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EXHIBIT 4.9
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FORM OF
SEITEL, INC.
PREFERRED SECURITIES GUARANTEE AGREEMENT
SEITEL CAPITAL TRUST [I] [II]
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Dated as of ,
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.............................................................................................2
SECTION 1.01 Definitions..............................................................................2
ARTICLE II TRUST INDENTURE ACT....................................................................................6
SECTION 2.01 Trust Indenture Act; Application.........................................................6
SECTION 2.02 Lists of Holders of Preferred Securities.................................................6
SECTION 2.03 Reports by the Preferred Securities Guarantee Trustee....................................6
SECTION 2.04 Periodic Reports to the Preferred Securities Guarantee Trustee...........................7
SECTION 2.05 Evidence of Compliance with Conditions Precedent.........................................7
SECTION 2.06 Events of Default; Waiver................................................................7
SECTION 2.07 Disclosure of Information................................................................8
SECTION 2.08 Conflicting Interest.....................................................................8
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE PREFERRED SECURITIES
GUARANTEE TRUSTEE........................................................................................8
SECTION 3.01 Powers and Duties of the Preferred Securities Guarantee Trustee..........................8
SECTION 3.02 Certain Rights and Duties of the Preferred Securities Guarantee
Trustee.........................................................................................9
SECTION 3.03 Not Responsible for Recitals or Issuance of Guarantee...................................11
SECTION 3.04 The Preferred Securities Guarantee Trustee May Own Preferred
Securities.....................................................................................12
SECTION 3.05 Compensation and Expenses of Preferred Securities Guarantee
Trustee........................................................................................12
ARTICLE IV PREFERRED SECURITIES GUARANTEE TRUSTEE................................................................12
SECTION 4.01 Qualifications..........................................................................12
SECTION 4.02 Appointment, Removal and Registration of the Preferred Securities
Guarantee Trustee..............................................................................13
ARTICLE V GUARANTEE..............................................................................................14
SECTION 5.01 Guarantee...............................................................................14
SECTION 5.02 Waiver of Notice........................................................................14
SECTION 5.03 Obligations Not Affected................................................................15
SECTION 5.04 Enforcement of Guarantee................................................................16
SECTION 5.05 Guarantee of Payment....................................................................16
SECTION 5.06 Subrogation.............................................................................16
SECTION 5.07 Independent Obligations.................................................................17
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.............................................................17
SECTION 6.01 Limitation of Transactions..............................................................17
SECTION 6.02 Subordination...........................................................................18
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ARTICLE VII TERMINATION..........................................................................................18
SECTION 7.01 Termination.............................................................................18
ARTICLE VIII LIMITATION OF LIABILITY; INDEMNIFICATION............................................................19
SECTION 8.01 Exculpation.............................................................................19
SECTION 8.02 Indemnification.........................................................................19
SECTION 8.03 Survive Termination.....................................................................19
ARTICLE IX MISCELLANEOUS.........................................................................................20
SECTION 9.01 Successors and Assigns..................................................................20
SECTION 9.02 Amendments..............................................................................20
SECTION 9.03 Notices.................................................................................20
SECTION 9.04 Genders.................................................................................21
SECTION 9.05 Benefits................................................................................21
SECTION 9.06 Governing Law...........................................................................21
SECTION 9.07 Counterparts............................................................................21
SECTION 9.08 Exercise of Overallotment Option........................................................21
SECTION 9.09 Agent for Service of Process............................................................22
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT, dated as of __________,
______, is executed and delivered by SEITEL, INC., a Delaware corporation (the
"Guarantor"), and The First National Bank of Chicago, as the initial Preferred
Securities Guarantee Trustee (as defined herein) for the benefit of the Holders
(as defined herein) from time to time of the Preferred Securities (as defined
herein) of Seitel Capital Trust [I] [II], a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ____________ , _________, among the trustees of the
Issuer named therein, Seitel, Inc., as Sponsor, and the Holders from time to
time of preferred undivided beneficial interests in the assets of the Issuer,
the Issuer may issue up to $ ______________ aggregate liquidation amount of its
_____ % [[Convertible] Trust Preferred Securities] (the "Preferred Securities")
representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in Exhibit B to the Declaration [, of
which $ ____________ liquidation amount of Preferred Securities is being issued
as of the date hereof. Up to the remaining $ ___________ liquidation amount of
Preferred Securities may be issued by the Issuer if and to the extent that the
over-allotment option granted by the Guarantor and the Issuer pursuant to the
Underwriting Agreement (as defined in the Declaration) is exercised by the
Underwriters named in the Underwriting Agreement];
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires to irrevocably and unconditionally agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein; and
WHEREAS, the Guarantor is executing and delivering a guarantee
agreement (the "Common Securities Guarantee Agreement"), with substantially
identical terms to this Preferred Securities Guarantee, for the benefit of the
holders of the Common Securities (as defined herein), except that 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
the Common Securities Guarantee Agreement are subordinated, to the extent and in
the manner set forth in the Common Securities Guarantee Agreement, to the rights
of holders of Preferred Securities to receive Guarantee Payments under this
Guarantee;
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Securities, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Preferred Securities Guarantee Agreement for the benefit of the Holders from
time to time.
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
In this Preferred Securities Guarantee Agreement, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities Guarantee
Agreement but not defined in the preamble or recitals above have the respective
meanings assigned to them in this Section 1.01.
(b) A term defined in the Declaration or the Indenture has the same
meaning when used in this Preferred Securities Guarantee Agreement unless
otherwise defined in this Preferred Securities Guarantee Agreement.
(c) A term defined anywhere in this Preferred Securities Guarantee
Agreement has the same meaning throughout.
(d) All references to "the Preferred Securities Guarantee Agreement" or
"this Preferred Securities Guarantee Agreement" are to this Preferred Securities
Guarantee Agreement as modified, supplemented or amended from time to time.
(e) All references in this Preferred Securities Guarantee Agreement to
Articles and Sections are to Articles and Sections of this Preferred Securities
Guarantee Agreement unless otherwise specified.
(f) A term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee Agreement unless otherwise defined
in this Preferred Securities Guarantee Agreement or unless the context otherwise
requires.
(g) A reference to the singular includes the plural and vice versa.
"Additional Amounts" has the meaning set forth in the Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
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"Business Day" has the meaning set forth in the Indenture.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in Exhibit C to the Declaration.
"Debentures" means the series of [convertible] junior subordinated
debentures issued to the Property Trustee by the Guarantor under the Indenture
and entitled the " ________ % [Convertible] Junior Subordinated Debentures due
____."
"Declaration" has the meaning set forth in the recitals above.
"Distributions" means the periodic distributions and other payments
payable to Holders in accordance with the terms of the Preferred Securities set
forth in Exhibit B to the Declaration.
"Dollar" has the meaning set forth in the Indenture.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee
Agreement; provided, however, that, except with respect to a default in payment
of any Guarantee Payment, any such default shall constitute an Event of Default
only if the Guarantor shall have received notice of such default and shall not
have cured such default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions, any Additional Amounts and the Redemption Price, including all
accumulated and unpaid Distributions to the date of redemption, with respect to
the Preferred Securities called for redemption by the Issuer, but only if and to
the extent that in each case the Guarantor has made a payment to the Property
Trustee of principal of, any premium or interest on or any Additional Amounts
with respect to the Debentures and (ii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to Holders in exchange for Preferred
Securities or the redemption of the Preferred Securities in full upon the
maturity or redemption of the Debentures as provided in the Declaration), the
lesser of (a) the aggregate of the liquidation amount and all accumulated and
unpaid Distributions and Additional Amounts on the Preferred Securities to the
date of payment, to the extent the Issuer has funds on hand legally available
therefor, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer as required by applicable
law.
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"Holder" means any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred 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 Preferred Securities Guarantee Trustee,
any Affiliate of the Preferred Securities Guarantee Trustee, and any officers,
directors, shareholders, members, partners, employees, representatives or agents
of the Preferred Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of ____________, ______
between the Guarantor and The First National Bank of Chicago, as trustee, as
supplemented by the __________ Supplemental Indenture thereto dated as of
_________, _______ (the "Supplemental Indenture"), pursuant to which the
Debentures are to be issued to the Property Trustee.
"Majority" in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holders of outstanding
Preferred Securities, voting together as a single class, who are the record
owners of Preferred Securities whose 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) represents more than 50% of the liquidation amount
of all outstanding Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the chief financial officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of such Person, and delivered to the Preferred Securities
Guarantee Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 2.04 shall be the principal executive, financial or
accounting officer of the Guarantor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Preferred Securities Guarantee Agreement shall include:
(i) a statement that the person making such certificate has read such
covenant or condition;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate are based;
(iii) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Preferred Securities" has the meaning set forth in the recitals above.
"Preferred Securities Guarantee Trustee" means The First National Bank
of Chicago, a national banking association, until a Successor Preferred
Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee
Agreement, and thereafter means each such Successor Preferred Securities
Guarantee Trustee.
"Property Trustee" means the Person acting as Property Trustee under
the Declaration.
"Redemption Price" means the amount payable on redemption of the
Preferred Securities in accordance with the terms of the Preferred Securities.
"Responsible Officer" means, when used with respect to the Preferred
Securities Guarantee Trustee, any officer within the corporate trust department
of the Preferred Securities Guarantee Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Preferred Securities Guarantee Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person's knowledge of and familiarity with
the particular subject and, in either case, who shall have direct responsibility
for the administration of this Preferred Securities Guarantee.
"Shares" means the common stock, par value $.01 per share, of the
Guarantor.
"Successor Preferred Securities Guarantee Trustee" means a successor
Preferred Securities Guarantee Trustee possessing the qualifications to act as a
Preferred Securities Guarantee Trustee under Section 4.01.
"Supplemental Indenture" has the meaning specified in the definition
of Indenture.
"Trust Indenture Act"means the Trust Indenture Act of 1939, as amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Preferred
Securities Guarantee Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
(c) The application of the Trust Indenture Act to this Preferred
Securities Guarantee Agreement shall not affect the nature of the Preferred
Securities as equity securities representing preferred undivided beneficial
interests in the assets of the Issuer.
SECTION 2.02 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the Preferred Securities Guarantee
Trustee (unless the Preferred Securities Guarantee Trustee is the registrar of
the Preferred Securities) (i) within 14 days after each record date for payment
of Distributions, a list, in such form as the Preferred Securities Guarantee
Trustee may reasonably require, of the names and addresses of the Holders ("List
of Holders") as of such date, and (ii) at any other time, within 30 days of
receipt by the Guarantor of a written request for a List of Holders as of a date
no more than 15 days before such List of Holders is given to the Preferred
Securities Guarantee Trustee; provided that in each case the Guarantor shall not
be obligated to provide such List of Holders at any time that the List of
Holders does not differ from the most recent List of Holders given to the
Preferred Securities Guarantee Trustee by the Guarantor. The Preferred
Securities Guarantee Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in the Lists of Holders given
to it; provided that the Preferred Securities Guarantee Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Preferred Securities Guarantee Trustee shall comply with its
obligations under Section 312(b) of the Trust Indenture Act.
SECTION 2.03 Reports by the Preferred Securities Guarantee Trustee.
Within 60 days after May 15 of each year, commencing May 15, _______,
the Preferred Securities Guarantee Trustee shall deliver to the Holders such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form, in the manner and at the times provided by Section 313 of the Trust
Indenture Act. The Preferred Securities Guarantee Trustee shall also comply with
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the other requirements of Section 313 of the Trust Indenture Act. A copy of each
such report shall, at the time of such transmission to the Holders, be filed by
the Preferred Securities Guarantee Trustee with the Guarantor, with each stock
exchange or quotation system upon which any Preferred Securities are listed or
traded (if so listed or traded) and with the Commission. The Guarantor agrees to
notify the Preferred Securities Guarantee Trustee when any Preferred Securities
become listed on any stock exchange or quotation system and of any delisting
thereof.
SECTION 2.04 Periodic Reports to the Preferred Securities Guarantee
Trustee.
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee, the Commission and the Holders, as applicable, such documents, reports
and information as required by Section 314 (if any) of the Trust Indenture Act
and the compliance certificates required by Section 314 of the Trust Indenture
Act, provided that any such compliance certificate shall be provided within 120
days of the end of each fiscal year of the Issuer. Delivery of such reports,
information and documents to the Preferred Securities Guarantee Trustee is for
informational purposes only and the Preferred Securities Guarantee Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Preferred Securities Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates or on certificates
provided pursuant to this Section 2.04).
SECTION 2.05 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Preferred Securities Guarantee Agreement which 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) may be given in the form of an Officers' Certificate.
SECTION 2.06 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities may, by vote, on behalf of the 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 Preferred Securities Guarantee
Agreement, but no such waiver shall extend to any subsequent or other default or
Event of Default, or impair any right consequent thereon.
(b) The right of any Holder to receive payment of the Guarantee
Payments in accordance with this Preferred Securities Guarantee Agreement, or to
institute suit for the enforcement of any such payment, shall not be impaired
without the consent of each such Holder.
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SECTION 2.07 Disclosure of Information.
The disclosure of information as to the names and addresses of the
Holders 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
Preferred Securities 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 2.08 Conflicting Interest.
(a) The Declaration shall be deemed to be specifically described in
this Preferred Securities Guarantee Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
(b) The Preferred Securities Guarantee Trustee shall comply with its
obligations under Section 310(b) and 311(a) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE PREFERRED
SECURITIES GUARANTEE TRUSTEE
SECTION 3.01 Powers and Duties of the Preferred Securities
Guarantee Trustee.
(a) This Preferred Securities Guarantee Agreement shall be held by the
Preferred Securities Guarantee Trustee in trust for the benefit of the Holders.
The Preferred Securities Guarantee Trustee shall not transfer its right, title
and interest in this Preferred Securities Guarantee Agreement to any Person
except a Successor Preferred Securities Guarantee Trustee on acceptance by such
Successor Preferred Securities Guarantee Trustee of its appointment to act as
Preferred Securities Guarantee Trustee or to a Holder exercising his or her
rights pursuant to Section 5.04(d). The right, title and interest of the
Preferred Securities Guarantee Trustee to this Preferred Securities Guarantee
Agreement shall vest automatically in each Person who may hereafter be appointed
as Preferred Securities Guarantee Trustee in accordance with Article IV. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) If an Event of Default has occurred and is continuing, the
Preferred Securities Guarantee Trustee shall enforce this Preferred Securities
Guarantee Agreement for the benefit of the Holders.
(c) This Preferred Securities Guarantee Agreement and all moneys
received by the Preferred Securities Guarantee Trustee in respect of the
Guarantee Payments will not be subject to
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any right, charge, security interest, lien or claim of any kind in favor of, or
for the benefit of, the Preferred Securities Guarantee Trustee or its agents or
their creditors.
(d) The Preferred Securities Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default actually known to a Responsible
Officer of the Preferred Securities Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, as their names and addresses appear upon
the List of Holders, notice of all such Events of Default, unless such defaults
shall have been cured before the giving of such notice; provided that the
Preferred Securities Guarantee Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Preferred
Securities Guarantee Trustee in good faith determine that the withholding of
such notice is in the interests of the Holders. The Preferred Securities
Guarantee Trustee shall not be deemed to have knowledge of any Event of Default
except any Event of Default as to which the Preferred Securities Guarantee
Trustee shall have received written notice or a Responsible Officer charged with
the administration of this Preferred Securities Guarantee Agreement shall have
obtained actual knowledge of such Event of Default.
(e) The Preferred Securities Guarantee Trustee shall continue to serve
as a trustee until a Successor Preferred Securities Guarantee Trustee has been
appointed and accepted that appointment in accordance with Article IV.
SECTION 3.02 Certain Rights and Duties of the Preferred Securities
Guarantee Trustee.
(a) The Preferred Securities Guarantee Trustee, before the occurrence
of an Event of Default and after the curing or waiving of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee Agreement, and no
implied covenants shall be read into this Preferred Securities Guarantee
Agreement against the Preferred Securities Guarantee Trustee. In case an Event
of Default has occurred (that has not been cured or waived pursuant to Section
2.06), the Preferred Securities Guarantee Trustee shall exercise such of the
rights and Powers vested in it by this Preferred Securities Guarantee Agreement,
and use the same degree of care and skill in its exercise thereof, as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) No provision of this Preferred Securities Guarantee Agreement shall
be construed to relieve the Preferred Securities 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 an Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Securities
Guarantee Trustee shall be determined solely by the express provisions
of this Preferred Securities Guarantee
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Agreement, and the Preferred Securities Guarantee Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Preferred Securities Guarantee
Agreement, and no implied covenants or obligations shall be read into
this Preferred Securities Guarantee Agreement against the Preferred
Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Securities Guarantee Trustee, the Preferred Securities 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 Preferred Securities
Guarantee Trustee and conforming to the requirements of this Preferred
Securities Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or the Trust
Indenture Act are specifically required to be furnished to the
Preferred Securities Guarantee Trustee, the Preferred Securities
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Preferred Securities Guarantee Agreement or the Trust Indenture Act, as
the case may be;
(ii) the Preferred Securities Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Preferred Securities Guarantee Trustee, unless it shall be proved that the
Preferred Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Securities 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 a Majority in liquidation amount
of the Preferred Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Preferred Securities Guarantee
Trustee, or exercising any trust or power conferred upon the Preferred
Securities Guarantee Trustee under this Preferred Securities Guarantee
Agreement; and
(iv) no provision of this Preferred Securities Guarantee Agreement
shall require the Preferred Securities 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 it 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 Preferred
Securities Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.02(a) and (b):
(i) whenever in the administration of this Preferred Securities
Guarantee Agreement, the Preferred Securities Guarantee Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Preferred Securities Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on
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its part, request and rely upon an Officers' Certificate, which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
(ii) the Preferred Securities Guarantee Trustee (A) may consult with
counsel (which may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees) selected by it in good faith and with due care 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 reliance thereon
and in accordance with such advice and opinion and (B) shall have the right at
any time to seek instructions concerning the administration of this Preferred
Securities Guarantee Agreement from any court of competent jurisdiction;
(iii) the Preferred Securities Guarantee Trustee may execute any of the
trusts or Powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Preferred Securities Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) the Preferred Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have offered to the Preferred Securities
Guarantee Trustee security and indemnity satisfactory to the Preferred
Securities Guarantee Trustee against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be incurred by it in complying
with such request or direction; provided that nothing contained in this clause
(iv) shall relieve the Preferred Securities Guarantee Trustee of the obligation,
upon the occurrence of an Event of Default (which has not been cured or waived)
to exercise such of the rights and powers vested in it by this Preferred
Securities Guarantee Agreement, and to use the same degree of care and skill in
this exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs; and
(v) any action taken by the Preferred Securities Guarantee Trustee or
its agents hereunder shall bind the Holders, and the signature of the Preferred
Securities 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 Preferred Securities Guarantee Trustee to so
act, or as to its compliance with any of the terms and provisions of this
Preferred Securities Guarantee Agreement, both of which shall be conclusively
evidenced by the Preferred Securities Guarantee Trustee's or its agent's taking
such action.
SECTION 3.03 Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Preferred Securities Guarantee
Agreement shall be taken as the statements of the Guarantor, and the Preferred
Securities Guarantee Trustee does not assume any responsibility for their
correctness. The Preferred Securities Guarantee Trustee makes no
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representations as to the validity or sufficiency of this Preferred Securities
Guarantee Agreement.
SECTION 3.04 The Preferred Securities Guarantee Trustee May Own
Preferred Securities.
The Guarantee Trustee, in its individual or any other capacity, may
become the owner or pledgee of Preferred Securities and may otherwise deal with
the Guarantor with the same rights it would have if it were not the Preferred
Securities Guarantee Trustee
SECTION 3.05 Compensation and Expenses of Preferred Securities
Guarantee Trustee.
The Guarantor covenants and agrees to pay to the Preferred Securities
Guarantee Trustee from time to time, and the Preferred Securities Guarantee
Trustee shall be entitled to, such compensation as the Guarantor and the
Preferred Securities Guarantee Trustee shall from time to time agree in writing
(which shall not be limited by any provision of law in regard to the
compensation of a Preferred Securities Guarantee Trustee of an express trust)
for all services rendered by it in the exercise and performance of any of the
powers and duties hereunder of the Preferred Securities Guarantee Trustee, and
the Guarantor will pay or reimburse the Preferred Securities Guarantee Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Preferred Securities Guarantee Trustee in accordance
with any of the provisions of this Preferred Securities Guarantee Agreement
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Guarantor also covenants to indemnify each of the
Preferred Securities Guarantee Trustee or any predecessor Preferred Securities
Guarantee Trustee and their officers, agents, directors and employees for, and
to hold them harmless against, any and all loss, liability, damage, claim or
expense including taxes (other than taxes based upon, measured by or determined
by the income, profit, franchise or doing business of the Preferred Securities
Guarantee Trustee) incurred without negligence or bad faith on the part of the
Preferred Securities Guarantee Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim (whether asserted by the
Guarantor, any Holder or any other Person) of liability in the premises. The
provisions of this Section 3.06 shall survive the termination of this Preferred
Securities Guarantee Agreement and resignation or removal of the Preferred
Securities Guarantee Trustee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.01 Qualifications.
There shall at all times be a Preferred Securities Guarantee Trustee
that shall:
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(i) not be an Affiliate of the Guarantor; and
(ii) be a national banking association or 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 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 $50,000,000, 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 clause (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.
If at any time the Preferred Securities Guarantee Trustee shall cease
to satisfy the requirements of clauses (i) and (ii) above, the Preferred
Securities Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.02. If the Preferred Securities Guarantee Trustee
has or shall acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Preferred Securities Guarantee Trustee
and the Guarantor shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 4.02 Appointment, Removal and Registration of the Preferred
Securities Guarantee Trustee.
(a) Subject to Section 4.02(b), the Preferred Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Securities Guarantee Trustee shall not be removed in
accordance with Section 4.02(a) until a Successor Preferred Securities Guarantee
Trustee possessing the qualifications to act as Preferred Securities Guarantee
Trustee under Section 4.01 has been appointed and has accepted such appointment
by written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor and the Preferred Securities Guarantee
Trustee being removed.
(c) The Preferred Securities Guarantee Trustee appointed to office
shall hold office until its successor shall have been appointed or until its
removal or resignation.
(d) The Preferred Securities Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument (a
"Resignation Request") in writing signed by the Preferred Securities Guarantee
Trustee and delivered to the Guarantor, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that no such resignation of the Preferred Securities Guarantee Trustee
shall be effective until a Successor Preferred Securities Guarantee Trustee
possessing the qualifications to act as Preferred Securities
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Guarantee Trustee under Section 4.01 has been appointed and has accepted such
appointment by instrument executed by such Successor Preferred Securities
Guarantee Trustee and delivered to the Guarantor and the resigning Preferred
Securities Guarantee Trustee.
(e) If no Successor Preferred Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.02 within
60 days after delivery to the Guarantor of a Resignation Request, the resigning
Preferred Securities Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Securities Guarantee
Trustee. Such court may thereupon after such notice, if any, as it may deem
proper, appoint a Successor Preferred Securities Guarantee Trustee.
(f) No Preferred Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(g) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Preferred Securities Guarantee Trustee pursuant to this
Section 4.02, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.01 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim which the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.02 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee Agreement and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the 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. 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 and the Guarantor shall not be obligated
hereunder to make any Guarantee Payment during any
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Extended Interest Payment Period (as defined in the Supplemental Indenture) with
respect to the Distributions on the Preferred Securities.
SECTION 5.03 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee Agreement shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution (as
defined in the Declaration) or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions that
result from the extension of any interest payment period on the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Preferred Securities Guarantee Trustee or the Holders to enforce, assert or
exercise any right, privilege, power or remedy conferred on the Preferred
Securities Guarantee Trustee or the Holders pursuant to the terms hereof or of
the Preferred Securities, respectively, 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 Preferred
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 5.03 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
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There shall be no obligation of the Preferred Securities Guarantee
Trustee or the Holders to give notice to, or obtain consent of, the Guarantor
with respect to the happening of any of the foregoing.
SECTION 5.04 Enforcement of Guarantee.
The Guarantor and the Preferred Securities Guarantee Trustee expressly
acknowledge and agree that (a) this Preferred Securities Guarantee Agreement
will be deposited with the Preferred Securities Guarantee Trustee to be held for
the benefit of the Holders; (b) the Preferred Securities Guarantee Trustee has
the right to enforce this Preferred Securities Guarantee Agreement on behalf of
the Holders; (c) Holders representing not less than a Majority in liquidation
amount of the Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Preferred
Securities Guarantee Trustee in respect of this Preferred Securities Guarantee
Agreement or exercising any trust or other power conferred upon the Preferred
Securities Guarantee Trustee under this Preferred Securities Guarantee
Agreement; and (d) if the Preferred Securities Guarantee Trustee fails to
enforce this Preferred Securities Guarantee Agreement as provided in clauses (b)
and (c) above, any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Preferred Securities Guarantee
Agreement, without first instituting a legal proceeding against the Issuer, the
Preferred Securities 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 this
Preferred Securities Guarantee Agreement for such payment without first
instituting a legal proceeding against the Issuer, the Preferred Securities
Guarantee Trustee or any other Person.
SECTION 5.05 Guarantee of Payment.
This Preferred Securities Guarantee Agreement creates a guarantee of
payment and not merely of collection.
