Exhibit 10.61
EXECUTION
COPY
PARENT GUARANTEE
AGREEMENT
between
NOVASTAR FINANCIAL,
INC.,
as Parent
Guarantor,
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY,
NATIONAL
ASSOCIATION,
as Guarantee
Trustee
Dated as of February 18,
2009
NOVASTAR MORTGAGE,
INC.
TABLE OF CONTENTS
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Page
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ARTICLE I
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Interpretation
and Definitions
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1
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SECTION 1.1. Interpretation.
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1
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SECTION 1.2. Definitions.
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2
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ARTICLE II
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Reports
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5
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SECTION 2.1. List of Holders.
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5
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SECTION 2.2. Periodic Reports to the Guarantee
Trustee.
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5
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SECTION 2.3. Event of Default;
Waiver.
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5
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SECTION 2.4. Event of Default;
Notice.
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5
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ARTICLE III
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Powers, Duties
and Rights of the Guarantee Trustee
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6
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SECTION 3.1. Powers and Duties of the Guarantee
Trustee.
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6
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SECTION 3.2. Certain Rights of the Guarantee
Trustee.
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7
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SECTION 3.3. Compensation.
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8
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SECTION 3.4. Indemnity.
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8
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SECTION 3.5. Securities.
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9
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ARTICLE IV
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Guarantee
Trustee
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9
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SECTION 4.1. Guarantee Trustee;
Eligibility.
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9
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SECTION 4.2. Appointment, Removal and
Resignation of the Guarantee Trustee.
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10
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SECTION 4.3. Merger, Conversion, Consolidation
or Succession to Business.
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10
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ARTICLE V
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Parent
Guarantee
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10
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SECTION 5.1. Parent Guarantee.
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10
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SECTION 5.2. Waiver of Notice and
Demand.
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11
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SECTION 5.3. Obligations Not
Affected.
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11
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SECTION 5.4. Rights of Holders, the Note Holders
and the Trust.
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12
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SECTION 5.5. Guarantee of Payment.
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12
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SECTION 5.6. Subrogation.
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12
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i
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SECTION 5.7. Independent Obligations.
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13
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SECTION 5.8. Enforcement.
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13
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ARTICLE VI
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Subordination
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13
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SECTION 6.1. Subordination.
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13
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SECTION 6.2. Pari Passu Guarantees.
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13
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ARTICLE VII
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Termination
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13
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SECTION 7.1. Termination.
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13
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ARTICLE VIII
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Miscellaneous
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14
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SECTION 8.1. Successors and Assigns.
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14
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SECTION 8.2. Amendments.
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14
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SECTION 8.3. Notices.
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14
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SECTION 8.4. Benefit.
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16
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SECTION 8.5. Governing Law.
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16
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SECTION 8.6. Submission to
Jurisdiction.
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16
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SECTION 8.7. Counterparts.
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16
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SECTION 8.8. The Indenture.
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16
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ARTICLE IX
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Consolidation,
Merger, Conveyance, Transfer or Lease and Ownership of the
Company
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17
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SECTION 9.1. Parent Guarantor May Consolidate,
etc., Only on Certain Terms.
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17
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SECTION 9.2. Dividends, Distributions and
Payments.
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17
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SECTION 9.3. Successor Company
Substituted.
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18
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SECTION 9.4. Ownership of the
Company.
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18
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ARTICLE X
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Representations
and Warranties
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18
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SECTION 10.1. Representations and Warranties of
Parent Guarantor.
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18
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ii
This P ARENT G UARANTEE A GREEMENT ,
dated as of February 18, 2009, executed and delivered by
N OVA S TAR F INANCIAL ,
I NC ., a Maryland corporation (the “ Parent
Guarantor ”) having its principal office at 2114 Central
Street, Suite 600, Kansas City, Missouri 64108, and THE BANK OF NEW
YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, a national banking
association, as trustee (in such capacity, the “ Guarantee
Trustee ”), for the benefit of the Trust (as defined
herein), the Holders (as defined herein) and the Note Holders (as
defined herein) from time to time of the Notes (as defined herein)
of NovaStar Mortgage, Inc., a Virginia corporation (the “
Company ”).
W ITNESSETH :
W HEREAS ,
pursuant to an Indenture, dated as of the date hereof (the “
Indenture ”), among the Company, the Parent Guarantor
and The Bank of New York Mellon Trust Company, National
Association, as trustee, the Company is issuing Twenty-Eight
Million Nine Hundred Ninety-Five Thousand Dollars ($28,995,000)
aggregate principal amount of its junior subordinated notes (the
“ Notes ”) having the terms set forth in the
Indenture to N OVA
S TAR C APITAL T RUST II/B,
a Delaware statutory trust (the “ Trust ”),
evidencing indebtedness of the Company to the Trust in connection
with the issuance of undivided preferred beneficial interests in
the assets of the Trust (the “ Preferred Securities
”), and undivided common beneficial interests in the assets
of the Trust (collectively, together with the Preferred Securities,
the “ Trust Securities ”) and the exchange of
the Preferred Securities for certain undivided preferred beneficial
interests in the assets of NovaStar Capital Trust II (the “
Exchange ”);
W HEREAS ,
the Parent Guarantor owns one hundred percent (100%) of the
outstanding capital stock of the Company, and will substantially
benefit from the Exchange; and
W HEREAS , as
incentive for the Holders (as defined herein) to consummate the
Exchange, the Parent Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay to
the Note Holders (as defined herein) the Parent Guarantee Payments
(as defined herein) and to make certain other payments on the terms
and conditions set forth herein.
Now, T HEREFORE ,
in consideration of the exchange by each Holder of all of the
undivided preferred beneficial interests in the assets of NovaStar
Capital Trust II for the Preferred Securities, the Parent Guarantor
executes and delivers this Parent Guarantee Agreement to provide as
follows for the benefit of the Holders and the Note Holders (as
defined herein):
ARTICLE I
I NTERPRETATION AND D EFINITIONS
SECTION 1.1.
Interpretation.
In this Parent Guarantee Agreement,
unless the context otherwise requires:
(a) capitalized terms used in this
Parent Guarantee Agreement but not defined in the preamble hereto
have the respective meanings assigned to them in
Section 1.2 ;
(b) the words “include”,
“includes” and “including” shall be deemed
to be followed by the phrase “without
limitation”;
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(c) all references to “the
Parent Guarantee Agreement” or “this Parent Guarantee
Agreement” are to this Parent Guarantee Agreement, as
modified, supplemented or amended from time to time;
(d) all references in this Parent
Guarantee Agreement to articles and sections are to articles and
sections of this Parent Guarantee Agreement unless otherwise
specified;
(e) the words “hereby”,
“herein”, “hereof” and
“hereunder” and other words of similar import refer to
this Parent Guarantee Agreement as a whole and not to any
particular Article, Section or other subdivision;
(f) a reference to the singular
includes the plural and vice versa;
(g) the masculine, feminine or
neuter genders used herein shall include the masculine, feminine
and neuter genders.
SECTION 1.2.
Definitions.
As used in this Parent Guarantee
Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings:
“ 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 the purposes of this
definition, “ control ” when used with respect
to any specified Person means 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 ” have meanings correlative to the
foregoing.
“ Beneficiaries ”
means the Guarantee Trustee, the Delaware Trustee, the Property
Trustee, the Administrative Trustees and any successors
thereof.
“ Board of Directors
” means either the board of directors of the Parent Guarantor
or any duly authorized committee of that board.
“ Common Securities
” means the securities representing common undivided
beneficial interests in the assets of the Trust.
“ Debt ” means
with respect to any Person, whether recourse is to all or a portion
of the assets of such Person, whether currently existing or
hereafter incurred, and whether or not contingent and without
duplication, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of
property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the
account of such Person; (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable arising in the
ordinary course of business); (v) every capital lease
obligation of such Person; (vi) all indebtedness of such
Person, whether incurred on or prior to the date of this Parent
Guarantee Agreement or thereafter incurred, for claims in respect
of derivative products, including interest rate, foreign exchange
rate and commodity forward contracts, options, swaps and similar
arrangements; (vii) every obligation of the type referred to
in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case,
such Person has guaranteed or
2
is responsible or liable for,
directly or indirectly, as obligor or otherwise; and
(viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses
(i) through (vii).
“ Event of Default
” means a default by the Parent Guarantor on any of its
payment or other obligations under this Parent Guarantee Agreement;
provided , that except with respect to a default in payment
of any Parent Guarantee Payments, such default shall not be an
Event of Default unless the Parent Guarantor shall have received
notice of such default in accordance with the terms herein from the
Guarantee Trustee, the Trust or any Holder and shall have failed to
cure such default within thirty (30) days after receipt of
such notice.
“ Guarantee Trustee
” means The Bank of New York Mellon Trust Company, National
Association, until a Successor Guarantee Trustee, as defined below,
has been appointed and has accepted such appointment pursuant to
the terms of this Parent Guarantee Agreement, and thereafter means
each such Successor Guarantee Trustee, in any case solely in its
capacity as guarantee trustee and not in its individual
capacity.
“ Holder ” means
any holder, as registered on the books and records of the Trust, of
any Preferred Securities; provided , 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 Parent
Guarantor, the Guarantee Trustee or any Affiliate of the Parent
Guarantor or the Guarantee Trustee.
“ List of Holders
” has the meaning specified in Section 2.1
.
“ Majority in Liquidation
Amount of the Preferred Securities ” means a vote by the
Holder(s), voting separately as a class, of more than fifty percent
(50%) of the aggregate Liquidation Amount of all then
outstanding Preferred Securities issued by the Trust.
“ Majority in Principal
Amount of the Notes ” means a vote by the Note Holder(s),
voting separately as a class, of more than fifty percent
(50%) of the aggregate principal amount of all then
outstanding Notes.
“ Note Holder ”
means any holder, as registered on the books and records of the
Trustee (as defined in the Indenture), of any Notes;
provided , that, in determining whether the holders of the
requisite percentage of Notes have given any request, notice,
consent or waiver hereunder, “Note Holder” shall not
include either the Parent Guarantor, the Company, the Guarantee
Trustee or any Affiliate of either of the Parent Guarantor or the
Guarantee Trustee unless all of the Notes are held by such
Persons.
“ Officers’
Certificate ” means, with respect to any Person, a
certificate signed by the Chief Executive Officer, President or a
Vice President of such Person, and by the Chief Financial Officer,
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee Trustee.
Any Officers’ Certificate delivered with respect to
compliance with a condition or covenant provided for in this Parent
Guarantee Agreement (other than the certificate provided pursuant
to Section 2.2 ) shall include:
(a) a statement that each officer
signing the Officers’ Certificate has read the covenant or
condition and the definitions relating thereto;
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(b) a brief statement of the nature
and scope of the examination or investigation undertaken by each
officer in rendering the Officers’ Certificate;
(c) a statement that each officer
has made such examination or investigation as, in such
officer’s opinion, is necessary to enable such officer to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in
the opinion of each officer, such condition or covenant has been
complied with.
“ Parent Guarantee
Payments ” means the following payments or distributions,
without duplication, with respect to the Notes, to the extent not
fully and promptly paid or made by the Company immediately after
the expiration of any grace or cure period applicable to the
Company under the terms of the Indenture: (a) any accrued and
unpaid payments of interest or principal, or other amounts,
required to be paid on the Notes; and (b) payment of any other
amounts to be paid by the Company under the Indenture, including
all amounts due to any Beneficiary by the Company.
“ Person ” means
a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company,
limited liability company, company, trust, unincorporated
association or government or any agency or political subdivision
thereof or any other entity of whatever nature.
“ Responsible Officer
” means, with respect to the Guarantee Trustee, the officer
in the Institutional Trust Services Department of the Trustee
having direct responsibility for the administration of this Parent
Guarantee Agreement.
“ Senior Debt ”
means the principal of and any premium, if any, and interest on
(including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Parent
Guarantor whether or not such claim for post-petition interest is
allowed in such proceeding) all Debt of the Parent Guarantor,
whether incurred on or prior to the date of the Indenture or
thereafter incurred, unless it is provided in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding, that such obligations are not superior in right of
payment to the Notes; provided, however, that Senior Debt
shall not include any other debt securities, and guarantees in
respect of such debt securities, issued to any trust other than the
Trust (or a trustee of such trust), partnership or other entity
affiliated with the Company or the Guarantor that is a financing
vehicle of the Company or the Guarantor (a “financing
entity”), in connection with the issuance by such financing
entity of equity securities or other securities that are treated as
equity capital that rank pari passu with or junior in right of
payment to the Indenture, including, without limitation, the debt
securities of the Company issued under the Indenture, dated the
date hereof, between the Company and The Bank of New York Mellon
Trust Company, National Association, as trustee, in connection with
the Other Preferred Securities.
“ Trust Indenture Act
” means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Parent Guarantee Agreement.
“ Successor Guarantee
Trustee ” means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under
Section 4.1 .
Capitalized or otherwise defined
terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture as in effect on the date
hereof.
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ARTICLE II
R EPORTS
SECTION 2.1. List of
Holders.
The Parent Guarantor shall furnish
or cause to be furnished to the Guarantee Trustee at such times as
the Guarantee Trustee may request in writing, within thirty
(30) days after the receipt by the Parent Guarantor of any
such request, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders or
Note Holders (each a “ List of Holders ”)
as of a date not more than fifteen (15) days prior to the time
such list is furnished, in each case to the extent such information
is in the possession or control of the Parent Guarantor or the
Company and is not identical to a previously supplied List of
Holders or has not otherwise been received by the Guarantee Trustee
in its capacity as such. The Guarantee Trustee may destroy any List
of Holders previously given to it on receipt of a new List of
Holders.
SECTION 2.2. Periodic Reports to
the Guarantee Trustee.
(a) The Parent Guarantor shall
deliver to the Guarantee Trustee, within ninety (90) days
after the end of each fiscal year of the Parent Guarantor ending
after the date of this Parent Guarantee Agreement, an
Officers’ Certificate covering the preceding fiscal year,
stating whether or not to the knowledge of the signers thereof the
Parent Guarantor is in default in the performance or observance of
any of the terms or provisions or any of the conditions of this
Parent Guarantee Agreement (without regard to any period of grace
or requirement of notice provided hereunder) and, if the Parent
Guarantor shall be in default thereof, specifying all such defaults
and the nature and status thereof of which they have
knowledge.
(b) The Parent Guarantor shall
furnish (i) to the Guarantee Trustee; (ii) to the
Holders, at 2107 Wilson Blvd., Suite 450, Arlington, VA 22201,
Attention: Robert Hurley, Chief Financial Officer or such other
address as designated by such Holders); and (iii) any Owner of
the Preferred Securities reasonably identified to the Company and
the Trust (which identification may be made by such Owner) a duly
completed and executed certificate substantively and substantially
in the form attached hereto as Exhibit A , including
the financial statements referenced in such Exhibit, which
certificate and financial statements shall be so furnished by the
Parent Guarantor not later than forty five (45) days after the
end of each of the first three fiscal quarters of each fiscal year
of the Parent Guarantor and not later than ninety (90) days
after the end of each fiscal year of the Parent
Guarantor.
SECTION 2.3. Event of Default;
Waiver.
Neither the Trust nor the Note
Holders shall have the right to waive any past Event of Default
without the consent of the Holders of a Majority in Liquidation
Amount of the Preferred Securities. The Holders of a Majority in
Liquidation Amount of the Preferred Securities may, on behalf of
the Holders, the Trust or the Note 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 Parent Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 2.4. Event of Default;
Notice.
(a) The Guarantee Trustee shall,
within ninety (90) days after the occurrence hereunder of a
default, transmit to the Trust, the Note Holders, the Company and
the Holders notices of all defaults actually known to the Guarantee
Trustee, unless such defaults
5
have been cured or waived before the giving of
such notice. For the purpose of this Section 2.4 , the
term “ default ” means any event that is, or
after notice or lapse of time or both would become, an Event of
Default.
(b) The Guarantee Trustee shall not
be deemed to have knowledge of any Event of Default unless the
Guarantee Trustee shall have received written notice, or a
Responsible Officer charged with the administration of this Parent
Guarantee Agreement shall have obtained written notice, of such
Event of Default from the Parent Guarantor, the Company, a Note
Holder or a Holder.
ARTICLE III
P OWERS ,
D UTIES AND R IGHTS OF THE G UARANTEE T RUSTEE
SECTION 3.1. Powers and Duties of
the Guarantee Trustee.
(a) This Parent Guarantee Agreement
shall be held by the Guarantee Trustee for the benefit of the
Holders, the Note Holders and the Trust, and the Guarantee Trustee
shall not transfer this Parent Guarantee Agreement to any Person
except a Holder or Note Holder exercising its rights pursuant to
Section 5.4(d) or to a Successor Guarantee Trustee upon
acceptance by such Successor Guarantee Trustee of its appointment
to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee shall automatically vest in any
Successor Guarantee Trustee, upon acceptance by such Successor
Guarantee Trustee of its appointment hereunder, and such vesting
and succession of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Guarantee Trustee.
(b) The rights, immunities, duties
and responsibilities of the Guarantee Trustee shall be as provided
by this Parent Guarantee Agreement and there shall be no other
duties or obligations, express or implied, of the Guarantee
Trustee. Notwithstanding the foregoing, no provisions of this
Parent Guarantee Agreement shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every
provision of this Parent Guarantee Agreement relating to the
conduct or affecting the liability of or affording protection to
the Guarantee Trustee shall be subject to the provisions of this
Section 3.1 . To the extent that, at law or in equity,
the Guarantee Trustee has duties and liabilities relating to the
Trust, the Parent Guarantor or the Note Holde