EXHIBIT 4.14
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GUARANTEE AGREEMENT
by and between
▇▇▇▇▇▇▇▇▇▇ CORPORATION,
as Guarantor
and
THE BANK OF NEW YORK,
as Trustee
______, 20__
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CROSS-REFERENCE TABLE (1)
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
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310(a) ................................................. 4.1(a)
310(b) ................................................. 2.8; 4.1(c)
310(c) ................................................. Inapplicable
311(a) ................................................. 2.2(b); 4.1(c)
311(b) ................................................. 2.2(b); 4.1(c)
311(c) ................................................. Inapplicable
312(a) ................................................. 2.2(a)
312(b) ................................................. 2.2(b)
312(c) ................................................. 2.9
313(a) ................................................. 2.3
313(b) ................................................. 2.3
313(c) ................................................. 2.3
313(d) ................................................. 2.3
314(a) ................................................. 2.4
314(b) ................................................. Inapplicable
314(c) ................................................. 2.5
314(d) ................................................. Inapplicable
314(e) ................................................. 2.5
314(f) ................................................. Inapplicable
315(a) ................................................. 3.1(d); 3.2(a)
315(b) ................................................. 2.7(a)
315(c) ................................................. 3.1(d)
315(d) ................................................. 3.1(e)
316(a) ................................................. 2.6; 5.4(a)
316(b) ................................................. 5.4(b); 9.2
316(c) ................................................. Inapplicable
317(a) ................................................. 2.10
317(b) ................................................. Inapplicable
318(a) ................................................. 2.1(b)
(1) This Cross-Reference Table does not constitute part of the Guarantee and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
TABLE OF CONTENTS
Page
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ARTICLE I - INTERPRETATION AND DEFINITIONS....................................... 1
Section 1.1 Interpretation and Definitions.................................. 1
ARTICLE II - TRUST INDENTURE ACT................................................. 4
Section 2.1 Trust Indenture Act; Application................................ 4
Section 2.2 Lists of Holders of Securities.................................. 5
Section 2.3 Reports by Guarantee Trustee.................................... 5
Section 2.4 Periodic Reports to Guarantee Trustee........................... 5
Section 2.5 Evidence of Compliance with Conditions Precedent................ 5
Section 2.6 Guarantee Event of Default; Waiver.............................. 5
Section 2.7 Guarantee Event of Default; Notice.............................. 6
Section 2.8 Conflicting Interests........................................... 6
Section 2.9 Disclosure of Information....................................... 6
Section 2.10 Guarantee Trustee May File Proofs of Claim...................... 6
ARTICLE III - POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE..................... 6
Section 3.1 Powers and Duties of Guarantee Trustee.......................... 6
Section 3.2 Certain Rights of Guarantee Trustee............................. 8
ARTICLE IV - GUARANTEE TRUSTEE................................................... 10
Section 4.1 Guarantee Trustee; Eligibility.................................. 10
Section 4.2 Appointment, Removal and Resignation of Guarantee Trustee....... 11
ARTICLE V - GUARANTEE............................................................ 11
Section 5.1 Guarantee....................................................... 11
Section 5.2 Waiver of Notice and Demand..................................... 12
Section 5.3 Obligations Not Affected........................................ 12
Section 5.4 Rights of Holders............................................... 13
Section 5.5 Guarantee of Payment............................................ 13
Section 5.6 Subrogation..................................................... 13
Section 5.7 Independent Obligations......................................... 13
ARTICLE VI - LIMITATION OF TRANSACTIONS; SUBORDINATION........................... 13
Section 6.1 Limitation of Transactions...................................... 13
Section 6.2 Ranking......................................................... 14
Section 6.3 Subordination of Common Securities.............................. 14
ARTICLE VII - TERMINATION........................................................ 14
Section 7.1 Termination..................................................... 14
ARTICLE VIII - INDEMNIFICATION................................................... 14
Section 8.1 Indemnification................................................. 14
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ARTICLE IX - MISCELLANEOUS 14
Section 9.1 Successors and Assigns........................................ 14
Section 9.2 Amendments.................................................... 15
Section 9.3 Notices....................................................... 15
Section 9.4 Benefit....................................................... 16
Section 9.5 Governing Law................................................. 16
Section 9.6 Headings...................................................... 16
Section 9.7 Counterparts.................................................. 16
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of ________, 20__, is
executed and delivered by CHITTENDEN CORPORATION, a Vermont corporation (the
"Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Securities (as defined herein) of ▇▇▇▇▇▇▇▇▇▇
CAPITAL TRUST __, a Delaware statutory business trust (the "Trust").