SECTION 5.06 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Preferred Securities Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Preferred Securities
Guarantee Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee Agreement. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
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SECTION 5.07 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, the Guarantor
shall not (a) declare or pay dividends on, or redeem, purchase, acquire or make
a distribution or liquidation payment with respect to, any of Guarantor's
capital stock (other than (i) dividends or distributions in shares of, or
options, warrants, rights to subscribe for or purchase shares of common stock of
the Guarantor, (ii) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (iii) as a result of a reclassification of one class or series
of the Guarantor's capital stock or the exchange or the conversion of one class
or series of the Guarantor's capital stock for another class or series of the
Guarantor's capital stock, (iv) the payment of accrued dividends and the
purchase of fractional interests in the Guarantor's share capital pursuant to
the conversion or exchange provisions of such share capital or the security
being converted or exchanged, or (v) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's benefit plans
for its directors, officers or employees, any of the Guarantor's dividend
reinvestment plans or stock purchase plans, or any of the benefit plans of any
of the Guarantor's Affiliates, for such Affiliate's directors, officers or
employees); (b) make any payment of principal of or interest or premium, if any,
on, or repay, repurchase or redeem, any debt security of the Guarantor that
ranks pari passu with or junior in interest to the Debentures; or (c) make any
guarantee payments with respect to any guarantee by the Guarantor of the debt
securities of any Subsidiary (as defined in the Indenture) of the Guarantor
(other than pursuant to this Preferred Securities Guarantee Agreement) if such
guarantee ranks pari passu with or junior in interest to the Debentures, if at
such time (i) the Guarantor shall be in default with respect to its Guarantee
Payments or other payment obligations hereunder, (ii) there shall have occurred
and be continuing any Event of Default under the Indenture or (iii) the
Guarantor shall have given notice of its election of the exercise of its right
to extend the interest payment period on the Debentures as permitted by the
Indenture and such extension is continuing. In addition, so long as any
Preferred Securities remain outstanding, the Guarantor (i) will remain the sole
direct or indirect owner of all of the outstanding Common Securities and shall
not cause or permit the Common Securities to be transferred except to the extent
such transfer is permitted under Section 9.01 of the Declaration; provided that
any permitted successor of the Guarantor under the Indenture may succeed to the
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Guarantor's ownership of the Common Securities, and (ii) will use reasonable
efforts to cause the Issuer to continue to be treated as a grantor trust for
United States federal income tax purposes except in connection with a
distribution of Debentures as provided in the Declaration.
SECTION 6.02 Subordination.
This Preferred Securities Guarantee Agreement will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor (other than the
obligations of the Guarantor under the Common Securities Guarantee Agreement,
which are subordinate and junior to this Preferred Securities Guarantee
Agreement to the extent provided therein) and (ii) senior to all capital stock
now or hereafter issued by the Guarantor. The Guarantor's obligations under this
Preferred Securities Guarantee Agreement will rank pari passu with respect to
obligations under other guarantee agreements which it may enter into from time
to time to the extent that (i) such agreements shall be entered into in
substantially the form hereof and provide for comparable guarantees by the
Guarantor of payment on preferred securities issued by other trusts,
partnerships or other entities affiliated with the Guarantor that are financing
vehicles of the Guarantor and (ii) the debentures or other evidences of
indebtedness of the Guarantor relating to such preferred securities are junior
subordinated, unsecured indebtedness of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01 Termination.
This Preferred Securities Guarantee Agreement shall terminate and be of
no further force and effect (i) upon full payment of the Redemption Price of all
Preferred Securities, (ii) upon the distribution of Debentures [, or any
securities into which such Debentures are convertible,] to Holders and holders
of Common Securities in exchange for all of the Preferred Securities and Common
Securities or (iii) upon full payment of the amounts payable in accordance with
the Declaration upon liquidation of the Issuer. Notwithstanding the foregoing,
this Preferred Securities Guarantee Agreement will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid with respect to the Preferred Securities or under this
Preferred Securities Guarantee Agreement.
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ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.01 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Holder 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 Preferred Securities
Guarantee Agreement and in a manner such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
this Preferred Securities Guarantee Agreement or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence 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 8.02 Indemnification.
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 Preferred Securities Guarantee Agreement and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Preferred Securities Guarantee
Agreement, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise of any of its powers or duties hereunder, 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.
SECTION 8.03 Survive Termination.
The provisions of Sections 8.01 and 8.02 shall survive the termination
of this Preferred Securities Guarantee Agreement or the resignation or removal
of the Preferred Securities Guarantee Trustee.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee Agreement shall bind the successors, assignees, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Preferred Securities Guarantee Trustee and the Holders then outstanding. Except
in connection with a consolidation, merger or sale involving the Guarantor that
is permitted under Article X of the Indenture, the Guarantor shall not assign
its obligations hereunder.
SECTION 9.02 Amendments.
Except with respect to any changes which do not adversely affect the
rights of Holders in any material respect (in which case no consent of Holders
will be required), this Preferred Securities Guarantee Agreement may only be
amended with the prior approval of the Guarantor, the Preferred Securities
Guarantee Trustee and the Holders of not less than a Majority in liquidation
amount of the Preferred Securities. The provisions of Section 12.02 of the
Declaration concerning meetings of Holders shall apply to the giving of such
approval.
SECTION 9.03 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, in English, duly signed by the party giving
such notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Seitel, Inc.
ββ βββββ ββββββ ββββ
βββββββ Floor, West Building
Houston, Texas 77027
Attention: Chief Financial Officer
(b) if given to the Preferred Securities Guarantee Trustee, to the
address set forth below or such other address as the Preferred Securities
Guarantee Trustee my give notice of to the Holders:
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The First National Bank of Chicago
β βββββ βββββ ββββββ, βββ βββββ
Mail Suite IL1-0126
βββββββ, ββββββββ βββββ]
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when (i)
received in person, (ii) telecopied with receipt confirmed, or (iii) mailed by
first class mail, postage prepaid, when received, 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 9.04 Genders.
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 9.05 Benefits.
This Preferred Securities Guarantee Agreement is solely for the benefit
of the Preferred Securities Guarantee Trustee and the Holders and, subject to
Section 3.01 (a), is not separately transferable from the Preferred Securities.
SECTION 9.06 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.07 Counterparts.
This Preferred Securities Guarantee Agreement may be executed in
counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
[ SECTION 9.08 Exercise of Overallotment Option.
If and to the extent that Preferred Securities arc issued by the Issuer
upon exercise of the overallotment option referred to in the first WHEREAS
clause, the Guarantor agrees to give prompt
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notice thereof to the Preferred Securities Guarantee Trustee but the failure to
give such notice shall not relieve the Guarantor of any of its obligations
hereunder.]
SECTION 9.09 Agent for Service of Process.
The Guarantor hereby designates CT Corporation System, currently
located at ββββ ββββββββ, βββ ββββ, βββ ββββ, as its authorized agent upon whom
process may be served in any action, suit or proceeding that may be instituted
in any State or Federal court sitting in the County of New York of the State of
New York pertaining to this Preferred Securities Guarantee Agreement or any
matter arising out of or related to this Preferred Securities Guarantee
Agreement, and the Guarantor will accept the jurisdiction of such court in such
action, and waive, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue or forum non
conveniens. The Guarantor may and shall (to the extent the process agent ceases
to be able to be served on the basis contemplated herein), by written notice to
the Preferred Securities Guarantee Trustee, designate such additional or
alternative agents for service of process under this Section 9.09 that (i)
maintains an office located in the Borough of Manhattan, The City of New York in
the State of New York, (ii) are either (a) counsel for the Guarantor or (b) a
corporate service company which acts as agent for service of process for other
persons in the ordinary course of its business and (iii) agrees to act as agent
for service of process in accordance with this Section 9.09. Such notice shall
identify the name of such agent for process and the address of such agent for
process in the Borough of Manhattan, The City of New York, State of New York.
Upon the request of any holder of a Preferred Security or Preferred Security
Beneficial Owner (as defined in the Declaration), the Preferred Securities
Guarantee Trustee shall deliver such information to such holder or Preferred
Security Beneficial Owner. Notwithstanding the foregoing, there shall, at all
times, be at least one agent for service of process for the Guarantor appointed
and acting in accordance with this Section 9.09. A copy of any such process
shall be sent or given to the Guarantor at the address for notices specified in
Section 9.03 hereof. The Guarantor shall maintain the designation of such
authorized agent until two years after termination of the Guarantor's obligation
under this Preferred Securities Guarantee Agreement pursuant to Section 7.01.
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THIS PREFERRED SECURITIES GUARANTEE AGREEMENT is executed as of the day
and year first above written.
SEITEL, INC.
By:
--------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Preferred Securities Guarantee Trustee
By:
--------------------------------------
Name:
Title:
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