EXHIBIT 4(h)
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GUARANTEE AGREEMENT
UCU CAPITAL TRUST I
Dated as of ______ __, 1999
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _______ ___, 1999,
is executed and delivered by UTILICORP UNITED, INC., a Delaware corporation (the
"Guarantor"), and The Chase Manhattan Bank, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Securities (as defined herein) and of UCU 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 _______ __, 1999, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Issuer, the Issuer
is issuing on the date hereof _________ preferred securities, stated liquidation
amount $25 per security, having an aggregate liquidation amount of $___________,
designated the Preferred Securities (the "Preferred Securities"); and
WHEREAS, as an incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay in full, to the Holders of the Securities, the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
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.
Unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above shall have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Guarantee shall have the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" shall be to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections or recitals
shall be to Articles and Sections of, or recitals to, this Guarantee unless
otherwise specified;
(e) a term defined in the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation (the "Trust Indenture Act") shall
have the same meaning when used in this Guarantee unless otherwise defined in
this Guarantee; and
(f) a reference to the singular shall include the plural and vice versa,
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable.
GUARANTEE AGREEMENT
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(g) the following terms shall have the following meanings:
"Affiliate" of any specified Person shall mean 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 shall mean 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" shall have meanings correlative to
the foregoing.
"Authorized Officer" of a Person shall mean any Person that is authorized
to bind such Person.
"Business Day" shall mean any day other than a Saturday or Sunday or a day
on which banking institutions in New York City are authorized or required by law
or executive order to remain closed, or a day on which the trustee under the
Indenture or the principal office of the Property Trustee under the Declaration
is closed for business.
"Corporate Trust Office" shall mean the principal office of the Guarantee
Trustee, at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at [450 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.]
"Covered Person" shall mean any Holder or beneficial owner of Securities.
"Debentures" shall mean the series of debentures to be issued by the
Debenture Issuer under the Indenture and to be purchased by the Issuer and held
by the Property Trustee.
"Debenture Issuer" shall mean Utilicorp United Inc., in its capacity as
issuer of the Debentures under the Indenture.
"Direction" by a person shall mean a written direction signed: (a) if the
Person is a natural person, by that Person; or (b) in any other case in the name
of such Person by one or more Authorized Officers of that Person.
"Event of Default" shall mean the failure of the Guarantor to perform any
of its payment or other obligations under this Guarantee.
"Guarantee Payments" shall mean the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid or
made by the Issuer: (i) any accumulated and unpaid Distributions (as defined in
the Declaration) that are required to be paid on the Securities, to the extent
the Issuer has funds available therefor, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption with respect
to the Securities upon redemption of the related Debentures by the Debenture
Issuer upon the occurrence of a Tax Event Redemption or upon repayment of the
Debentures at the maturity thereof, to the extent the Issuer has funds available
therefor, and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than following redemption of the Securities or
the distribution of Debentures to the Holders in exchange for the Securities),
the lesser of (a) the aggregate of the stated liquidation amount and all
accumulated
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and unpaid Distributions on the Securities to the date of payment,
to the extent the Issuer has funds available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders of the
Securities in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" shall mean The Chase Manhattan Bank, until a Successor
Guarantee Trustee to any of them has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter shall mean
each such Successor Guarantee Trustee.
"Holder" shall have the meaning given such term in the Declaration.
"Indemnified Person" shall mean 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.
"Indenture" shall mean the indenture, dated as of _________ __, 1999,
among the Guarantor and The Chase Manhattan Bank, as trustee, as amended and
supplemented (including provisions of the Trust Indenture Act that are deemed
incorporated therein), pursuant to which the Debentures are to be issued.
"Majority in Liquidation Amount" shall mean, except as provided in the
terms of the Securities or the Trust Indenture Act, the Holders of outstanding
Securities, voting together as a single class, or, as the context may require,
the Holders of outstanding Preferred Securities or the Holders of outstanding
Common Securities, voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Officers' Certificate" shall have the meaning given such term in the
Declaration.
"Person" shall mean a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Property Trustee" shall mean The Chase Manhattan Bank, in its capacity as
property trustee under the Declaration.
"Responsible Officer" shall mean, with respect to the Guarantee Trustee,
any officer within the Corporate Trust Office, including any vice- president,
any assistant vice-president, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the Corporate Trust Office customarily
performing functions similar to those performed by any of the above designated
officers and also shall mean, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred due to that officer's
knowledge of and familiarity with the particular subject.
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"Successor Guarantee Trustee" shall mean a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Tax Event Redemption" shall have the meaning given such term in the
Declaration.
"Trust Enforcement Event" shall have the meaning given such term in the
Declaration.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act: Application.
(a) This Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and, to the extent applicable,
shall be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee conflicts
with the duties imposed by Section 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties of the Trust Indenture Act shall control.
SECTION 2.2. List of Holders of Securities.
(a) The Guarantor shall provide the Guarantee Trustee with a list, in such
form as the Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") (i) within one Business Day
after January 1 and July 1 of each year, and (ii) at any other time, within 30
days of receipt by the Guarantor of a written request from the Guarantee Trustee
for a List of Holders as of a date no more than 15 days before such List of
Holders is given to the Guarantee Trustee. If at any time the List of Holders
does not differ from the most recent List of Holders given to the Guarantee
Trustee by the Guarantor, the Guarantor shall not be obligated to provide such
List of Holders. The Guarantee Trustee shall preserve, in as current form as is
reasonably practicable, all information contained in Lists of Holders it
receives in its capacity as Guarantee Trustee; provided that the Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Preferred Securities), the Guarantee
Trustee shall provide to the Holders of the Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee also shall comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4. Periodic Reports to Guarantee Trustee.
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The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate. SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Securities may, by
vote, on behalf of the Holders of all of the Securities, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee. No such waiver shall
extend to any subsequent Event of Default or other default or impair any right
consequent thereon.
SECTION 2.7. Event 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 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; provided that the Guarantee Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Guarantee Trustee determines in good faith that the withholding
of such notice is in the interests of the Holders of the 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
or a Responsible Officer of the Guarantee Trustee, charged with the
administration of the Declaration, shall have obtained actual knowledge.
SECTION 2.8. Conflicting Interests.
The Declaration and the Indenture shall be deemed to be specifically
described in this Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
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(a) This Guarantee shall be held by the Guarantee Trustee for the benefit
of the Holders of the Securities. The Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Securities exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee pursuant to Section 4.2. 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 a
Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall
enforce this Guarantee for the benefit of the Holders of the Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only those duties 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 2.6), the Guarantee Trustee shall
exercise 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 individual 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 such Events of Default that may have occurred: (A) the duties and
obligations of the Guarantee Trustee shall be determined solely by reference to
the express provisions of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of those duties and obligations specifically
set forth in this Guarantee, and 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 that are specifically required to
be furnished to the Guarantee Trustee under this Guarantee, the Guarantee
Trustee shall be under a duty to examine such certificates or opinions 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 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
direction of the Holders of not less than a
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Majority in Liquidation Amount of the Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of this Guarantee, or the exercise of any trust or power
conferred upon each 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 or liability is not reasonably assured to it
under the terms of this Guarantee or indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably assured to
it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(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 a Direction or an Officers' 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 is specifically prescribed in this Guarantee) may
request, in the absence of bad faith on its part, and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to record, file or register
any instrument (or rerecord, refile or reregister such instrument).
(v) The Guarantee Trustee may consult with counsel of its choice or other
experts. The advice or opinion of such counsel and experts with respect to legal
matters or advice within the scope of such experts' area of expertise, and the
written advice or opinion of such counsel with respect to such matters, shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by the Guarantee Trustee under this Guarantee 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 of the Securities, unless such Holder has provided to the
Guarantee Trustee security and indemnity, reasonably
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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 thereby,
including such reasonable advances as may be requested by the Guarantee Trustee.
The foregoing will not relieve the Guarantee Trustee, upon the occurrence of an
Event of Default under this Guarantee, of its obligation to exercise the rights
and powers vested in it by this Guarantee.
(vii) The Guarantee Trustee shall be bound to investigate 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
vested in it by this Guarantee or perform any duties imposed upon it by this
Guarantee 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 by the Guarantee
Trustee with due care under this Guarantee.
(ix) Any action taken by the Guarantee Trustee or its agents under this
Guarantee shall bind the Holders of the 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 investigate the
authority of the Guarantee Trustee so to act or the Guarantee Trustee's
compliance with any of the terms and provisions of this Guarantee, both of which
shall be evidenced conclusively 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 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.
(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 to act 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 3.3. 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.
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ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. 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 a corporation or Person
permitted by the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, 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
the requirements of the applicable supervising or examining authority, then, for
the purposes of this Section 4.1(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 4.l(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set forth in Section 4.2(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 and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of Guarantee Trustees.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by a written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor Guarantee
Trustee has been appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or subsequent accounting)
by a written instrument 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 a written
instrument 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 shall
have accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent
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jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, it may deem proper, appoint a
Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions of any
Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts accrued to the date of such termination, removal
or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
To the extent set forth in this Guarantee, the Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders of the Securities the
Guarantee Payments (without duplication of amounts paid by the Issuer), as and
when due, regardless of any defense, right of set-off or counterclaim that the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders of the Securities or by causing the Issuer to pay such
amounts to the Holders of the Securities.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee and of
any liability to which this Guarantee applies or may apply, presentment, demand
for payment, any right to require a proceeding first against the Issuer or any
other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this 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 Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, redemption price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with, the Securities;
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(c) any failure, omission, delay or lack of diligence on the part of the
Holders of the Securities to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders of the Securities pursuant to the terms
of the Securities, or any action on the part of the Issuer granting indulgence
or an 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 Securities;
(f) the settlement or compromise of any obligation guaranteed or incurred
in this Guarantee; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of the Guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor under this Guarantee
shall be absolute and unconditional under any and all circumstances. There shall
be no obligation of the Holders of the Securities to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of the 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.
(b) If the Guarantee Trustee fails to enforce this Guarantee, any Holder
of the Securities may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee, without first instituting
a legal proceeding directly against the Issuer, the Guarantee Trustee or any
other Person. Notwithstanding the foregoing, if the Guarantor has failed to make
a Guarantee Payment, a Holder of Securities may directly institute a proceeding
against the Guarantor for enforcement of this Guarantee for such payment. The
Guarantor waives any right or remedy to require that any action on this
Guarantee be brought first against the Issuer or any other Person before
proceeding directly against the Guarantor.
SECTION 5.5. Guarantee of Payment.
This Guarantee constitutes a guarantee of payment and not of collection.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all the rights, if any, of the
Holders of the Securities against the Issuer with respect to 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 mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result
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of payment under this Guarantee, if, at the time of 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 of the Securities and to pay over such
amount to such Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Securities, and that the
Guarantor shall be liable as principal and as debtor under this Guarantee to
make Guarantee Payments pursuant to the terms of this Guarantee notwithstanding
the occurrence of any event referred to in subsections (a) through (g) of
Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.
As long as any Securities remain outstanding, if an Event of Default
occurs under the Guarantee or a Trust Enforcement Event occurs under the
Declaration and written notice of such event has been given to the Guarantor,
then the Guarantor may not (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire, or make a liquidation payment with respect to any
of the Guarantor's capital stock or (ii) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor that rank on a parity with or junior in interest to the Debentures or
make any guarantee payments with respect to any guarantee by the Guarantor of
the debt securities of any subsidiary of the Guarantor if such guarantee ranks
on a parity with or junior in interest to the Debentures (other than (a)
purchases or acquisitions of capital stock of the Guarantor in connection with
the satisfaction by the Guarantor of its obligations under any employee benefit
plans or the satisfaction by the Guarantor of its obligations pursuant to any
contract or security outstanding on the date of such event requiring the
Guarantor to purchase capital stock of the Guarantor, (b) as a result of a
reclassification of the Guarantor's capital stock or the exchange or conversion
of one class or series of the Guarantor's or Industries' capital stock for
another class or series of the Guarantor's capital stock, (c) 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, (d) dividends or distributions in capital stock of the
Guarantor, (e) redemptions or repurchases of any rights pursuant to a rights
agreement and (f) payments under this Guarantee).
SECTION 6.2. Ranking.
If a Trust Enforcement Event has occurred and is continuing under the
Declaration, the rights of the Holders of the Common Securities to receive
Guarantee Payments will be subordinated to the rights of the Holders of
Preferred Securities to receive Guarantee Payments.
ARTICLE VII
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XXXXXXXXXXX
XXXXXXX 7.1. Termination.
This Guarantee will terminate upon (i) the Guarantor's full payment of the
redemption price of all the Securities [in the event of a Tax Event Redemption
or at the maturity of the Debentures], (ii) distribution of the Debentures held
by the Issuer to the Holders of the Securities or (iii) payment in full of the
amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of the Securities must restore payment of any sums paid under the Securities or
under this Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission 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 Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to the Holders of the Preferred Securities might properly be
paid.
SECTION 8.2. Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission by such Indemnified Person in good faith in accordance with this
Guarantee Agreement and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by this
Guarantee Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions.
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(b) To the fullest extent permitted by applicable law, reasonable
out-of-pocket expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if it
shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.2(a).
(c) The provisions set forth in this Section 8.2 shall survive the
termination of the Guarantee or the resignation or removal of the Guarantee
Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. 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 Securities then
outstanding.
SECTION 9.2. Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Holders of the 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 at least a Majority in Liquidation Amount of
the Securities. The provisions of Section 11.2 of the Declaration with respect
to meetings of Holders of the Securities apply to the giving of such approval.
SECTION 9.3. 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 registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to the
Holders of the Securities):
The Chase Manhattan Bank [450 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000]
Attention: Corporate Trust Administration, Telecopy No.: __________________
(b) If given to the Guarantor, at the mailing address set forth below (or
such other address as the Guarantor may give notice of to the Holders of the
Securities):
Utilicorp United, Inc. [___________________], Attention:
[_______________], Telecopy No.: [__________].
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(c) If given to any Holder of the Securities, at such Holder's address as
set forth on the books and records of the Issuer. All such notices shall be
deemed to have been given when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 9.4. Benefit.
This Guarantee shall be solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable from
the Securities.
SECTION 9.5. Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.6. Governing Law.
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
each of the parties to one of such counterpart signature pages. All 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.
UTILICORP UNITED INC.,
as Guarantor
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Guarantee Trustee
By:_______________________________
Name:
Title:
