EXHIBIT 10.1
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of , 1994, between Aetna Life and
Casualty Company, a Connecticut insurance corporation ("Aetna"), and Aetna
Capital L.L.C., a Delaware limited liability company ("Capital").
WHEREAS, Capital intends to issue its common limited liability
company interests (the "Common Securities") to and receive related capital
contributions from Aetna and Aetna Capital Holdings, Inc. and to issue and
sell from time to time, in one or more series, preferred limited liability
company interests (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in a written action or
actions of the managing members of Capital providing for the issue of such
series;
WHEREAS, Aetna will directly or indirectly own all of the
Common Securities of Capital;
NOW, THEREFORE, in consideration of the purchase by each holder
of the Preferred Securities, which purchase Aetna hereby agrees shall benefit
Aetna and which purchase Aetna acknowledges will be made in reliance upon the
execution and delivery of this Agreement, Aetna and Capital hereby agree as
follows:
Section 1.01. Guarantee by Aetna. Subject to the terms and
conditions hereof, Aetna hereby irrevocably and unconditionally guarantees to
each person or entity to whom Capital is now or hereafter becomes indebted or
liable (the "Beneficiaries") (other than obligations to holders of any
Preferred Securities or any other limited liability company interests in
Capital, in such holders' capacities as holders of such Preferred Securities
or other limited liability company interests) the full payment, when and as
due, of any and all indebtedness and liabilities of Capital to such
Beneficiaries (collectively, the "Obligations"). This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the later of (i) the date
on which full payment has been made of all amounts payable to all holders of
all series of the Preferred Securities (whether upon redemption, liquidation,
exchange or otherwise) and (ii) the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities of any series or any Beneficiary must restore
payment of any sums paid under the Preferred Securities of such series, under
any Obligation, under the Payment and Guarantee Agreement dated the date
hereof and executed and delivered by Aetna or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional
and absolute.
Section 1.03. Waiver of Notice. Aetna hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Aetna hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of Aetna under this 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 extension of time for the payment by Capital of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the Obligations
or any action on the part of Capital granting indulgence or extension of any
kind; or
(c) 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, Capital or
any of the assets of Capital.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Aetna with respect to the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against Aetna and Aetna waives any right or remedy to
require that any action be brought against Capital or any other person or
entity before proceeding against Aetna.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Aetna and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Aetna Capital L.L.C.
c/o Aetna Life and Casualty Company
151 Farmington Avenue
Hartford, Connecticut 06156
Facsimile No.: (203) 275-2661
Attention: Treasurer
Aetna Life and Casualty Company
151 Farmington Avenue
Hartford, Connecticut 06156
Facsimile No.: (203) 275-2661
Attention: Treasurer
(with a copy to the attention
of the General Counsel
(203) 273-8340)
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS AGREEMENT is executed as of the day and year first above
written.
AETNA LIFE AND CASUALTY COMPANY
By ___________________________
Name:
Title:
AETNA CAPITAL L.L.C.
By Aetna Life and Casualty Company,
as Managing Member
By ____________________________
Name:
Title: