exv4w18






Exhibit 4.18




GUARANTEE AGREEMENT




ALLIANCE CAPITAL PARTNERS, LP



Dated as of July 16, 2001



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I

DEFINITIONS AND INTERPRETATION

	 
	 	 	 	 
	Section 1.1 Definitions and Interpretation
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE

	 
	 	 	 	 
	Section 2.1 Powers and Duties of the Guarantee Trustee
	 	 	4	 
	Section 2.2 Certain Rights of Guarantee Trustee
	 	 	5	 
	Section 2.3 Not Responsible for Recitals or Issuance of Guarantee
	 	 	7	 
	Section 2.4 Events of Default; Waiver
	 	 	7	 
	Section 2.5 Events of Default; Notice
	 	 	7	 
	 
	 	 	 	 
	ARTICLE III

GUARANTEE TRUSTEE

	 
	 	 	 	 
	Section 3.1 Guarantee Trustee; Eligibility
	 	 	8	 
	Section 3.2 Appointment, Removal and Resignation of Guarantee Trustee
	 	 	8	 
	 
	 	 	 	 
	ARTICLE IV

GUARANTEE

	 
	 	 	 	 
	Section 4.1 Guarantee
	 	 	9	 
	Section 4.2 Waiver of Notice and Demand
	 	 	9	 
	Section 4.3 Obligations Not Affected
	 	 	10	 
	Section 4.4 Rights of Holders
	 	 	10	 
	Section 4.5 Guarantee of Payment
	 	 	11	 
	Section 4.6 Subrogation
	 	 	11	 
	Section 4.7 Independent Obligations
	 	 	11	 
	Section 4.8 Enforcement
	 	 	11	 
	 
	 	 	 	 
	ARTICLE V

LIMITATION OF TRANSACTIONS; SUBORDINATION

	 
	 	 	 	 
	Section 5.1 Limitation of Transactions
	 	 	12	 
	Section 5.2 Ranking
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VI

TERMINATION

	 
	 	 	 	 
	Section 6.1 Termination
	 	 	13	 






(i) 









 






	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE VII

INDEMNIFICATION

	 
	 	 	 	 
	Section 7.1 Exculpation
	 	 	14	 
	Section 7.2 Indemnification
	 	 	14	 
	Section 7.3 Compensation; Reimbursement of Expenses
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VIII

MISCELLANEOUS

	 
	 	 	 	 
	Section 8.1 Successors and Assigns
	 	 	16	 
	Section 8.2 Amendments
	 	 	16	 
	Section 8.3 Notices
	 	 	16	 
	Section 8.4 Benefit
	 	 	17	 
	Section 8.5 Governing Law
	 	 	17	 
	Section 8.6 Counterparts
	 	 	17	 






(ii) 









 






GUARANTEE AGREEMENT




          This GUARANTEE AGREEMENT (the “Guarantee”), dated as of July 16, 2001, is executed and
delivered by Alliance Capital Partners, LP, a Delaware limited partnership (the “Guarantor”), and
The Bank of New York, as trustee (the “Guarantee Trustee”), for the benefit of the Holders (as
defined herein) from time to time of the Capital Securities (as defined herein) of First Alliance
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 July 16, 2001, among the trustees named therein of the Issuer, Alliance Capital Partners, LP,
as sponsor, and the Holders from time to  of undivided beneficial interests in the assets of
the Issuer, the Issuer is issuing on the date hereof securities, having an aggregate liquidation
amount of up to $15,000,000, designated the 10.25% Fixed Rate MMCapSSM (the “Capital
Securities”);




          WHEREAS, as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay
to the Holders of Capital Securities the Guarantee Payments (as defined herein) and to make certain
other payments on the terms and conditions set forth herein; and




          NOW, THEREFORE, in consideration of the purchase by each Holder of the Capital Securities,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee for the benefit of the Holders.




