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GUARANTEE AGREEMENT
▇▇▇▇▇▇▇▇▇-▇▇▇▇ FINANCING I
Dated as of March 23, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1Definitions and Interpretation 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1Trust Indenture Act: Application 4
SECTION 2.2List of Holders of Securities 4
SECTION 2.3Reports by the Guarantee Trustee 4
SECTION 2.4Periodic Reports to Guarantee Trustee 4
SECTION 2.5Evidence of Compliance with Conditions Precedent 5
SECTION 2.6Events of Default; Waiver 5
SECTION 2.7Event of Default; Notice 5
SECTION 2.8Conflicting Interests 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1Powers and Duties of the Guarantee Trustee 5
SECTION 3.2Certain Rights of the Guarantee Trustee 7
SECTION 3.3Not Responsible for Recitals or Issuance
of Guarantee 8
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1Guarantee Trustee; Eligibility 8
SECTION 4.2Appointment, Removal and Resignation of
Guarantee Trustees 9
ARTICLE V
GUARANTEE
SECTION 5.1Guarantee 9
SECTION 5.2Waiver of Notice and Demand 10
SECTION 5.3Obligations Not Affected 10
SECTION 5.4Rights of Holders 10
SECTION 5.5Guarantee of Payment 11
SECTION 5.6Subrogation 11
SECTION 5.7Independent Obligations 11
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1Limitation of Transactions 11
SECTION 6.2Ranking 12
ARTICLE VII
TERMINATION
SECTION 7.1Termination 12
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1Exculpation 12
SECTION 8.2Indemnification 13
ARTICLE IX
MISCELLANEOUS
SECTION 9.1Successors and Assigns 13
SECTION 9.2Amendments 13
SECTION 9.3Notices 14
SECTION 9.4Benefit 14
SECTION 9.5Governing Law. 14
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of
March 23, 1998, is executed and delivered by ▇▇▇▇▇▇▇▇▇-▇▇▇▇
Company, a New Jersey corporation (the "Guarantor"), and "The
First National Bank of Chicago", 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
▇▇▇▇▇▇▇▇▇-▇▇▇▇ Financing I, a Delaware business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of March 23, 1998, among the
trustees of the Issuer named therein, the Guarantor, as sponsor,
and the holders from time to time of undivided beneficial
ownership interests in the assets of the Issuer, the Issuer is
issuing on the date hereof 16,100,000 Capital Securities,
liquidation amount $25 per capital security, having an aggregate
liquidation amount of $402,500,000 designated the 6.22% Capital
Securities (the "Capital Securities") and 497,939 common
securities, liquidation amount $25 per common security, having an
aggregate liquidation amount $12,448,475, designated the 6.22%
Common Securities (the "Common Securities" and, together with the
FELINE PRIDES, the "Securities");
WHEREAS, as 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 the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein; and
WHEREAS, if an Event of Default (as defined in the
Declaration), has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments
under this Guarantee are subordinated to the rights of the
holders of the Capital Securities to receive Guarantee Payments
under this Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder, 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
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretation
In this Guarantee, unless the 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 reference 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 and
Sections are to Articles and Sections of this
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee, unless otherwise
defined in this Guarantee or unless the context
otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Business Day" means any day other than Saturday, Sunday or
any day on which banking institutions in the City of New York,
New York are authorized or required by any applicable law to
close.
"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
Agreement is located at The First National Bank of Chicago, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Services Division
"Covered Person" means any Holder or beneficial owner of
Securities.
"Debentures" means the series of debt securities of the
Guarantor designated the % Debentures due , 2003
held by the Institutional Trustee (as defined in the Declaration)
of the Issuer.
