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SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
CASCADE FINANCIAL CORPORATION
Dated as of ____________, 2000
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
Page
SECTION 1.1 Definitions and Interpretation..................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................................5
SECTION 2.2 Lists of Holders of Securities..................................5
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee.............6
SECTION 2.4 Periodic Reports................................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent................6
SECTION 2.6 Waiver of Events of Default.....................................6
SECTION 2.7 Notice of Events of Default.....................................6
SECTION 2.8 Conflicting Interests...........................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee ..7
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee..........9
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
B Capital Securities Guarantee.................................10
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility..............11
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee..............................................11
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee......................................................12
SECTION 5.2 Waiver of Notice and Demand....................................12
SECTION 5.3 Obligations Not Affected.......................................12
SECTION 5.4 Rights of Holders..............................................13
(i)
Page
SECTION 5.5 Guarantee of Payment...........................................14
SECTION 5.6 Subrogation....................................................14
SECTION 5.7 Independent Obligations........................................14
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.....................................14
SECTION 6.2 Ranking........................................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination....................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation....................................................16
SECTION 8.2 Compensation and Indemnification...............................16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.........................................17
SECTION 9.2 Amendments.....................................................17
SECTION 9.3 Notices........................................................17
SECTION 9.4 Benefit........................................................18
SECTION 9.5 Governing Law..................................................19
(ii)
CROSS REFERENCE TABLE
Section of Trust
Indenture Act of Section of Guarantee
1939, as amended Agreement
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310(a) ......................................... 4.1(a)
310(b) ......................................... 2.8, 4.1(c)
310(c) ......................................... N/A
311(a) ......................................... 2.2(b)
311(b) ......................................... 2.2(b)
311 (c) ......................................... N/A
312(a) ......................................... 2.2(a)
312(b) ......................................... 2.2(b)
312(c) ......................................... N/A
313 ......................................... 2.3
314(a) ......................................... 2.4
314(b) ......................................... N/A
314(c) ......................................... 2.5
314(d) ......................................... N/A
314(e) ......................................... 1.1, 2.5, 3.2
314(f) ......................................... 2.1, 3.2
315(a) ......................................... 3.1(d), 3.2(a)
315(b) ......................................... 2.7
315(c) ......................................... 3.1(c)
315(d) ......................................... 3.1(d), 3.2(a), 8.1
315(e) ......................................... N/A
316(a) ......................................... 1.1, 2.6, 5.4
316(b) ......................................... 5.3, 5.4
316(c) ......................................... 9.2
317(a) ......................................... N/A
317(b) ......................................... N/A
318(a) ......................................... 2.1(a)
318(b) ......................................... 2.1(b)
318(c) ......................................... 2.1(b)
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* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
(iii)
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT (the "Series B
Capital Securities Guarantee"), dated as of , 2000, is executed and delivered by
CASCADE FINANCIAL CORPORATION, a Delaware corporation (the "Guarantor"), and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (the
"Capital Securities Guarantee Trustee" or "Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Series B Capital Securities
(as defined herein) of CASCADE CAPITAL TRUST I, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of March 1, 2000, by and among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
(i) issued on March 1, 2000 10,000 capital securities, having an aggregate
liquidation amount of $10,000,000, such capital securities being designated the
11.00% Capital Securities, Series A (collectively the "Series A Capital
Securities") and (ii) in connection with an Exchange Offer (as defined in the
Declaration), hereby executes and delivers this Series B Capital Securities
Guarantee (as defined in the Declaration) for the benefit of Holders of the
Series B Capital Securities (as defined in the Declaration).
WHEREAS, the Series A Capital Securities issued by the Issuer and
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), were used to purchase the 11.00% Junior
Subordinated Deferrable Interest Debentures due March 1, 2030 (the "Series A
Junior Subordinated Debentures") of the Guarantor which were deposited with the
Property Trustee under the Declaration.
WHEREAS, as incentive for the Holders to purchase the Series A Capital
Securities, the Guarantor irrevocably and unconditionally agreed, to the extent
set forth in the Series A Capital Securities Guarantee dated as of March 1,
2000, to pay the Guarantee Payments (as defined herein) to the Holders of the
Series A Capital Securities, and the Guarantor agrees to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, in connection with the offer of the Series A Capital
Securities, the Guarantor, the Issuer and Sandler O'Neill & Partners, L.P., as
representative of the initial purchasers named in Schedule A of the Purchase
Agreement, executed the Registration Rights Agreement dated February 25, 2000
(the "Registration Rights Agreement").
WHEREAS, the Issuer, in order to satisfy its obligations under the
Registration Rights Agreement, intends to offer up to $10,000,000 aggregate
Liquidation Amount of its 11.00% Capital Securities, Series B, which have been
registered under the Securities Act of 1933, as amended, pursuant to a
registration statement in exchange for a like Liquidation Amount of Series A
Capital Securities.
WHEREAS, pursuant to the Exchange Offer, the Guarantor is also
exchanging up to $10,000,000 aggregate principal amount of the Series A Junior
Subordinated Debentures for up to $10,000,000 aggregate principal amount of the
Series B Junior Subordinated Debentures due March 1, 2030 of the Guarantor.
WHEREAS, pursuant to the Exchange Offer, the Guarantor is required to
execute this Series B Capital Securities Guarantee and exchange the Series A
Capital Securities Guarantee for this Series B Capital Securities Guarantee
Agreement.
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WHEREAS, the Guarantor also executed and delivered the Common
Securities Guarantee Agreement, dated as of March 1, 2000 (the "Common
Securities Guarantee"), for the benefit of the holders of the Common Securities
(as defined herein), the terms of which provide 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 are subordinated, to the extent and in the manner set forth
in the Common Securities Guarantee, to the rights of Holders of the Series A
Capital Securities and the Series B Capital Securities to receive Guarantee
Payments under the Series A Capital Securities Guarantee and this Series B
Capital Securities Guarantee, as the case may be.
NOW, THEREFORE, in consideration of the exchange by each Holder of the
Series A Capital Securities for the Series B Capital Securities, which exchange
the Guarantor hereby acknowledges shall benefit the Guarantor, (or in the event
certain Holders do not exchange their Series A Capital Securities, in order to
fulfill its obligations to such Holders under the Series A Capital Securities
Guarantee) and intending to be legally bound hereby, the Guarantor executes and
delivers this Series B Capital Securities Guarantee for the benefit of the
Holders from time to time of the Trust Securities (as defined herein).
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Series B Capital Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series B Capital Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Declaration as in effect at the date of
execution of this Series B Capital Securities Guarantee have the same meaning
when used in this Series B Capital Securities Guarantee unless otherwise defined
in this Series B Capital Securities Guarantee,
(c) a term defined anywhere in this Series B Capital Securities
Guarantee has the same meaning throughout;
(d) all references to "the Series B Capital Securities Guarantee" or
"this Series B Capital Securities Guarantee" are references to this Series B
Capital Securities Guarantee as modified, supplemented or amended from time to
time;
(e) all references in this Series B Capital Securities Guarantee to
Articles and Sections are references to Articles and Sections of this Series B
Capital Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Series B Capital Securities Guarantee, unless otherwise defined in
this Series B Capital Securities Guarantee or unless the context otherwise
requires; and
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(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Wilmington, Delaware or
Everett, Washington are authorized or required by law or executive order to
remain closed.
"Capital Securities Guarantee Trustee" shall mean Wilmington Trust
Company, as Trustee under the Series B Capital Securities Guarantee, until a
Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Series B Capital
Securities Guarantee and thereafter means each such Successor Capital Securities
Guarantee Trustee.
"Common Securities" shall mean the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" shall mean the office of the Capital
Securities Guarantee Trustee at which the corporate trust business of the
Capital Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
"Covered Person" shall mean any Holder or beneficial owner of Series B
Capital Securities.
"Debentures" shall mean the series of subordinated debt securities of
the Guarantor designated the 11.00% Junior Subordinated Deferrable Interest
Debentures due March 1, 2030, Series B, held by the Property Trustee (as defined
in the Declaration) of the Issuer.
"Event of Default" shall mean a default by the Guarantor on any of its
payment or other obligations under this Series B Capital Securities Guarantee;
provided, however, that, except with respect to default in respect of any
Guarantee Payment, no default by the Guarantor hereunder shall constitute an
Event of Default unless the Guarantor shall have received written notice of the
default and shall not have cured such default within 60 days after receipt
thereof.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Series B Capital
Securities, to the extent not paid or made by or on behalf of the Issuer: (i)
any accumulated and unpaid Distributions (as defined in the Declaration) that
are required to be paid on such Series B Capital Securities, to the extent the
Issuer has funds legally available therefor at such time, (ii) the redemption
price, including all accumulated and unpaid Distributions to the date of
redemption (the "Redemption Price"), to the extent the Issuer has funds legally
available therefor at such time, with respect to any Series B Capital Securities
called for redemption, and (iii) upon a voluntary or involuntary dissolution,
winding up or liquidation of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Series B Capital
Securities or in connection with the redemption of the Series B Capital
Securities, in each case as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Series B Capital Securities to the date of
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payment, to the extent the Issuer has funds legally available therefor at such
time, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders after satisfaction of liabilities to creditors of the
Issuer as required by applicable law (in either case, the "Liquidation
Distribution"). If an Event of Default has occurred and is continuing, no
Guarantee Payments under the Common Securities Guarantee with respect to the
Common Securities or any guarantee payment under the Common Securities Guarantee
or any Other Common Securities Guarantee shall be made until the Holders of the
Series B Capital Securities shall be paid in full the Guarantee Payments to
which they are entitled under this Series B Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Series B Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Series B Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Person actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee to be an Affiliate of the
Guarantor.
"Indemnified Person" shall mean the Capital Securities Guarantee
Trustee (including in its individual capacity), any Affiliate of the Capital
Securities Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Capital Securities Guarantee Trustee.
"Indenture" shall mean the Indenture, dated as of March 1, 2000,
between Cascade Financial Corporation, as issuer of Debentures (the "Debenture
Issuer"), and Wilmington Trust Company, as trustee, pursuant to which the
Debentures are to be issued to the Property Trustee of the Issuer.
"Majority in Liquidation Amount of the Series B Capital Securities"
shall mean, except as provided by the Trust Indenture Act, a vote by Holder(s)
of the Series B Capital Securities, voting separately as a class, of more than
50% of the aggregate liquidation amount (including the amount that would be paid
on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Series B Capital Securities, excluding Series B Capital
Securities held by the Guarantor, the Issuer or any Affiliate thereof.
"Officers' Certificate" shall mean, with respect to any Person, a
certificate signed by the Chairman, the Chief Executive Officer, the President,
an Executive or Senior Vice President, a Vice President, the Chief Financial
Officer and the Secretary or an Assistant Secretary. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series B Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenants or conditions and the definitions relating thereto;
(b) 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
(c) a statement as to whether or not, in the opinion of each such
officer, such condition or covenant has been complied with.
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"Other Common Securities Guarantees" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" shall mean all junior subordinated debentures, other
than the Series A Junior Subordinated Debentures and the Debentures, issued by
the Guarantor, from time to time and sold to trusts other than the Issuer to be
established by the Guarantor (if any), in each case similar to the Issuer.
"Other Guarantees" shall mean all guarantees, other than this Series B
Capital Securities Guarantee and the Series A Capital Securities Guarantee, to
be issued by the Guarantor with respect to capital securities (if any) similar
to the Series B Capital Securities, issued by trusts other than the Issuer to be
established by the Guarantor (if any), in each case similar to the Issuer.
"Person" shall mean 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.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of February 25, 2000, by and among the Guarantor, the Issuer
and the Initial Purchaser named therein, as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer" shall mean, with respect to a Person, any officer
with direct responsibility for the administration of any matters relating to
this Series B Capital Securities Guarantee.
"Successor Capital Securities Guarantee Trustee" shall mean a successor
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"Trust Securities" shall mean the Common Securities and the Series A
Capital Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Series B Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series B Capital Securities Guarantee and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Series B Capital
Securities 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. If any provision of this Series B Capital Securities
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Guarantee modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the modified or excluded provision of the Trust
Indenture Act shall be deemed to apply to this Series B Capital Securities
Guarantee as so modified or excluded, as the case may be.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Series B Capital Securities) with a list, in such form as the
Capital Securities Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Series B Capital Securities ("List of Holders")
as of such date, (i) within 14 days after each record date for payment of
Distributions (as defined in the Declaration), 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
Capital Securities Guarantee Trustee; provided, however, 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
Capital Securities Guarantee Trustee by the Guarantor. The Capital Securities
Guarantee Trustee may destroy any List of Holders previously given to it upon
receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 31l(a), 31l(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
Within 60 days after the date hereof, and no later than the anniversary
date hereof in each succeeding year, the Capital Securities Guarantee Trustee
shall provide to the Holders of the Series B Capital Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Capital
Securities Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports
The Guarantor shall provide to the Capital Securities Guarantee Trustee
such documents, reports and information as are 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. Delivery of such reports, information and documents to the
Capital Securities Guarantee Trustee is for informational purposes only and the
Capital Securities Guarantee Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder (as to which the Capital Securities Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities Guarantee Trustee
such evidence of compliance with the conditions precedent, if any, provided for
in this Series B Capital Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any
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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 Waiver of Events of Default
The Holders of a Majority in Liquidation Amount of the Series B Capital
Securities may, by vote, on behalf of the Holders of all of the Series B Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Series B Capital Securities 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 Notice of Events of Default
(a) The Capital Securities Guarantee Trustee shall, within 10 Business
Days after the occurrence of an Event of Default with respect to this Series B
Capital Securities Guarantee actually known to a Responsible Officer of the
Capital Securities Guarantee Trustee, transmit by mail, first class postage
prepaid, to all Holders of the Series B Capital Securities, notices of all such
Events of Default, unless such Events of Default have been cured before the
giving of such notice; provided, however, that, except in the case of an Event
of Default arising from the non-payment of any Guarantee Payment, the Capital
Securities Guarantee Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Capital Securities Guarantee Trustee
in good faith determines that the withholding of such notice is in the interests
of the Holders of the Series B Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Capital Securities Guarantee
Trustee shall have received written notice, or a Responsible Officer of the
Capital Securities Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Series B Capital Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee
Trustee
(a) This Series B Capital Securities Guarantee shall be held by the
Capital Securities Guarantee Trustee for the benefit of the Holders of the
Series B Capital Securities, and the Capital Securities Guarantee Trustee shall
not transfer this Series B Capital Securities Guarantee to any Person except a
Holder of the Series B Capital Securities exercising his or her rights pursuant
to Section 5.4(b) or to a Successor Capital Securities Guarantee Trustee on
acceptance by such Successor Capital Securities Guarantee Trustee of its
appointment to act as Successor Capital Securities Guarantee Trustee. The right,
title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee Trustee, and
such vesting and
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succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Capital Securities Guarantee Trustee has occurred and is continuing, the
Capital Securities Guarantee Trustee shall enforce this Series B Capital
Securities Guarantee for the benefit of the Holders of the Series B Capital
Securities.
(c) The Capital Securities Guarantee Trustee, before the occurrence of
any Event of Default (of which, other than a default in respect of any Guarantee
Payment, a Responsible Officer of the Property Trustee has actual knowledge) and
after the curing of all such Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Series B Capital Securities Guarantee, and no implied covenants or obligations
shall be read into this Series B Capital Securities Guarantee against the
Capital Securities 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 Capital Securities Guarantee Trustee, the
Capital Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Series B Capital Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Series B Capital Securities Guarantee shall be
construed to relieve the Capital 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 any Event of Default (of which,
other than a default in respect of any Guarantee Payment, a Responsible
Officer of the Property Trustee has actual knowledge) and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Securities
Guarantee Trustee shall be determined solely by the express provisions
of this Series B Capital Securities Guarantee, and the Capital
Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Series B Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Series B Capital
Securities Guarantee against the Capital Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital 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 Capital Securities Guarantee Trustee and
conforming to the requirements of this Series B Capital Securities
Guarantee; provided, however, that in the case of any such certificates
or opinions that by any provision hereof are specifically required to
be furnished to the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee shall be under a duty to examine the same
to determine whether or not on their face they conform to the
requirements of this Series B Capital Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be
liable for any errors of judgment made in good faith by a Responsible
Officer of the Capital Securities Guarantee Trustee, unless it shall be
proved that the Capital Securities Guarantee Trustee or such
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Responsible Officer was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Capital Securities Guarantee Trustee shall not be
liable with respect to any actions 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 Series B Capital Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Capital Securities Guarantee Trustee, or
exercising any trust or power conferred upon the Capital Securities
Guarantee Trustee under this Series B Capital Securities Guarantee; and
(iv) no provision of this Series B Capital Securities
Guarantee shall require the Capital 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 the Capital Securities 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 Series B Capital Securities Guarantee or indemnity,
reasonably satisfactory to the Capital Securities Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Capital Securities 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 Series B Capital Securities Guarantee may be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this Series B Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities
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 Capital Securities Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any instrument
or other document (or any rerecording, refiling or registration
thereof);
(v) the Capital Securities Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion of such counsel
with respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion; such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees; and the Capital
Securities Guarantee Trustee shall have the right at any time to
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seek instructions concerning the administration of this Series B
Capital Securities Guarantee from any court of competent jurisdiction;
(vi) the Capital Securities Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by
this Series B Capital Securities Guarantee at the request or direction
of any Holder, unless such Holder shall have provided to the Capital
Securities Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Capital Securities Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Capital Securities Guarantee Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Capital Securities Guarantee
Trustee, provided, however, that nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Capital Securities Guarantee
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Series B Capital
Securities Guarantee;
(vii) the Capital Securities Guarantee Trustee shall have no
obligation 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
Capital Securities Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit;
(viii) the Capital Securities 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 Capital Securities Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such
person appointed with due care by it hereunder;
(ix) any action taken by the Capital Securities Guarantee
Trustee or its agents hereunder shall bind the Holders of the Series B
Capital Securities, and the signature of the Capital 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 Capital Securities Guarantee Trustee
to so act or as to its compliance with any of the terms and provisions
of this Series B Capital Securities Guarantee, both of which shall be
conclusively evidenced by the Capital Securities Guarantee Trustee's or
its agent's taking such action;
(x) whenever in the administration of this Series B Capital
Securities Guarantee the Capital Securities Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Capital
Securities Guarantee Trustee (i) may request instructions from the
Holders of a Majority in Liquidation Amount of the Series B Capital
Securities, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in
accordance with such instructions; and
(xi) the Capital Securities Guarantee Trustee shall not be
liable for any action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Series B Capital Securities Guarantee.
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(b) No provision of this Series B Capital Securities Guarantee shall be
deemed to impose any duty or obligation on the Capital Securities 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 Capital Securities 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 Capital Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
B Capital Securities Guarantee
The recitals contained in this Series B Capital Securities Guarantee
shall be taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Capital Securities Guarantee Trustee makes no representation as to the validity
or sufficiency of this Series B Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities Guarantee Trustee
that shall
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation or other Person organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia, or a corporation or
other Person permitted by the Securities and Exchange Commission to act
as an indenture trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000), and
subject to supervision or examination by federal, state, territorial or
District of Columbia authority; it being understood that if such
corporation or other Person 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) and to the extent permitted by the Trust Indenture
Act, 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 Capital Securities Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Capital Securities Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
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SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Capital Securities Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor except
during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Capital Securities Guarantee Trustee and
delivered to the Guarantor.
(c) The Capital Securities Guarantee Trustee shall hold office until a
Successor Capital Securities Guarantee Trustee shall have been appointed,
subject to Section 4.1, or until its removal or resignation. The Capital
Securities Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Capital
Securities Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Capital Securities Guarantee Trustee has
been appointed, subject to Section 4.1, and has accepted such appointment by
instrument in writing executed by such Successor Capital Securities Guarantee
Trustee and delivered to the Guarantor and the resigning Capital Securities
Guarantee Trustee.
(d) If no Successor Capital Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the Capital
Securities Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Capital Securities
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Capital Securities Guarantee
Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee Trustee.
(f) Upon termination of this Series B Capital Securities Guarantee or
removal or resignation of the Capital Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all amounts due to the Capital Securities Guarantee Trustee 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
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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 Series B
Capital Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the 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 Series B Capital Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Series B Capital 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 or any
other sums payable under the terms of the Series B Capital Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Series B Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Series B Capital
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 Series B Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred;
(g) the consummation of the Exchange Offer; or
(h) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 5.3 that the obligations of the Guarantor
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 Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of the Series B
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Capital Securities
Guarantee Trustee in respect of this Series B Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Series B Capital Securities Guarantee.
(b) If the Capital Securities Guarantee Trustee fails to enforce this
Series B Capital Securities Guarantee, any Holder of the Series B Capital
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Capital Securities Guarantee Trustee's rights under this Series B
Capital Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Capital Securities Guarantee Trustee or any other person
or entity. The Guarantor waives any right or remedy to require that any action
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 Series B Capital Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Series B Capital Securities against the Issuer in respect of any amounts paid
to such Holders by the Guarantor under this Series B Capital Securities
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Series B
Capital Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Series B Capital Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Series B
Capital Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this Series
B Capital Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding, the Guarantor
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Guarantor's capital stock, (ii) make any payment of principal of, or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor (including Other Debentures) that rank pari passu with or junior in
right of payment to the Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Guarantor of the debt securities of any
subsidiary of the Guarantor (including Other Guarantees) if such guarantee ranks
pari passu with or junior in right of payment to the Debentures (other than (a)
dividends or distributions in shares of, or options, warrants, rights to
subscribe for or purchase shares of, common stock of the Guarantor, (b) any
declaration of a dividend in connection with the implementation of a
shareholders' 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, (c)
payments under this Series B Capital Securities Guarantee and the Series A
Capital Securities Guarantee, (d) as a result of a reclassification 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, (e) 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, and (f)
purchases of common stock related to the issuance of common stock or rights
under any of the Guarantor's benefit or compensation plans for its directors,
officers or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (l) there shall have occurred any event of which the Guarantor has
actual knowledge that (A) is a Default or Event of Default (each as defined in
the Indenture) and (B) in respect of which the Guarantor shall not have taken
reasonable steps to cure, (2) if the Debentures are held by the Property
Trustee, the Guarantor shall be in default with respect to its payment of any
obligations under this Series B Capital Securities Guarantee or (3) the
Guarantor shall have given notice of its election of the exercise of its right
to commence an Extended Interest Payment Period as provided in the Indenture and
shall not have rescinded such notice, and such Extended Interest Payment Period,
or an extension thereof, shall have commenced and be continuing.
SECTION 6.2 Ranking
This Series B Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all Allocable Amounts (as defined in the Indenture) in respect of
Senior Indebtedness (as defined in the Indenture), to the same extent and in the
same manner that the Debentures are subordinated to Senior Indebtedness pursuant
to the Indenture, it being understood that the terms of Article XV of the
Indenture shall apply to the obligations of the Guarantor under this Series B
Capital Securities Guarantee as if such Article XV were set forth herein in
full, (ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with the Series A Capital Securities
Guarantee, any Other Guarantee and, except to the extent set forth therein, the
Common Securities Guarantee, any Other Common Securities Guarantee, and any
guarantee now or hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor, and (iii)
senior to the Guarantor's common stock.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Series B Capital Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Redemption Price of all
Series B Capital Securities, (ii) dissolution, winding up or liquidation of the
Issuer, immediately following the full payment of the amounts payable in
accordance with the Declaration or (iii) the distribution of all of the
Debentures to the Holders of the Trust Securities. Notwithstanding the
foregoing, this Series B Capital Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of the Series B Capital Securities must restore payment of any sums paid under
the Series B Capital Securities or under this Series B Capital Securities
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 Series B
Capital Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Series B Capital Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Series B Capital Securities might properly be
paid.
SECTION 8.2 Compensation and Indemnification
The Guarantor agrees to pay to the Capital Securities Guarantee Trustee
such compensation for its services as shall be mutually agreed upon by the
Guarantor and the Capital Securities Guarantee Trustee. The Guarantor shall
reimburse the Capital Securities Guarantee Trustee upon request for all
reasonable out-of-pocket expenses incurred by it, including the reasonable
compensation and expenses of the Capital Securities Guarantee Trustee's agents
and counsel, except any expense as may be attributable to the negligence or bad
faith of the Capital Securities Guarantee Trustee.
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The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, action, suit, claim or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The provisions
of this Section 8.2 shall survive the termination of this Series B Capital
Securities Guarantee and shall survive the resignation or removal of the Capital
Securities Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Series B Capital
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Series B Capital Securities then outstanding. Except in connection with
any merger or consolidation of the Guarantor with or into another entity
permitted by Section 10.01 of the Indenture or any sale, transfer, conveyance or
other disposition of the property of the Guarantor permitted by Section 10.01 of
the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Capital Securities Guarantee.
SECTION 9.2 Amendments
Except with respect to any changes that do not materially adversely
affect the rights of Holders of the Series B Capital Securities (in which case
no consent of such Holders will be required), this Series B Capital Securities
Guarantee may only be amended with the prior approval of the Holders of a
Majority in Liquidation Amount of the Series B Capital Securities. The
provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Trust Securities apply to the giving of such approval. This
Series B Capital Securities Guarantee may not be amended, and no amendment
hereof that affects the Capital Securities Guarantee Trustee's rights, duties or
immunities hereunder or otherwise, shall be effective, unless such amendment is
executed by the Capital Securities Guarantee Trustee (which shall have no
obligation to execute any such amendment, but may do so in its sole discretion).
SECTION 9.3 Notices
All notices provided for in this Series B Capital Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administrative Trustee at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Capital Securities Guarantee Trustee and the
Holders of the Series B Capital Securities):
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CASCADE CAPITAL TRUST I
c/o Cascade Financial Corporation
2828 Colby Avenue
Everett, Washington 98201-3537
Attention: Chief Financial Officer
Telephone: (425) 258-5500
Telecopier: (425) 258-0624
(b) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or such
other address as the Capital Securities Guarantee Trustee may give notice of to
the Holders of the Series B Capital Securities):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
(c) 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
Capital Securities Guarantee Trustee and the Holders of the Series B Capital
Securities):
CASCADE FINANCIAL CORPORATION
2828 Colby Avenue
Everett, Washington 98201-3537
Attention: Chief Financial Officer
Telephone: (425) 258-5500
Telecopier: (425) 258-0624
(d) If given to any Holder of the Series B Capital Securities, 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 Series B Capital Securities Guarantee is solely for the benefit of
the Holders of the Series B Capital Securities and, subject to Section 3.1(a),
is not separately transferable from the Series B Capital Securities.
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SECTION 9.5 Governing Law
THIS SERIES B CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
This Series B Capital Securities Guarantee is executed as of the day
and year first above written.
CASCADE FINANCIAL CORPORATION,
as Guarantor
By:
Frank M. McCord
Chairman and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Capital Securities Guarantee Trustee
By:
Name:
Title:
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