ARTICLE I

DEFINITIONS AND INTERPRETATION




          Section 1.1 Definitions and Interpretation




          In this Guarantee, unless the context otherwise requires:




          (a) capitalized terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;




          (b) a term defined anywhere in this Guarantee has the same meaning throughout;




          (c) all references to “the Guarantee” or “this Guarantee” are to this Guarantee as modified,
supplemented or amended from time to time;




          (d) all references in this Guarantee to Articles and Sections are to Articles and Sections of
this Guarantee, unless otherwise specified;




          (e) terms defined in the Declaration as at the date of execution of this Guarantee have the
same meanings when used in this Guarantee, unless otherwise defined in this Guarantee or unless the
context otherwise requires; and




          (f) a reference to the singular includes the plural and vice versa.





 









 








          “Beneficiaries” means any Person to whom the Issuer is or hereafter becomes indebted or
liable.




          “Corporate Trust Office” means the office of the Guarantee Trustee at which the corporate
trust business of the Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Guarantee Agreement is located at 101 Barclay Street,
Floor 21W, New York, NY 10286.




          “Covered Person” means any Holder of Capital Securities.




          “Debentures” means the junior subordinated debentures of the Guarantor, designated the 10.25%
Junior Subordinated Deferrable Interest Debentures due July 25, 2031, held by the Institutional
Trustee (as defined in the Declaration) of the Issuer.




          “Event of Default” has the meaning set forth in Section 2.4.




          “Guarantee Payments” means the following payments or distributions, without duplication, with
respect to the Capital Securities, to the extent not paid or made by the Issuer: (i) any accrued
and unpaid Distributions (as defined in the Declaration) which are required to be paid on such
Capital Securities to the extent the Issuer shall have funds available in the Property Account (as
defined in the Declaration) therefor at such time, (ii) the Redemption Price (as defined in the
Indenture) to the extent the Issuer has funds available in the Property Account therefor at such
time, with respect to any Capital Securities called for redemption by the Issuer, (iii) the Special
Redemption Price (as defined in the Indenture) to the extent the Issuer has funds available in the
Property Account therefor at such time, with respect to Capital Securities called for redemption
upon the occurrence of a Special Event (as defined in the Indenture), and (iv) upon a voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Issuer (other than in
connection with the distribution of Debentures to the Holders of the Capital Securities in exchange
therefor as provided in the Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid Distributions on the Capital Securities to the date of payment, to the
extent the Issuer shall have funds available in the Property Account therefor at such time, and (b)
the amount of assets of the Issuer remaining available for distribution to Holders in liquidation
of the Issuer after satisfaction of liabilities to creditors of the Issuer as required by
applicable law (in either case, the “Liquidation Distribution”).




          “Guarantee Trustee” means The Bank of New York, until a Successor Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this Guarantee and thereafter
means each such Successor Guarantee Trustee.




          “Holder” means any holder, as registered on the books and records of the Issuer, of any
Capital Securities; provided, however, that, in determining whether the holders of the requisite
percentage of Capital Securities have given any request, notice, consent or waiver hereunder,
“Holder” shall not include the Guarantor or any Affiliate of the Guarantor.




          “Indemnified Person” means the Guarantee Trustee, any Affiliate of the Guarantee Trustee, or
any officers, directors, shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Guarantee Trustee.






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          “Indenture” means the Indenture dated as of July 16, 2001, between the Guarantor and The Bank
of New York, not in its individual capacity but solely as trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued to the Institutional Trustee of the
Issuer.




          “Liquidation Distribution” has the meaning set forth in the definition of “Guarantee Payments”
herein.




          “Majority in liquidation amount of the Capital Securities” means Holder(s) of outstanding
Capital Securities, voting together as a class, but separately from the holders of Common
Securities, of more than 50% of the aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to,
but excluding, the date upon which the voting percentages are
determined) of all Capital Securities
then outstanding.




          “Obligations” means any costs, expenses or liabilities (but not including liabilities related
to taxes) of the Issuer, other than obligations of the Issuer to pay to holders of any Trust
Securities the amounts due such holders pursuant to the terms of the Trust Securities.




          “Officer’s Certificate” means, with respect to any Person, a certificate signed by one
Authorized Officer of such Person. Any Officer’s Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee shall include:




          (a) a statement that each officer signing the Officer’s Certificate has read the covenant or
condition and the definitions relating thereto;




          (b) a brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Officer’s Certificate;




          (c) 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




          (d) a statement as to whether, in the opinion of each such officer, such condition or covenant
has been complied with.




          “Person” means 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.




          “Responsible Officer” means, with respect to the Guarantee Trustee, any officer within the
Corporate Trust Office of the Guarantee Trustee including any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer of the general partner of Guarantee
Trustee, if the Guarantee Trustee is a partnership, or of the Guarantee Trustee, if the Guarantee
Trustee is a corporation, customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular






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corporate trust matter, any other officer to whom such matter is referred because of that officer’s
knowledge of and familiarity with the particular subject.




          “Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 3.1.




          “Trust Securities” means the Common Securities and the Capital Securities.




ARTICLE II

POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE




          Section 2.1 Powers and Duties of the Guarantee Trustee




          (a) This Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders of
the Capital Securities, and the Guarantee Trustee shall not transfer this Guarantee to any Person
except a Holder of Capital Securities exercising his or her rights pursuant to Section 4.4 (b) or
to a Successor Guarantee Trustee on 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, and such vesting and cessation
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) If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee
has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit
of the Holders of the Capital Securities.




          (c) The Guarantee Trustee, before the occurrence of any Event of Default and after curing all
Events of Default that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.4) and is actually known to a Responsible Officer of the
Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this 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 Guarantee shall be construed to relieve the 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 and after the curing or waiving of
all such Events of Default that may have occurred:





     (A) the duties and obligations of the Guarantee Trustee shall be determined
solely by the express provisions of this Guarantee, and the Guarantee Trustee
shall not be liable except for the performance of such duties and obligations as
are specifically set forth in this Guarantee, and



4









 







no implied covenants or obligations shall be read into this Guarantee against the
Guarantee Trustee; and




     (B) in the absence of bad faith on the part of the Guarantee Trustee, the 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
Guarantee Trustee and conforming to the requirements of this Guarantee; but in the case
of any such certificates or opinions furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;



          (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer of the Guarantee Trustee, unless it shall be proved that such Responsible
Officer of the Guarantee Trustee or the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;




          (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the written direction of the Holders of not less
than a Majority in liquidation amount of the Capital Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee; and




          (iv) no provision of this Guarantee shall require the 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 Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds is not reasonably assured to it under the
terms of this Guarantee, or security and indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably assured to
it.




          Section 2.2 Certain Rights of Guarantee Trustee




          (a) Subject to the provisions of Section 2.1:





          (i) The 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 Guarantee shall be
sufficiently evidenced by an Officer’s Certificate.




          (iii) Whenever, in the administration of this Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence



5









 







is herein specifically prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officer’s Certificate of the Guarantor which, upon receipt of such
request, shall be promptly delivered by the Guarantor.




          (iv)
The Guarantee Trustee shall have no duty to see to any recording, filing or registration
of any instrument (or any rerecording, refiling or registration thereof).




          (v) The 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. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Guarantee from any court of
competent jurisdiction.




          (vi) The Guarantee Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Guarantee Trustee, against the costs, expenses (including attorneys’ fees and expenses and
the expenses of the 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 Guarantee Trustee; provided, however, that nothing contained in this
Section 2.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in it by this Guarantee.




          (vii) The Guarantee Trustee shall not be bound 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 Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.




          (viii) The 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 Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.




          (ix) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the Holders
of the Capital Securities, and the signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall be required to inquire as
to the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Guarantee, both



6









 







of which shall be conclusively evidenced by the Guarantee Trustee’s or its agent’s taking such action.




          (x) Whenever in the administration of this Guarantee the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders of
a Majority in liquidation amount of the Capital Securities, (B) may refrain from enforcing
such remedy or right or taking such other action until such instructions are received and (C)
shall be protected in conclusively relying on or acting in accordance with such instructions.




          (xi) The Guarantee Trustee shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Guarantee.



          (b) No provision of this Guarantee shall be deemed to impose any duty or obligation on the
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
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 Guarantee Trustee shall be construed to be a duty.




          Section 2.3 Not Responsible for Recitals or Issuance of Guarantee




          The recitals contained in this Guarantee shall be taken as the statements of the Guarantor,
and the Guarantee Trustee does not assume any responsibility for their correctness. The Guarantee
Trustee makes no representation as to the validity or sufficiency of
this Guarantee.




          Section 2.4
Events of Default; Waiver




          (a) An Event of Default under this Guarantee will occur upon the failure of the Guarantor to
perform any of its payment or other obligations hereunder.




          (b) The Holders of a Majority in liquidation amount of Capital Securities may, voting or
consenting as a class, on behalf of the Holders of all of the Capital Securities, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and shall be deemed to have been cured, for every purpose of this Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.




          Section 2.5 Events of Default; Notice




          (a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Capital Securities, notices of
all Events of Default actually known to a Responsible Officer of the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice,




7









 







provided, however, that the Guarantee Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Capital Securities.




          (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 from the Guarantor or a Holder of the
Capital Securities (except in the case of a payment default), or a Responsible Officer of the
Guarantee Trustee charged with the administration of this Guarantee shall have obtained actual
knowledge, thereof.




ARTICLE III

GUARANTEE TRUSTEE




          Section 3.1
Guarantee Trustee; Eligibility




          (a) There shall at all times be a Guarantee Trustee which shall:





          (i) not be an Affiliate of the Guarantor; and




          (ii) be a corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, or Person authorized
under such laws to exercise corporate trust powers, having a combined capital and surplus of
at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes of this Section
3.1(a) (ii), the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published.



          (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section
3.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 3.2(c).




          (c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee shall either eliminate
such interest or resign to the extent and in the manner provided by, and subject to this Guarantee.




          Section 3.2
Appointment, Removal and Resignation of Guarantee Trustee




          (a) Subject to Section 3.2(b), the Guarantee Trustee may be appointed or removed without cause
at any time by the Guarantor except during an Event of Default.




          (b) The Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until a
Successor Guarantee Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor.





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          (c) The Guarantee Trustee appointed to office shall hold office until a Successor Guarantee
Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by
an instrument in writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.




          (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 3.2 within 60 days after delivery of an instrument of removal or
resignation, the Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee.




          (e) No Guarantee Trustee shall be liable for the acts or omissions to act of any Successor
Guarantee Trustee.




          (f) Upon termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing to
the Guarantee Trustee under Sections 7.2 and 7.3 accrued to the date of such termination, removal
or resignation.




ARTICLE IV

GUARANTEE




          Section 4.1 Guarantee




          (a) 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 (except as defense of payment by the
Issuer), 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 required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.




          (b) The Guarantor hereby also agrees to assume any and all Obligations of the Issuer and in
the event any such Obligation is not so assumed, subject to the terms and conditions hereof, the
Guarantor hereby irrevocably and unconditionally guarantees to each Beneficiary the full payment,
when and as due, of any and all obligations to such Beneficiaries. This Agreement is intended to be
for the Beneficiaries who have received notice hereof.




          Section 4.2 Waiver of Notice and Demand




          The Guarantor hereby waives notice of acceptance of this 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.





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          Section 4.3 Obligations Not Affected




          The obligations, covenants, agreements and duties of the Guarantor under this 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
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, Special Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Capital Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection with, the Capital Securities (other
than an extension of time for payment of Distributions, Redemption Price, Special Redemption Price,
Liquidation Distribution or other sum payable that results from the extension of any interest
payment period on the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);




          (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 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 Capital Securities;




          (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or




          (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 4.3 that the obligations
of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.




          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 4.4 Rights of Holders




          (a) The Holders of a Majority in liquidation amount of the Capital Securities have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Guarantee; provided, however,




10









 







that (subject to Sections 2.1 and 2.2) the Guarantee Trustee shall have the right to decline to
follow any such direction if the Guarantee Trustee shall determine that the actions so directed
would be unjustly prejudicial to the Holders not taking part in such direction or if the Guarantee
Trustee being advised by counsel determines that the action or proceeding so directed may not
lawfully be taken or if the Guarantor Trustee in good faith by its board of directors or trustees,
executive committees or a trust committee of directors or trustees and/or Responsible Officers
shall determine that the action or proceedings so directed would involve the Guarantee Trustee in
personal liability.




          (b) Any Holder of Capital Securities may institute a legal proceeding directly against the
Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee, without first instituting
a legal proceeding against the Issuer, the Guarantee Trustee or any other Person. The Guarantor
waives any right or remedy to require that any such action be brought first against the Issuer, the
Guarantee Trustee or any other Person before so proceeding directly against the Guarantor.




          Section 4.5 Guarantee of Payment




          This Guarantee creates a guarantee of payment and not of collection.




          Section 4.6 Subrogation




          The Guarantor shall be subrogated to all (if any) rights of the Holders of Capital Securities
against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this
Guarantee; provided, however, that the Guarantor shall not (except to the extent required by
applicable 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 Guarantee, if, after giving effect to any such payment, any amounts are due and
unpaid under this 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 4.7 Independent Obligations




          The Guarantor acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the 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
Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 4.3 hereof.




          Section 4.8 Enforcement




          A Beneficiary may enforce the obligations of the Guarantor contained in Section 4.1(b)
directly against the Guarantor, and the Guarantor waives any right or remedy to require that any
action be brought against the Issuer or any other person or entity before proceeding against the
Guarantor.





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          The Guarantor shall be subrogated to all rights (if any) of any Beneficiary against the Issuer
in respect of any amounts paid to the Beneficiaries by the Guarantor under this Guarantee;
provided, however, that the Guarantor shall not (except to the extent required by applicable
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 Guarantee, if, after giving effect to such payment, any amounts are due and unpaid under
this Guarantee.




ARTICLE V

LIMITATION OF TRANSACTIONS; SUBORDINATION




          Section 5.1 Limitation of Transactions




          So long as any Capital Securities remain outstanding, if (a) there shall have occurred and be
continuing an Event of Default or (b) the Guarantor shall have selected an Extension Period as
provided in the Declaration and such period, or any extension thereof, shall have commenced and be
continuing, then (A) if the Guarantor is a limited partnership, it may not (x) declare or pay any
distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the partnership interests of the Guarantor or (y) make any payment of principal of or interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the Guarantor that
rank pari passu in all respects with or junior in interest to the Debentures (other than (i)
payments under this Guarantee, (ii) repurchases, redemptions or other acquisitions of partnership
interests of the Guarantor in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers or consultants, in
connection with a equity reinvestment or equity purchase plan or in connection with the issuance of
partnership interests of the Guarantor (or securities convertible into or exercisable for such
partnership interests) as consideration in an acquisition transaction entered into prior to
occurrence of the Event of Default or the applicable Extension Period, (iii) as a result of any
exchange or conversion of any class or series of the partnership interests of the Guarantor (or any
equity securities of a subsidiary of the Guarantor) for any class or series of the partnership
interests of the Guarantor or of any class or series of the Guarantor’s indebtedness for any class
or series of the partnership interests of the Guarantor), (iv) the purchase of fractional interests
in partnership interests of the Guarantor pursuant to the conversion or exchange provisions of such
partnership interests or the partnership interests being converted or exchanged, (v) any
distribution in connection with any equity rights plan, or the issuance of rights, stock or other
property under any equity rights plan, or the redemption or repurchase of rights pursuant thereto,
or (vi) any distribution in the form of partnership interests, warrants, options or other rights
where the distributed partnership interests or the partnership interests issuable upon exercise of
such warrants, options or other rights are of the same class or series of partnership interests as
that on which the distribution is being made or ranks pari passu with or junior to such class or
series of partnership interests), or (B) if the Guarantor is a corporation, it may not (x) 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 or (y) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor that rank pari passu in all respects with or junior in interest to the Debentures (other
than (i) payments under this Guarantee, (ii) repurchases, redemptions or other acquisitions of
shares of capital stock of the Guarantor in connection with






12









 







any employment contract, benefit plan or other similar arrangement with or for the benefit of one
or more employees, officers, directors, or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital stock of the
Guarantor (or securities convertible into or exercisable for such capital stock) as consideration
in an acquisition transaction entered into prior to occurrence of the Event of Default or the
applicable Extension Period, (iii) as a result of any exchange of conversion of any class or series
of the Guarantor’s capital stock (or any capital stock of a subsidiary of the Guarantor) for any
class or series of the Guarantor’s capital stock or of any class or series of the Guarantor’s
indebtedness for any class or series of the Guarantor’s capital stock, (iv) 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, (v) any
declaration of a dividend in connection with any stockholder’s rights plan, or the issuance of
rights, stock or other property under any stockholder’s rights plan, or the redemption or
repurchase of rights pursuant thereto, or (vi) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock).




          Section 5.2 Ranking




          This Guarantee will constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all present and future Senior Indebtedness (as
defined in the Indenture) of the Guarantor. By their acceptance thereof, each Holder of Capital
Securities agrees to the foregoing provisions of this Guarantee and the other terms set forth
herein.




          The right of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiary’s liquidation or reorganization or otherwise is subject to
the prior claims of creditors of that subsidiary, except to the extent the Guarantor may itself be
recognized as a creditor of that subsidiary. Accordingly, the Guarantor’s obligations under this
Guarantee will be effectively subordinated to all existing and future liabilities of the
Guarantor’s subsidiaries, and claimants should look only to the assets of the Guarantor for
payments thereunder. This Guarantee does not limit the incurrence or issuance of other secured or
unsecured debt of the Guarantor, including Senior Indebtedness of the Guarantor, under any
indenture or agreement that the Guarantor may enter into in the future or otherwise.




ARTICLE VI

TERMINATION




          Section 6.1 Termination




          This Guarantee shall terminate as to the Capital Securities (i) upon full payment of the
Redemption Price or the Special Redemption Price, as the case may be, of all Capital Securities
then outstanding, (ii) upon the distribution of all of the Debentures to the Holders of all of the
Capital Securities or (iii) upon full payment of the amounts
payable in accordance with the
Declaration upon dissolution of the Issuer. This Guarantee will continue to be effective or






13









 







will be reinstated, as the case may be, if at any time any Holder of Capital Securities must
restore payment of any sums paid under the Capital Securities or under this Guarantee.




ARTICLE VII

INDEMNIFICATION




          Section 7.1 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
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 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 Issuer or the Guarantor and upon such information, opinions, reports or statements presented
to the Issuer or 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, if selected by
such Indemnified Person, has been selected with reasonable care by such Indemnified Person,
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 Capital Securities might properly be paid.




          Section 7.2 Indemnification




          (a) The Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim or expense incurred
without negligence or willful misconduct on the part of the Indemnified Person, arising out of or
in connection with the acceptance or administration of the trust or trusts hereunder, including but
not limited to the costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or liability in connection
with the exercise or performance of any of the Indemnified Person’s powers or duties hereunder.
The obligation to indemnify as set forth in this Section 7.2 shall survive the resignation or
removal of the Guarantee Trustee and the termination of this Guarantee.




          (b) Promptly after receipt by an Indemnified Person under this Section 7.2 of notice of the
commencement of any action, such Indemnified Person will, if a claim in respect thereof is to be
made against the Guarantor under this Section 7.2, notify the Guarantor in writing of the
commencement thereof; but the failure so to notify the Guarantor (i) will not relieve the Guarantor
from liability under paragraph (a) above unless and to the extent that the Guarantor did not
otherwise learn of such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve the Guarantor




14









 







from any obligations to any Indemnified Person other than the indemnification obligation provided
in paragraph (a) above. The Guarantor shall be entitled to appoint counsel of the Guarantor’s
choice at the Guarantor’s expense to represent the Indemnified Person in any action for which
indemnification is sought (in which case the Guarantor shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the Indemnified Person or Persons except as
set forth below); provided, however, that such counsel shall be satisfactory to the Indemnified
Person. Notwithstanding the Guarantor’s election to appoint counsel to represent the Guarantor in
an action, the Indemnified Person shall have the right to employ separate counsel (including local
counsel), and the Guarantor shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the Guarantor to represent the Indemnified Person would
present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the Indemnified Person and the Guarantor and the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it
and/or other Indemnified Person which are different from or additional to those available to the
Guarantor, (iii) the Guarantor shall not have employed counsel satisfactory to the Indemnified
Person to represent the Indemnified Person within a reasonable time after notice of the institution
of such action or (iv) the Guarantor shall authorize the Indemnified Person to employ separate
counsel at the expense of the Guarantor. The Guarantor will not, without the prior written consent
of the Indemnified Persons, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the Indemnified Persons are
actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Person from all liability arising out of such
claim, action, suit or proceeding.




          Section 7.3
Compensation; Reimbursement of Expenses




          The Guarantor agrees:




          (a) to pay to the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a trustee of an express
trust); and




          (b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Guarantee (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or willful misconduct.




          The provisions of this Section 7.3 shall survive the resignation or removal of the Guarantee
Trustee and the termination of this Guarantee.





15









 








ARTICLE VIII

MISCELLANEOUS




          Section 8.1 Successors and Assigns




          All guarantees and agreements contained in this Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then outstanding. Except in connection with any merger or
consolidation of the Guarantor with or into another entity or any sale, transfer or lease of the
Guarantor’s assets to another entity, in each case, to the extent permitted under the Indenture,
the Guarantor may not assign its rights or delegate its obligations under this Guarantee without
the prior approval of the Holders of at least a Majority in liquidation amount of the Capital
Securities.




          Section 8.2 Amendments




          Except with respect to any changes that do not adversely affect the rights of Holders of the
Capital Securities in any material respect (in which case no consent of Holders will be required),
this Guarantee may be amended only with the prior approval of the Holders of not less than a
Majority in liquidation amount of the Capital Securities. The provisions of the Declaration with
respect to amendments thereof shall apply equally with respect to amendments of the Guarantee.




          Section 8.3 Notices




          All notices provided for in this 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 Guarantee trustee, at the Guarantee Trustee’s mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to the Holders of the
Capital Securities):



The Bank of New York

101 Barclay Street, Floor 21W

New York, NY 10286

Attention: Corporate Trust Administration

Telecopy: (212) 815-5915




          (b) 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 Holders of the Capital Securities and to
the Guarantee Trustee):



Alliance Capital Partners, LP

8100 Nations Way

Jacksonville, Florida 33256

Attention: Stephen B. Matheson

Telecopy: (904) 281-6443




16









 








          (c) If given to any Holder of the 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 8.4 Benefit




          This Guarantee is solely for the benefit of the Holders of the Capital Securities and, subject
to Section 2.1(a), is not separately transferable from the Capital Securities.




          Section 8.5 Governing Law




          THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.




          Section 8.6 Counterparts




          This Guarantee may contain more than one counterpart of the signature page and this Guarantee
may be executed by the affixing of the signature of the Guarantor and the Guarantee Trustee to any
of such counterpart signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the signers had signed a
single signature page.





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          THIS GUARANTEE is executed as of the day and year first above written.




	 	 	 	 	 	 	 	 	 

	 	 	Alliance Capital Partners, LP,

     as Guarantor	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Alliance Capital Partners, Inc.,

the sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ ROBERT M. CLEMENTS	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Robert M. Clements	 	 
	 	 	 	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK,

     as Guarantee Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ MARY LAGUMINA	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Mary LaGumina	 	 
	 

	 	 	 	Title:
	 	Vice President