent of Holders will be required), this Capital Securities Guarantee
may only be amended with the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Capital Securities. The provisions of
Article VI of the Trust Agreement with respect to meetings of Holders of
the Capital Securities apply to the giving of such approval.
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SECTION 9.3 NOTICES.
All
notices provided for in this Capital Securities Guarantee shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) If
given to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set
forth below (or such other address as the Guarantee Trustee may give notice of
to the Holders of the Capital Securities):
Wilmington Trust
Company
0000 Xxxxx Xxxxxx
Xxxxxx
Xxxxxxxxxx, Xxxxxxxx
00000-0000
Attention: Corporate Trust
Services
(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
Capital Securities):
0000 Xxxx
Xxxxxxxxxxx
Xxxxxxxxxxx,
Xxxxxxxx 00000
Attention: ________
(c) If
given to any Holder of Capital Securities, at the address set forth on the books
and records of the Trust.
All such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
SECTION 9.4 BENEFIT.
This
Capital Securities Guarantee is solely for the benefit of the Holders of the
Capital Securities and, subject to Section 3.1(a), is not separately
transferable from the Capital Securities.
SECTION 9.5 GOVERNING
LAW.
THIS
CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.6 COUNTERPARTS.
This
Capital Securities Guarantee may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
[SIGNATURE PAGE TO
FOLLOW]
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This
Capital Securities Guarantee is executed as of the day and year first above
written.
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GREAT SOUTHERN BANCORP, INC.,
AS
GUARANTOR
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By:
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Name:
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Title:
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WILMINGTON TRUST COMPANY,
AS
GUARANTEE
TRUSTEE
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By:
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Name:
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Title:
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