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EXHIBIT 4.10
CAPITAL SECURITIES GUARANTEE
K N ENERGY, INC.
Dated as of ___________, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.01 Definitions and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.01 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.02 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.03 Reports by the Capital Securities Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.04 Periodic Reports to Capital Securities Guarantee Trustee . . . . . . . . . . . . . . . . . . 6
SECTION 2.05 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.06 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.07 Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.08 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OFCAPITAL SECURITIES GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.01 Powers and Duties of the Capital Securities Guarantee Trustee . . . . . . . . . . . . . . . . 8
SECTION 3.02 Certain Rights of Capital Securities Guarantee Trustee . . . . . . . . . . . . . . . . . . . 9
SECTION 3.03 Not Responsible for Recitals or Issuance of Capital Securities Guarantee . . . . . . . . . 12
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.01 Capital Securities Guarantee Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.02 Appointment, Removal and Resignation of Capital Securities Guarantee Trustee . . . . . . . 13
ARTICLE V
GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.01 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.02 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.03 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.04 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.05 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.06 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.07 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.01 Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.02 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.01 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.01 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.02 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 10.01 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 10.02 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 10.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 10.04 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 10.05 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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CAPITAL SECURITIES GUARANTEE
This GUARANTEE (the "Capital Securities Guarantee"), dated as of
_________, 1997, is executed and delivered by K N ENERGY, INC., a Kansas
corporation (the "Guarantor"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as trustee (the "Capital Securities Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Capital
Securities (as defined herein) of K N 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 April 24, 1997, among the trustees of the Issuer,
the Guarantor, as sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer issued on April
24, 1997 100,000 capital securities, having an aggregate liquidation amount of
$100,000,000, such capital securities being designated the 8.56% Series A
Capital Trust Pass-through Securities SM(1) (collectively the "Series A Capital
Securities") and, in connection with an Exchange Offer (as defined in the
Declaration) has agreed to execute and deliver this Capital Securities
Guarantee for the benefit of Holders of the Series B Capital Securities (as
defined in the Declaration) to be issued in the Exchange Offer.
WHEREAS, the Guarantor also desires to extend the benefit of this
Capital Securities Guarantee to the Holders of the Series A Capital Securities
and, having done so, to terminate the Series A Capital Securities Guarantee (as
defined herein) as redundant.
WHEREAS, as incentive for the Holders to acquire the Series B Capital
Securities in exchange for the Series A Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Capital Securities Guarantee, to pay to the Holders the Guarantee Payments
(as defined below), and the Guarantor agrees to make certain other payments on
the terms and conditions set forth herein.
WHEREAS, the Guarantor has executed and delivered a guarantee (the
"Common Securities Guarantee"), with substantially identical terms to this
Capital Securities Guarantee, for the benefit of the holders of the Common
Securities (as defined herein), except that if an Event of Default (as defined
in the Declaration) has occurred and is continuing, the rights of holders of
the Common Securities to receive Guarantee Payments under the Common Securities
Guarantee are subordinated, to the extent and in the manner set forth in the
Common Securities Guarantee, to the rights of Holders of Series A Capital
Securities and the Series B Capital Securities to receive Guarantee Payments
under this Capital Securities Guarantee.
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(1) Salomon Brothers Inc has filed an application with the United
States Patent and Trademark Office for the registration of the Capital Trust
Pass-through Securities service mark.
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NOW, THEREFORE, in consideration of the acquisition of the Series B
Capital Securities by each Holder pursuant to the Exchange Offer, which
acquisition the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Capital Securities Guarantee for the
benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01 Definitions and Interpretation
In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Capital Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.01;
(b) terms defined in the Declaration have the same meaning when
used in this Capital Securities Guarantee unless otherwise defined in this
Capital Securities Guarantee;
(c) a term defined anywhere in this Capital Securities Guarantee
has the same meaning throughout;
(d) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Capital Securities Guarantee to
Articles and Sections are to Articles and Sections of this Capital Securities
Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Capital Securities Guarantee, unless otherwise defined in
this Capital Securities Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
day on which banking institutions in Wilmington, Delaware or New York, New York
are authorized or required by law or executive order to close.
"Capital Securities" means the Series A Capital Securities and the
Series B Capital Securities.
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"Capital Securities Guarantee Trustee" means Wilmington Trust Company,
a Delaware banking corporation, until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Capital Securities Guarantee and thereafter means each such
Successor Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital Securities
Guarantee Trustee at which the corporate trust business of the Capital
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Capital Securities
Guarantee is located at 0000 X. Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Debentures" means either series of subordinated debt securities of
the Guarantor designated the 8.56% Junior Subordinated Deferrable Interest
Debentures due April 15, 2027 held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Capital Securities Guarantee.
"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 accumulated and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Capital
Securities to the extent the Issuer has funds on hand legally available
therefor at such time, (ii) the redemption price, including all accumulated and
unpaid Distributions to the date of redemption (the "Redemption Price") to the
extent the Issuer has funds on hand legally available therefor at such time,
with respect to any Capital Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary dissolution and liquidation of the Issuer
(other than in connection with the distribution of Debentures to the Holders in
exchange for Capital Securities as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accumulated and unpaid
Distributions on the Capital Securities to the date of payment, to the extent
the Issuer has funds on hand legally available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer.
"Holder" shall mean 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.
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"Indemnified Person" means the Capital Securities Guarantee Trustee,
any Affiliate of the Capital Securities Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of April 24, 1997, between
the Guarantor (the "Debenture Issuer") and Wilmington Trust Company, as
trustee, pursuant to which the Debentures were or are to be issued to the
Property Trustee of the Issuer.
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, a vote by Xxxxxx(s) 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 Capital Securities outstanding at the time of such vote.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, a Vice Chairman, the Chief Executive
Officer, the President, a Vice President, the Comptroller, the Secretary or an
Assistant Secretary of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Capital
Securities Guarantee (other than pursuant to Section 314(a)(4) of the Trust
Indenture Act) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) 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
(c) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all subordinated debentures issued by the
Guarantor from time to time and sold to trusts to be established by the
Guarantor (if any), in each case similar to the Issuer.
"Other Guarantees" means all guarantees to be issued by the Guarantor
with respect to capital securities (if any) similar to the Capital Securities
issued by other trusts to be established by the Guarantor (if any), in each
case similar to the Issuer.
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"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 Capital Securities
Guarantee Trustee, any officer within the Corporate Trust Office of the Capital
Securities Guarantee Trustee, including any vice president, any assistant vice
president, any secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer, any senior trust officer or other officer in the
Corporate Trust Office of the Capital Securities Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular 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.
"Series A Capital Securities Guarantee" means the Series A Capital
Securities Guarantee, dated as of April 24, 1997, between the Guarantor and
Wilmington Trust Company, as Trustee.
"Successor Capital Securities Guarantee Trustee" means a successor
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Common Securities and the Capital
Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application
(a) This Capital Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Capital
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions; and
(b) if and to the extent that any provision of this Capital
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.02 Lists of Holders of Securities
(a) The Guarantor shall provide the Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Capital Securities) with a
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list, in such form as the Capital Securities Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such date, (i) within one Business Day after each Record Date (as defined in
the Indenture), and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Capital Securities
Guarantee Trustee; provided that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Capital Securities Guarantee
Trustee by the Guarantor. The Capital Securities Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.03 Reports by the Capital Securities Guarantee Trustee
Within 90 days after December 31 of each year, commencing December 31,
1997, the Capital Securities Guarantee Trustee shall provide to the Holders
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Capital Securities Guarantee Trustee shall also comply with
the other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.04 Periodic Reports to Capital Securities Guarantee Trustee
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such documents, reports and information as required by Section 314 (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, provided that such compliance certificate shall
be delivered on or before 120 days after the end of each fiscal year of the
Guarantor. Delivery of such reports, information and documents to the Capital
Securities Guarantee Trustee is for informational purposes only, and the
Capital Securities Guarantee Trustee's receipt of such reports, information and
documents shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Guarantor's compliance with any of its covenants hereunder (as to which the
Capital Securities Guarantee Trustee is entitled to rely exclusively on
Officers' Certificates).
SECTION 2.05 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Capital Securities 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.
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SECTION 2.06 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Capital Securities
may, on behalf of all the Holders, waive by vote 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 Capital Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.07 Event of Default; Notice
(a) The Capital Securities Guarantee Trustee shall, within 30
Business Days after the occurrence of an Event of Default becomes actually
known to a Responsible Officer of the Capital Securities Guarantee Trustee,
mail by first class postage prepaid to all Holders notices of all defaults
actually known to such Responsible Officer of the Capital Securities Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
provided, however, that, except in the case of default in the payment of any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be protected
in withholding notice of such Event of Default if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Capital Securities Guarantee Trustee, acting in
good faith, determines that the withholding of such notice is in the interests
of the holders of the Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless (i) the Capital Securities
Guarantee Trustee shall have received written notice from the Guarantor or a
Holder of such Event of Default or (ii) a Responsible Officer of the Capital
Securities Guarantee Trustee charged with the administration of the Capital
Securities Guarantee shall have obtained actual knowledge of such Event of
Default.
SECTION 2.08 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Capital Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.01 Powers and Duties of the Capital Securities Guarantee Trustee
(a) This Capital Securities Guarantee shall be held by the Capital
Securities Guarantee Trustee for the benefit of the Holders, and the Capital
Securities Guarantee Trustee shall not transfer this Capital Securities
Guarantee to any Person except a Holder exercising its rights pursuant to
Section 5.04(b) or to a Successor Capital Securities Guarantee Trustee on
acceptance by such Successor Capital Securities Guarantee Trustee of its
appointment to act as Successor Capital Securities Guarantee Trustee. The
right, title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee Trustee, and
such vesting and succession of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Capital Securities Guarantee Trustee has occurred and is continuing, the
Capital Securities Guarantee Trustee shall enforce this Capital Securities
Guarantee for the benefit of the Holders.
(c) Before the occurrence of any Event of Default and after the
curing or waiving of all Events of Default that may have occurred, the Capital
Securities Guarantee Trustee shall undertake to perform only such duties as are
specifically set forth in this Capital Securities Guarantee, and no implied
covenants shall be read into this Capital Securities Guarantee against the
Capital Securities Guarantee Trustee. If an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.06) and is actually
known to a Responsible Officer of the Capital Securities Guarantee Trustee, the
Capital Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Capital Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the same or similar circumstances in the conduct of his
or her own affairs.
(d) No provision of this Capital Securities Guarantee shall be
construed to relieve the Capital Securities 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 Capital
Securities Guarantee Trustee shall be determined solely by the
express provisions of this Capital Securities Guarantee, and
the Capital Securities Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically
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set forth in this Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Capital
Securities Guarantee against the Capital Securities Guarantee
Trustee; and
(B) in the absence of bad faith on the part of
the Capital Securities Guarantee Trustee, the Capital
Securities 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 Capital Securities Guarantee Trustee and conforming to
the requirements of this Capital Securities Guarantee;
provided that, in the case of any such certificates or
opinions that are specifically required to be furnished to the
Capital Securities Guarantee Trustee by any provision hereof,
the Capital Securities 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 Capital
Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be
liable for any error in judgment made in good faith by a Responsible
Officer of the Capital Securities Guarantee Trustee, unless it shall
be proved that the Capital Securities Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Capital Securities 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 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 Capital Securities Guarantee Trustee, or exercising
any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Capital Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee
shall require the Capital Securities Guarantee Trustee to expend or
risk or its own funds or otherwise incur personal financial liability
in the performance of its duties or in the exercise of its rights or
powers, if the Capital Securities Guarantee Trustee shall have
reasonable grounds for believing that the repaying of such funds or
liability is not reasonably assured to it under the terms of this
Capital Securities Guarantee or indemnity, reasonably satisfactory to
the Capital Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.02 Certain Rights of Capital Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.01:
(i) The Capital Securities 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,
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debenture, note, other evidence of indebtedness or other paper or
document believe 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 Capital Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, and in the absence
of bad faith on its part, the Capital Securities Guarantee Trustee may
request, shall be entitled to receive and may conclusively rely upon
an Officers' Certificate (unless other evidence is herein specifically
prescribed) which shall be promptly delivered by the Guarantor upon
receipt of such request.
(iv) The Capital Securities 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 Capital Securities Guarantee Trustee may consult
with counsel of its own 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
Capital Securities Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this Capital
Securities Guarantee from any court of competent jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers vested in
it by this Capital Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided to the Capital
Securities Guarantee Trustee security and indemnity reasonably
satisfactory to the Capital Securities Guarantee Trustee against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Capital Securities 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 Capital Securities Guarantee
Trustee; provided that nothing contained in this Section 3.02(a)(vi)
shall be taken to relieve the Capital Securities Guarantee Trustee of
its obligation to exercise the rights and powers vested in it by this
Capital Securities Guarantee upon the occurrence of an Event of
Default.
(vii) The Capital Securities 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,
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note, other evidence of indebtedness or other paper or document, but
the Capital Securities Guarantee Trustee, in its own discretion, may
make such further inquiry or investigation into such facts or matters
as it sees fit.
(viii) The Capital Securities 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 Capital Securities 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 Capital Securities Guarantee
Trustee or its agents hereunder shall bind the Holders, and the
signature of the Capital Securities 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
Capital Securities Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Capital Securities
Guarantee, both of which shall be conclusively evidenced by the
Capital Securities Guarantee Trustee's or its agent's taking such
action.
(x) Whenever in the administration of this Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the Capital
Securities Guarantee Trustee (i) may request instructions from the
Holders of a Majority in liquidation amount of the Capital Securities,
(ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received and (iii) shall be
protected in conclusively relying on or acting in accordance with such
instructions.
(xi) The Capital Securities Guarantee Trustee shall not be
liable for any action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by this Capital Securities Guarantee.
(xii) Except as otherwise expressly provided by this
Capital Securities Guarantee, the Capital Securities Guarantee Trustee
shall not be under any obligation to take any action that is
discretionary hereunder.
(b) No provision of this Capital Securities Guarantee shall be
deemed to impose any duty or obligation on the Capital Securities 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 Capital Securities 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, or
which would expose the Capital Securities
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Guarantee Trustee to liability, financial or otherwise. No permissive power or
authority available to the Capital Securities Guarantee Trustee shall be
construed to be a duty.
SECTION 3.03 Not Responsible for Recitals or Issuance of Capital Securities
Guarantee
The recitals contained in this Capital Securities Guarantee shall be
taken as the statements of the Guarantor, and the Capital Securities Guarantee
Trustee does not assume any responsibility for their correctness. The Capital
Securities Guarantee Trustee makes no representation as to the validity or
sufficiency of this Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.01 Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities 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 other 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 fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, such Person publishes reports of condition at least
annually, then, for the purposes of this Section 4.01(a)(ii), the
combined capital and surplus of such Person 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 Capital Securities Guarantee Trustee shall
cease to be eligible to act under Section 4.01(a), the Capital Securities
Guarantee Trustee shall immediately resign, with the effect set forth in
Section 4.02(c).
(c) If the Capital Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Capital Securities Guarantee Trustee and Guarantor
shall comply in all respects with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.
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SECTION 4.02 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee
(a) Subject to Section 4.02(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during the continuance of an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed
in accordance with Section 4.02(a) until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Capital Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Capital Securities Guarantee Trustee shall hold office
until a Successor Capital Securities Guarantee Trustee shall have been
appointed or until such Capital Securities Guarantee Trustee's removal or
resignation. The Capital Securities Guarantee Trustee may resign from office
(without any prior or subsequent accounting) by an instrument in writing
executed by the Capital Securities Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted such
appointment by written instrument delivered to the Guarantor and the resigning
Capital Securities Guarantee Trustee.
(d) If no Successor Capital Securities Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.02
within 60 days after delivery of an instrument of removal or resignation, the
Capital Securities Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for the appointment of a Successor Capital
Securities Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Capital Securities
Guarantee Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Capital Securities Guarantee
Trustee.
(f) Upon termination of this Capital Securities Guarantee or
removal or resignation of the Capital Securities Guarantee Trustee pursuant to
this Section 4.02, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all accrued and unpaid amounts due to the Capital Securities Guarantee
Trustee through the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.01 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts, if any,
theretofore 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 such required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.02 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Capital
Securities 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 required notices and demands.
SECTION 5.03 Obligations Not Affected
Except as otherwise provided herein, the obligations, covenants,
agreements and duties of the Guarantor under this Capital Securities Guarantee
shall not be affected or impaired by reason of the occurrence 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, 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, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on 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;
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(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;
(g) the consummation of the Exchange Offer; or
(h) 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 5.03 that the obligations of the Guarantor with
respect to the Guarantee Payments 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 5.04 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 Capital Securities Guarantee
Trustee in respect of this Capital Securities Guarantee or exercising any trust
or power conferred upon the Capital Securities Guarantee Trustee under this
Capital Securities Guarantee; provided, however, that, subject to Section 3.01,
the Capital Securities Guarantee Trustee shall have the right to decline to
follow any such direction if it shall determine that the action or proceeding
so directed would be unjustly prejudicial to Holders not taking part in such
direction or if it were advised by counsel that such action or proceeding may
not lawfully be taken or if a Responsible Officer of the Capital Securities
Guarantee Trustee shall determine in good faith that such action or proceeding
would involve the Capital Securities Guarantee Trustee in personal liability.
(b) If the Capital Securities Guarantee Trustee fails to enforce
this Capital Securities Guarantee after the Holders of a Majority in
liquidation amount of the Capital Securities have so directed the Capital
Securities Guarantee Trustee, any Holder may institute a legal proceeding
directly against the Guarantor to enforce the Capital Securities Guarantee
Trustee's rights and the obligations of the Guarantor under this Capital
Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Capital Securities Guarantee Trustee or any other Person. The
Guarantor hereby waives any right or remedy to require that any action be
brought first against the Issuer or any other Person before proceeding directly
against the Guarantor.
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SECTION 5.05 Guarantee of Payment
This Capital Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.06 Subrogation
The Guarantor shall be subrogated to all rights (if any) of the
Holders against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Capital Securities 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 of payment under this Capital Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Capital
Securities 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 5.07 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 Capital
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (h), inclusive, of Section 5.03 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01 Limitation of Transactions
So long as any Capital Securities remain outstanding, the Guarantor
shall 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 (which includes common and preferred stock), (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee
by the Guarantor of any securities of any subsidiary of the Guarantor
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in right of payment to the Debentures (other than (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, capital stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto, (c) payments under this
Capital Series Guarantee, (d) as a
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direct result of a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock, (e) 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 or pursuant to an acquisition in which fractional
shares of the Guarantor's capital stock would otherwise be issued and (f)
purchases of common stock related to the issuance of common stock or rights
under any benefit plan for directors, officers, agents or employees of the
Guarantor or its subsidiaries or any of the Guarantor's dividend reinvestment
or director, officer, agent or employee stock purchase plans) if at such time
(A) an Event of Default (as defined in the Indenture) shall have occurred and
be continuing, or would occur upon the taking of any action specified in
clauses (i) through (iii) above, (B) there shall have occurred any event of
which the Guarantor has actual knowledge that (x) is, or with the giving of
notice or the lapse of time, or both, would be an Event of Default (as defined
in the Indenture) and (y) in respect of which the Guarantor shall not have
taken reasonable steps to cure, (C) if such Debentures are held by the Property
Trustee, the Guarantor shall be in default with respect to its payment of any
obligations under this Capital Securities Guarantee or (D) the Guarantor shall
have given notice of its election of the exercise of its right to extend the
interest payment period pursuant to Section 16.01 of the Indenture or with
respect to Other Debentures and any such extension shall be continuing.
SECTION 6.02 Ranking
This Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to Senior Indebtedness (as defined in the Indenture) to the same
extent and in the same manner that the Debentures are subordinated to Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article XV of the Indenture shall apply to the obligations of the Guarantor
under this Capital Securities Guarantee as if (x) such Article XV were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XV, (ii) pari passu with the Debentures,
the Other Debentures, the most senior preferred or preference stock now
outstanding or hereafter issued by the Guarantor, any Other Guarantee, the
Common Securities Guarantee, any Other Common Securities Guarantee and any
guarantee now or hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor; provided that
if an Event of Default has occurred and is continuing, no Guarantee Payments
under the Common Securities Guarantee with respect to the Common Securities or
any guarantee payment under any Other Common Securities Guarantees shall be
made until the Holders shall be paid in full the Guarantee Payments to which
they are entitled under this Capital Securities Guarantee, and (iii) senior to
the Guarantor's common stock.
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ARTICLE VII
TERMINATION
SECTION 7.01 Termination
(a) This Capital Securities Guarantee shall terminate (i) upon
full payment of the Redemption Price (as defined in the Declaration) of all
Capital Securities or (ii) upon liquidation of the Issuer, the full payment of
the amounts payable in accordance with the Declaration or the distribution of
the Debentures to the Holders of all of the Capital Securities.
Notwithstanding the foregoing, this Capital Securities Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid under the Capital Securities or
under this Capital Securities Guarantee.
(b) The Series A Capital Securities Guarantee shall terminate upon
the execution and delivery of this Capital Securities Guarantee, it being
intended that Holders of Series A Capital Securities shall have the same rights
and benefits hereunder as they had under the Series A Capital Securities
Guarantee when originally executed and delivered, without diminution or
enlargement in any manner whatsoever. The provisions of this Section 7.01(b)
are also intended to amend the provisions of clause (iii) of Section 7.01 of
the Series A Capital Securities Guarantee accordingly. Specifically, the words
"exchange of all the Series A Capital Securities for the Series B Capital
Securities in the Exchange Offer and" appearing in such clause are hereby
deleted. Such amendment does not, in the judgment of the Guarantor, materially
adversely affect the rights of Holders of Series A Capital Securities and,
therefore, does not require the consent of such Holders.
ARTICLE VII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
The Guarantor covenants and agrees to pay to the Capital Securities
Guarantee Trustee from time to time, and the Capital Securities Guarantee
Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Guarantor and the Capital Securities Guarantee Trustee
(which agreement shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Guarantor will pay or
reimburse the Capital Securities Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Capital
Securities Guarantee Trustee in accordance with any of the provisions of this
Capital Securities Guarantee (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Guarantor also covenants to indemnify the
Capital Securities Guarantee Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the
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Capital Securities Guarantee Trustee) incurred without negligence or bad faith
on the part of the Capital Securities Guarantee Trustee and arising out of or
in connection with the acceptance or administration of this guarantee,
including the costs and expenses of defending itself against any claim of
liability in the premises. The obligations of the Guarantor under this Article
VIII to compensate and indemnify the Capital Securities Guarantee Trustee and
to pay or reimburse the Capital Securities Guarantee Trustee for expenses,
disbursements and advances shall be secured by a lien prior to that of the
Capital Securities upon all property and funds held or collected by the Capital
Securities Guarantee Trustee, except funds held in trust for the benefit of the
holders of particular Capital Securities.
The provisions of this Article shall survive the termination of this
Capital Securities Guarantee or the earlier resignation or removal of the
Capital Securities Guarantee Trustee.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01 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
Capital Securities 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 Capital Securities 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, 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 might properly be paid.
SECTION 9.02 Indemnification
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 bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any
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claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in this
Section 9.02 shall survive the termination of this Capital Securities
Guarantee.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Successors and Assigns
All guarantees and agreements contained in this Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding.
SECTION 10.02 Amendments
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Capital Securities Guarantee may only be amended with the prior
approval of the Holders of a Majority in liquidation amount of the Capital
Securities. The provisions of the Declaration with respect to consents to
amendments thereof (whether at a meeting or otherwise) shall apply to the
giving of such approval.
SECTION 10.03 Notices
All notices provided for in this Capital Securities 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 Issuer, in care of the Administrative Trustees
at the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders and the Capital Securities Guarantee
Trustee):
K N Capital Trust I
c/o K N Energy, Inc.
000 Xxx Xxxxxx Xxxxxx
P.O. Box 281304
Lakewood, Colorado 80228-8304
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
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(b) if given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or such
other address as the Capital Securities Guarantee Trustee may give notice of to
the Holders and the Issuer):
Wilmington Trust Company
0000 X. Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0001
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
(c) 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 and the Capital Securities Guarantee Trustee):
K N Energy, Inc.
000 Xxx Xxxxxx Xxxxxx
P.O. Box 281304
Lakewood, Colorado 80228-8304
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
(d) if given to any Holder, 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 10.04 Benefit
This Capital Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.01(a), is not separately transferable from
the Capital Securities.
SECTION 10.05 Governing Law
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and year
first above written.
K N ENERGY, INC., as Guarantor
By:
---------------------------------------
Name: X. Xxxxx Xxxxxxxxx
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY, as Capital
Securities Guarantee Trustee
By:
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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