RECITALS
WHEREAS, pursuant to the Trust Agreement (as defined herein), the Trust may
issue up to $________ aggregate liquidation amount of capital securities (and
may issue up to $________ aggregate liquidation amount of additional capital
securities in connection with an overallotment option granted to the
underwriters of the capital securities), having a liquidation amount of $_____
per security and designated the "__% Capital Securities" of the Trust (the
"Capital Securities") and up to $________ aggregate liquidation amount of common
securities (and may issue up to $________ aggregate liquidation amount of
additional common securities in connection with an overallotment option granted
to the underwriters of the capital securities), having a liquidation amount of
$_____ per security and designated the "__% Common Securities" of the Trust (the
"Common Securities" and, together with the Capital Securities, the
"Securities");
WHEREAS, as an incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay to the Holders of the Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, if a Trust Enforcement Event (as defined herein) has occurred and
is continuing, the rights of Holders of the Common Securities to receive
Guarantee Payments under this Guarantee are subordinated to the rights of
Holders of Capital Securities to receive Guarantee Payments under this
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE I - INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions. In this Guarantee, unless the
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context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections and
Recitals are to Articles, Sections and Recitals of this Guarantee, unless
otherwise specified;
(e) unless otherwise defined in this Guarantee, a term defined in the
Trust Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa and
a reference to any masculine form of a term shall include the feminine form of a
term, as applicable; and
(g) the following terms have the following meanings:
"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" has the meaning specified in the Trust Agreement.
"Capital Securities" has the meaning specified in the Recitals hereto.
"Common Securities" has the meaning specified in the Recitals hereto.
"Common Stock" means the common stock, par value $1.00 per share, of
the Guarantor.
"Debentures" means the series of junior subordinated debentures to be
issued by the Guarantor under the Indenture designated the "___% Junior
Subordinated Debentures due ________" and held by the Property Trustee as
defined in the Trust Agreement.
"Global Securities" means fully registered, global Capital Securities
registered in the name of a depositary or its nominee, evidencing the Capital
Securities.
"Guarantee Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee.
"Guarantee Payments" means, subject in each case to the terms of the
Securities, the following payments or distributions, without duplication, with
respect to the Securities, to the extent not paid or made by or on behalf of the
Trust: (a) any accumulated and unpaid Distributions (as defined in the Trust
Agreement) that are required to be paid on such Securities, to the extent the
Trust has sufficient funds available therefor at the time, (b) the redemption
price, including all accumulated and unpaid Distributions to the date of
redemption, with respect to any Securities called for redemption by the Trust,
to the extent the Trust shall have sufficient funds available therefor at the
time or (c) 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 Securities as provided in the Trust
Agreement), the lesser of (i) the aggregate of the stated liquidation amount and
all accumulated and unpaid Distributions on the Securities to the date of
payment, to the extent the Trust has sufficient funds available therefor
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and (ii) the amount of assets of the Trust remaining available for distribution
to Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means The Bank of New York, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee and thereafter means each such Successor Guarantee
Trustee.
"Holder" means any holder of Securities, as registered on the books and
records of the Trust; 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 or any Affiliate of the Guarantor or any other obligor on the Capital
Securities, but only to the extent that the Guarantee Trustee has actual
knowledge of such ownership.
"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.
"Indenture" means the Indenture, dated as of __________, 20___, by and
between the Guarantor and The Bank of New York, as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued to the
Property Trustee, as defined in the Trust Agreement.
"Liquidation Distribution" has the meaning specified in the definition
of "Guarantee Payments."
"List of Holders" has the meaning assigned to it in Section 2.2.
"Majority in Liquidation Amount" means, except as provided in the terms
of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities, voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class. In determining
whether the Holders of the requisite amount of Capital Securities have voted,
Capital Securities which are owned by the Guarantor or any Affiliate of the
Guarantor or any other obligor on the Capital Securities shall be disregarded
for the purpose of any such determination, but only to the extent that the
Guarantee Trustee has actual knowledge of such ownership.
"Officer's Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by an Authorized Officer (as defined in the
Trust Agreement) of such Person. Any Officer's Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee shall include:
(a) a statement that such officer signing the Officer's Certificate
has read the covenant or condition and the definitions relating thereto;
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(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer on behalf of such Person in rendering
the Officer's Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
on behalf of such Person 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 such officer acting
on behalf of such Person, 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 specified in the Trust Agreement.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer with direct responsibility for the administration of this Guarantee 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.
"Securities" has the meaning specified in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as
of the date hereof, as amended, modified or supplemented from time to time,
among the trustees of the Trust named therein, the Guarantor, as sponsor, and
the Holders, from time to time, of undivided beneficial ownership interests in
the assets of the Trust.
"Trust Enforcement Event" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
ARTICLE II - TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
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(a) This Guarantee is subject to the provisions of the Trust Indenture
Act that are required to be part of this Guarantee and shall, to the extent
applicable, be governed by such provisions.
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(b) If and to the extent that any provision of this 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.
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(a) The Guarantor shall provide the Guarantee Trustee (i) except while
the Capital Securities are represented by one or more Global Securities, at
least two Business Days prior to the date for payment of Distributions, a list,
in such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Securities ("List of Holders") as of the record
date relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request from the
Guarantee Trustee 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 given to
the Guarantee Trustee by the Guarantor. The Guarantee Trustee shall preserve, in
as current a form as is reasonably practicable, all information contained in
Lists of Holders given to it; provided that 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, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
Section 2.3 Reports by Guarantee Trustee. Within 60 days after _________
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of each year (commencing with the year of the first anniversary of the issuance
of the Securities), the Guarantee Trustee shall provide to the Holders of the
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The 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
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provide to the Guarantee Trustee such documents, reports and information as
required by Section 314(a) of the Trust Indenture Act, if any, and the
compliance certificate required by Section 314(a) of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314(a) of the Trust
Indenture Act, but in no event later than 120 days after the end of each
calendar year.
Section 2.5 Evidence of Compliance with Conditions Precedent. The
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Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officer's Certificate.
Section 2.6 Guarantee Event of Default; Waiver. The Holders of a
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Majority in Liquidation Amount of the Capital Securities may, by vote or written
consent, on behalf of the Holders of all of the 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
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Guarantee, but no such waiver shall extend to any subsequent or other default or
Guarantee Event of Default or impair any right consequent thereon.
Section 2.7 Guarantee Event of Default; Notice.
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(a) The Guarantee Trustee shall, within 90 days after the occurrence
of a Guarantee Event of Default actually known to a Responsible Officer of the
Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all such Guarantee Events of Default, unless such
defaults have been cured before the giving of such notice; provided that, except
for a default in the payment of any Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof or a Responsible Officer of the Guarantee Trustee charged
with the administration of this Guarantee Agreement shall have obtained actual
knowledge thereof.
Section 2.8 Conflicting Interests. The Trust Agreement shall be deemed
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to be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 2.9 Disclosure of Information. The disclosure of information as
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to the names and addresses of the Holders of the Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law, or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
Section 2.10 Guarantee Trustee May File Proofs of Claim. Upon the
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occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee Payments
remaining unpaid and (b) file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have its claims and those of the
Holders of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE III - POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of Guarantee Trustee.
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(a) This Guarantee shall be held by the Guarantee Trustee on behalf of
the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
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
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the Guarantee Trustee in and to this Guarantee shall automatically vest in any
Successor Guarantee Trustee, and such vesting and succession of title shall be
effective whether or not conveyance documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee for the benefit of the Holders of the
Securities.
(c) This Guarantee and all moneys received by the Guarantee Trustee
hereunder in respect of the Guarantee Payments will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of, or for the
benefit of, the Guarantee Trustee or its agents or their creditors.
(d) The Guarantee Trustee, before the occurrence of any Guarantee
Event of Default and after the curing of all Guarantee Events of Default that
may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be read
into this Guarantee against the Guarantee Trustee. In case a Guarantee Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Guarantee Trustee has actual knowledge,
the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(e) No provision of this 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:
(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 Guarantee Trustee
shall be determined solely by the express provisions of this
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 Guarantee, and no implied
covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and
(B) 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 furnished to the Guarantee Trustee and conforming
to the requirements of this 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
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to examine the same to determine whether or not they conform
to the requirements of this Guarantee (but need not confirm
or investigate the accuracy of any mathematical calculations
or other facts stated therein);
(ii) 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;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it without negligence
and 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 Guarantee; and
(iv) no provision of this 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 (A) the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee or (B) indemnity reasonably
satisfactory to the Guarantee Trustee against such risk or liability
is not reasonably assured to it under the terms of this Guarantee.
Section 3.2 Certain Rights of Guarantee Trustee.
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(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document (whether in
its original or facsimile form) believed by it in good faith to be
genuine and to have been signed, sent or presented by the proper party
or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officer's
Certificate;
(iii) whenever, in the administration of this 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 Officer's Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
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(iv) the Guarantee Trustee shall have no duty to see to
any recording, filing or registration or any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or re-registration
thereof;
(v) the Guarantee Trustee may consult with counsel of its
choice, and the advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion (such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees); and the Guarantee Trustee shall have
the right at any time to seek instructions concerning the
administration of this Guarantee from any court of competent
jurisdiction;
(vi) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this 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
reasonable costs, expenses (including reasonable attorneys' fees and
expenses and the reasonable 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 a
Guarantee Event of Default which has not been cured or waived, of its
obligation to exercise the rights and powers vested in it by this
Guarantee;
(vii) 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;
(viii) the Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees 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;
(ix) any authorized or required action taken by the
Guarantee Trustee or its agents hereunder shall bind the Holders, and
the signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action, and 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 Guarantee, both of which shall be
conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action; and
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(x) whenever in the administration of this 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 (A) may request written instructions
from the Holders of a Majority in Liquidation Amount of the Capital
Securities, (B) may refrain from enforcing such remedy or right or
taking such other action until such written instructions are received
and (C) shall be protected in conclusively relying on or acting in
accordance with such written instructions.
(b) No provision of this 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 to act 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.
ARTICLE IV - GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee; Eligibility.
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(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any state or territory thereof
or of the District of Columbia, or a corporation or other Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the 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 or
becomes a creditor of the Guarantor during the time periods specified in Section
311 of the Trust Indenture Act, the Guarantee Trustee and the Guarantor shall in
all respects comply with the provisions of Section 310(b) or 311 of the Trust
Indenture Act, as applicable.
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Section 4.2 Appointment, Removal and Resignation of Guarantee Trustee.
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(a) Subject to Section 4.2(b), unless a Guarantee Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or 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 and the Guarantee Trustee being
removed.
(c) The Guarantee Trustee appointed to office shall hold such 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 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may petition at the expense of the
Guarantor any court of competent jurisdiction in the United States 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 Guarantee or removal or resignation of
the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to
the Guarantee Trustee all amounts owing hereunder for fees and reimbursement of
expenses which have accrued to the date of such termination, removal or
resignation.
ARTICLE V - GUARANTEE
Section 5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees
----------- ---------
to pay in full 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. Notwithstanding anything to the
contrary herein, the Guarantor retains all of its rights under the Indenture to
extend the interest payment period on the Debentures pursuant to Section 3.11
thereof and the Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extension Period (as defined in the Indenture) with respect
to the Distributions (as defined in the Trust Agreement) on the Securities.
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Section 5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice
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of acceptance of this 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,
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agreements and duties of the Guarantor under this 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 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 Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the 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);
(c) Any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the 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 Securities;
(f) The settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Guarantee Trustee or the Holders to
give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No set-off, counterclaim, reduction or diminution of any obligation, or any
defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available
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hereunder to the Guarantor against such Holder to reduce the payments to it
under this Guarantee.
Section 5.4 Rights of Holders.
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(a) The Holders of at least 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 Guarantee Trustee in
respect of this Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Guarantee.
(b) Any Holder of Securities may, subject to the subordination
provisions of Section 6.2, institute a legal proceeding directly against the
Guarantor to enforce the Guarantee Trustee's rights and the obligations of the
Guarantor under this Guarantee without first instituting a legal proceeding
against the Trust, the Guarantee Trustee or any other Person. The Guarantor
hereby waives any right or remedy to require that any action on this Guarantee
be brought first against the Trust or any other Person before proceeding
directly against the Guarantor.
Section 5.5 Guarantee of Payment. This Guarantee creates a guarantee of
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payment and not of collection.
Section 5.6 Subrogation. The Guarantor shall be subrogated to any and all
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rights of the Holders of Securities against the Trust in respect of any amounts
paid to such Holders by the Guarantor under this 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 Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this 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 Guarantee Trustee for the benefit of the Holders.
Section 5.7 Independent Obligations. The Guarantor acknowledges that its
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obligations hereunder are independent of the obligations of the Trust with
respect to the Securities, and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee notwithstanding the occurrence of any event referred to in Subsections
5.3(a) through 5.3(g), inclusive.
ARTICLE VI - LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1 Limitation of Transactions. So long as any Securities remain
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outstanding, if (a) there shall have occurred a Trust Enforcement Event, (b)
there shall have occurred a Guarantee Event of Default or (c) the Guarantor
shall have given notice of its election of an Extension Period as provided in
the certificate evidencing the Debentures and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing,
then the Guarantor shall not and, to the extent applicable, shall not permit any
subsidiary of the Guarantor to, (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 of or
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interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu with or junior in interest to
the Debentures or (iii) make any guarantee payments with respect to any
guarantee by the Guarantor of the debt securities of any subsidiary of the
Guarantor if such guarantee ranks pari passu with or junior in interest to the
Debentures (other than (A) dividends or distributions in Common Stock of the
Guarantor, (B) any declaration of a dividend in connection with the
implementation of a rights plan, or the issuance of stock under any such plan or
the redemption or repurchase of any such rights pursuant thereto, (C) as a
result of an exchange or conversion of one class or series of the Guarantor's
capital stock for another class or series of the Guarantor's capital stock, (D)
payments under this Guarantee and (E) purchases, repurchases, redemptions or
other acquisitions of shares of Common Stock in connection with any of the
Guarantor's benefits plans for its directors, officers or employees).
Section 6.2 Ranking. This Guarantee will constitute an unsecured obligation
----------- -------
of the Guarantor and will rank subordinate and junior in right of payment to all
Senior Debt (as defined in the Indenture) of the Guarantor in the same manner
and to the same extent as set forth in Article XIII of the Indenture.
Section 6.3 Subordination of Common Securities. If a Trust Enforcement
----------- ----------------------------------
Event has occurred and is continuing under the Trust Agreement, the rights of
the holders of the Common Securities to receive Guarantee Payments hereunder
shall be subordinated to the rights of the Holders of the Capital Securities to
receive Guarantee Payments under this Guarantee.
ARTICLE VII - TERMINATION
Section 7.1 Termination. This Guarantee shall terminate upon (a) full
----------- -----------
payment of the Redemption Price of all Securities, (b) distribution of the
Debentures to the Holders of all the Securities or (c) full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of the
Trust. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Securities must restore payment of any sums paid under the Securities or
under this Guarantee.
ARTICLE VIII - INDEMNIFICATION
Section 8.1 Indemnification. The Guarantor agrees to indemnify each
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Indemnified Person for, and to hold each Indemnified Person harmless against,
any loss, liability or expense incurred by such Indemnified Person 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
reasonable costs and expenses (including reasonable attorneys' fees) of
defending itself against, or investigating, any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
provisions of this Section 8.1 shall survive the termination of this Guarantee
or the resignation or removal of the Guarantee Trustee.
ARTICLE IX - MISCELLANEOUS
Section 9.1 Successors and Assigns. All guarantees and agreements contained
----------- ----------------------
in this Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the
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Guarantor and shall inure to the benefit of the Holders of the Securities then
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor that is permitted under Article VIII 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.
Section 9.2 Amendments. Except with respect to any changes that do not
----------- ----------
materially adversely affect the rights of the Holders (in which case no consent
of the Holders will be required), this Guarantee may not be amended without the
prior approval of the Holders of at least a Majority in Liquidation Amount of
the Securities; provided, however, that the rights of the Holders to institute
suit to enforce any Guarantee Payment as set forth in the second sentence of
Section 5.4(b) shall not be amended except with the approval of each of the
Holders affected thereby. The provisions of Section 11.2 of the Trust Agreement
with respect to meetings of, and action by written consent of, the Holders of
the Securities apply to the giving of such approval and any other approval of
the Holders of the Securities hereunder.
Section 9.3 Notices. All notices provided for in this Guarantee shall be in
----------- -------
writing, duly signed by the party giving such notice, and shall be delivered by
hand, 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 Guarantor and the Holders of the Securities):
The Bank of New York
[insert address]
Attention: Corporate Trust Department
Facsimile No.:____________
(b) if given to the Guarantor, at the Guarantor's mailing addresses
set forth below (or such other address as the Guarantor may give notice of to
the Guarantee Trustee and the Holders of the Securities):
▇▇▇▇▇▇▇▇▇▇ Corporation
Two Burlington Square
Burlington, Vermont 05401
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if given to any Holder of 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.
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Section 9.4 Benefit. This Guarantee is solely for the benefit of the
----------- -------
Holders of the Securities and, subject to Section 3.1(a), is not separately
transferable from the Securities.
Section 9.5 Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 9.6 Headings. Headings contained in this Guarantee are inserted for
----------- --------
convenience of reference only and do not affect the interpretation of this
Guarantee or any provision hereof.
Section 9.7 Counterparts. This Guarantee may be executed in counterparts,
----------- ------------
each of which shall be an original, but such counterparts shall together
constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Guarantee is executed as of the day and year first
above written.
▇▇▇▇▇▇▇▇▇▇ CORPORATION,
as Guarantor
By:_____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:_____________________________
Name:
Title:
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