"Direction" by a person means a written direction signed:
(a) if the Person is a natural person, by that Person; or (b) in
any other case in the name of such Person by one or more
Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the
Securities, to the extent not paid or made by the Issuer: (i) any
accrued and unpaid Distributions (as defined in the Declaration)
that are required to be paid on such Securities to the extent
the Issuer shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid distributions
to the date of redemption (the "Redemption Price") with respect
to Securities in respect of which the related Debentures have
been redeemed by the Company upon the occurrence of a Tax Event
Redemption, to the extent the Issuer has funds available
therefor, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange
for the Securities as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Securities to the date of payment, to
the extent the Issuer shall have funds available therefor, and
(b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an event of default
under the Indenture has occurred and is continuing, the rights of
holders of the Common Securities to receive payments under this
Guarantee Agreement are subordinated to the rights of holders of
Capital Securities to receive Guarantee Payments under this
Guarantee.
"Holder" shall mean any holder, as registered on the books
and records of the Issuer, of any Securities; provided, however,
that, in determining whether the holders of the requisite
percentage of Securities have given any request, notice, consent
or waiver hereunder, "Holder" shall not include the Guarantor or
any Affiliate of the Guarantor.
"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 March 23, 1998,
among the Guarantor (the "Debenture Issuer") and The Bank of New
York, as trustee, and any indenture supplemental thereto pursuant
to which certain debt securities of the Debenture Issuer are to
be issued to the Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by
Holder(s) of Securities, voting separately as a class, of more
than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this 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.
"Guarantee Trustee" means The First National Bank of
Chicago, 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.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust office of the
Guarantee Trustee, including any vice-president, any assistant
vice-president, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the Corporate Trust
Office 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.
"Tax Event Redemption" has the same meaning as defined in
Annex I to the Declaration.
"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 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; and
(b) If and to the extent that any provision of this
Guarantee limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 2.2 List of Holders of Securities
(a) The Guarantor shall provide the Guarantee Trustee with
a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of
Holders") as of such date, (i) within 1 Business Day after
January 1 and July 1 of each year, 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 14 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 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 Section 311(a), 311(b) and Section 312(b) of
the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
Within 60 days after May 15 of each year, the Guarantee
Trustee shall provide to the Holders such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form
and in the manner provided by Section 313 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 Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of
Securities may, by vote, on behalf of all Holders, 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 Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, actually known to a
Responsible Officer of the Guarantee Trustee transmit by mail,
first class postage prepaid, to the Holders, notices of all such
Events of Default, unless such defaults have been cured or waived
before the giving of such notice, provided, that, 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.
(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 thereof, or a Responsible
Officer of the Guarantee Trustee charged with the administration
of the Declaration shall have obtained actual knowledge thereof.
SECTION 2.8 Conflicting Interests
The Declaration and the Indenture shall be deemed 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.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) This Guarantee shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall
not transfer this Guarantee to any Person except a Holder
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 Guarantee for the
benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any
Event of Default and after the curing or waiver of all 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 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 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 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 Event of Default
and after the curing or waiving of such 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 to examine the same to determine whether or not
they conform to the requirements of this Guarantee;
(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 in
good faith in accordance with the direction of the Holders
of not less than a Majority in liquidation amount of the
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 the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Guarantee or indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of the Guarantee Trustee
(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 believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated
by this Guarantee shall be sufficiently evidenced by a
Direction or an Officers' 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 Officers' Certificate
which, upon receipt of such request, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument
(or any rerecording, refiling or reregistration thereof).
(v) The Guarantee Trustee may consult with competent
legal counsel, and the written advice or opinion of such
counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The
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 costs,
expenses (including attorneys' fees and expenses and the
expenses of the Guarantee Trustees, 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 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, 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.
(ix) Any 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. 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.
(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
(i) may request instructions from the Holders of a Majority
in liquidation amount of the 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.
(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 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.
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 Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be 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 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 750 million U.S. dollars
($750,000,000), 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, 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
Trustees
(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.
(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 60 days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
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 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 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 Issuer), as and
when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, 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 Issuer of any
express or implied agreement, covenant, term or condition
relating to the to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of
all or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the 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 Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the
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 Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
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 Guarantee or exercising any
trust or power conferred upon the Guarantee Trustee under this
Guarantee.
(b) If the Guarantee Trustee fails to enforce this
Guarantee, any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee,
without first instituting a legal proceeding against the Issuer,
the Guarantee Trustee or any other Person. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder may directly institute a proceeding against the
Guarantor for enforcement of the Guarantee for such payment. The
Guarantor waives any right or remedy to require that any action
on this Guarantee be brought first against the Issuer or any
other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
This Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of
the Holders against the Issuer 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 Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Issuer with respect to
the 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 (a) through
(g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Securities remain outstanding, if there
shall have occurred an Event of Default or an Event of Default
under the Declaration and written notice of such Event of Default
has been given to the Guarantor, then (a) the Guarantor shall not
declare or pay any dividend on, make any distribution with
respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of capital stock of the Guarantor in
connection with the satisfaction by the Guarantor of its
obligations under any employee or agent benefit plans or the
satisfaction by the Guarantor of its obligations pursuant to any
contract or security outstanding on the date of such event
requiring the Guarantor to purchase capital stock of the
Guarantor, (ii) as a result of a reclassification of the
Guarantor's capital stock or the 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, (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) dividends or distributions in capital stock of
the Guarantor (or rights to acquire capital stock) or repurchases
or redemptions of capital stock solely from the issuance or
exchange of capital stock or (v) redemptions or purchases of any
rights outstanding under a shareholder rights plan (or the
declaration thereunder of a dividend of rights in the future),
(b) the Guarantor shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem
any debt securities issued by the Guarantor that rank junior to
the Debentures, and (c) the Guarantor shall not make any
guarantee payments with respect to the foregoing (other than
payments pursuant to the Guarantee).
SECTION 6.2 Ranking
This Guarantee will constitute a senior unsecured obligation
of the Guarantor and, at all times when an Event of Default has
occurred and is continuing under the Declaration, will rank:
(i) pari passu with all of the Guarantor's senior
unsecured obligations except those made subordinate hereto
by their terms; and
(ii) senior to the Guarantor's common stock.
If an event of default under the Indenture has occurred and
is continuing, the rights of the holders of the Common Securities
will be subordinate and junior in right of payment and shall not
be paid until the prior payment in full of, all amounts due and
owing to the holders of the Capital Securities.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Guarantee shall terminate upon (i) full payment of the
Repayment Price of all Securities, (ii) upon the distribution of
the Debentures to all Holders or (iii) upon full payment of the
amounts payable in accordance with the Declaration upon
liquidation of the Issuer. 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 must restore payment
of any sums paid under the Securities or under this Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this 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 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 might properly be paid.
SECTION 8.2 Indemnification
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by
such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee and in a manner such Indemnified
Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Guarantee, except
that no Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
reasonable out-of-pocket expenses (including legal fees) incurred
by an Indemnified Person in defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person
is not entitled to be indemnified as authorized in Section
8.2(a).
(c) The provisions set forth in this Section 8.2 shall
survive the termination of the 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 Guarantor and shall inure to the benefit
of the Holders of the Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely
affect the rights of Holders (in which case no consent of Holders
will be required), this Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in
liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting
percentages are determined) of all the outstanding Securities.
The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders apply to the giving of such approval.
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, 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 Securities):
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
Services Division
(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):
▇▇▇▇▇▇▇▇▇-▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
(c) If given to any Holder, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed
by first class mail, postage prepaid except that if a notice or
other document is refused delivery or cannot be delivered because
of a changed address of which no notice was given, such notice or
other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Guarantee is solely for the benefit of the Holders 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 CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
THIS GUARANTEE is executed as of the day and year first
above written.
▇▇▇▇▇▇▇▇▇-▇▇▇▇ COMPANY,
as Guarantor
By:_____________________________
Name:
Title:
By: ____________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By: _____________________________
Name:
Title: