EXHIBIT 4.8
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of February 10, 1997
(as modified, amended or supplemented, this "Agreement"), between Integon
Corporation, a Delaware corporation (the "Company"), and Integon Capital I, a
Delaware business trust (the "Series A Issuer").
WHEREAS, the Series A Issuer intends to issue its Common Securities (the
"Common Securities") to and acquire the Debentures from the Company and to
issue and sell 10 3/4% Capital Securities, Series A (the "Capital Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement, dated as of February 10,
1997, among the Company, as Depositor, First Union Bank of Delaware, as
Delaware Trustee, First Union National Bank of North Carolina, as Property
Trustee, and the Administrative Trustees named therein, as the same may be
amended from time to time (the "Trust Agreement"); and
WHEREAS, the Company will own all of the Common Securities of the Series
A Issuer and will issue the Debentures; and
WHEREAS, capitalized terms used but not defined herein have the meanings
set forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Series A
Issuer hereby agree as follows:
ARTICLE I
Section 1.1. Guarantee by Company. Subject to the terms and conditions
hereof, the Company hereby irrevocably and unconditionally guarantees to each
person or entity to whom the Series A Issuer is now or hereafter becomes
indebted or liable (the "Beneficiaries") the full payment, when and as due, of
any and all Obligations (as hereinafter defined) to such Beneficiaries. As used
herein, "Obligations" means any costs, expenses or liabilities of the Series A
Issuer, other than obligations of the Series A Issuer to pay to holders of any
Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. 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 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Company under this Agreement shall
constitute unsecured obligations of the Company and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Company to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Company
hereunder. The obligations of the
Company hereunder do not constitute Senior Indebtedness (as defined in the
Indenture) of the Company.
Section 1.3. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the dissolution of the Series A Issuer;
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 Capital
Securities or any Beneficiary must restore payment of any sums paid under the
Capital Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof by the Company, as guarantor, and First Union National Bank of
North Carolina, as guarantee trustee, or under this Agreement for any reason
whatsoever. Except to the extent set forth in the preceding sentence, this
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.4. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Company 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 the Series A Issuer 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 the Series A Issuer 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, the
Series A Issuer or any of the assets of the Series A Issuer (other than
the dissolution of the Series A Issuer in accordance with the terms of
the Trust Agreement).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
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Section 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Series A Issuer or any other
person or entity before proceeding against the Company.
Section 1.7. Subrogation. The Company shall be subrogated to all rights
(if any) of any Beneficiary against the Series A Issuer in respect of any
amounts paid to the Beneficiaries by the Company under this Agreement;
provided, however, that the Company shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights 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 Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
Section 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void.
Section 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
Section 2.3. Amendment. So long as there remains any Beneficiary or any
Capital Securities are Outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the Holders of the
Capital Securities without the consent of such Beneficiary or the Holders of
the Capital Securities, as the case may be.
Section 2.4. 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) or
by registered or certified mail, addressed as follows (and if so given, shall
be deemed given when telecopied with receipt confirmed or when mailed):
Integon Corporation
500 West Fifth Street
Winston-Salem, North Carolina 27512
Facsimile No.: (910) 770-2747
Attention: General Counsel
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Integon Capital I
c/o Integon Corporation
500 West Fifth Street
Winston-Salem, North Carolina 27512
Facsimile No.: (910) 770-2747
Attention: General Counsel
With a copy to:
First Union National Bank of North Carolina
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28228-1179
Facsimile No.: (704) 383-7316
Attention: Corporate Trust Administration
Section 2.4. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, this Agreement as to Expenses and Liabilities is
executed as of the day and year first above written.
Integon Corporation
By: /s/ John B. Yorke
---------------------------
Name: John B. Yorke
Title:
Integon Capital I
By: /s/ John B. Yorke
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Name: John B. Yorke
Administrative Trustee
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