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EXHIBIT 4.20
GUARANTEE AGREEMENT
BETWEEN
XXXXX XXXXXXX NATURAL GAS CORP., as Guarantor
AND
WILMINGTON TRUST COMPANY, as Guarantee Trustee
RELATING TO THE PREFERRED SECURITIES OF XXXXX XXXXXXX NATURAL GAS TRUST [ ]
--
Dated as of [ , ]
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CROSS REFERENCE TABLE*
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
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310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(c), 2.8
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.5, 3.2
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.6, 5.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
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* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2 TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . 6
Section 2.0. Trust Indenture Act; Application . . . . . . . . . 6
Section 2.1. List of Holders. . . . . . . . . . . . . . . . . . 6
Section 2.2. Reports by the Guarantee Trustee . . . . . . . . . 7
Section 2.3. Periodic Reports to Guarantee Trustee. . . . . . . 7
Section 2.4. Evidence of Compliance with Conditions Precedent . 7
Section 2.5. Events of Default; Waiver. . . . . . . . . . . . . 7
Section 2.6. Event of Default; Notice . . . . . . . . . . . . . 8
Section 2.7. Conflicting Interests. . . . . . . . . . . . . . . 8
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE . . . . 8
Section 3.1. Powers and Duties of the Guarantee Trustee . . . . 8
Section 3.2. Certain Rights of Guarantee Trustee. . . . . . . 10
Section 3.3. Indemnity. . . . . . . . . . . . . . . . . . . . 12
ARTICLE 4 GUARANTEE TRUSTEE. . . . . . . . . . . . . . . . . . . . 12
Section 4.1. Guarantee Trustee; Eligibility . . . . . . . . . 12
Section 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee. . . . . . . . . . . . . . . . 13
ARTICLE 5 GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.1. Guarantee. . . . . . . . . . . . . . . . . . . . 13
Section 5.2. Waiver of Notice and Demand. . . . . . . . . . . 13
Section 5.3. Obligations Not Affected . . . . . . . . . . . . 14
Section 5.4. Rights of Holders. . . . . . . . . . . . . . . . 14
Section 5.5. Guarantee of Payment . . . . . . . . . . . . . . 15
Section 5.6. Subrogation. . . . . . . . . . . . . . . . . . . 15
Section 5.7. Independent Obligations. . . . . . . . . . . . . 15
ARTICLE 6 COVENANTS; SUBORDINATION . . . . . . . . . . . . . . . . 15
Section 6.1. Certain Covenants of the Guarantor. . . . . . . 15
Section 6.2. Subordination . . . . . . . . . . . . . . . . . 17
ARTICLE 7 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . 17
Section 7.1. Termination. . . . . . . . . . . . . . . . . . . 17
ARTICLE 8 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . 17
Section 8.1. Successors and Assigns . . . . . . . . . . . . . 17
Section 8.2. Amendments . . . . . . . . . . . . . . . . . . . 18
Section 8.3. Notices. . . . . . . . . . . . . . . . . . . . . 18
Section 8.4. Benefit. . . . . . . . . . . . . . . . . . . . . 19
Section 8.5. Interpretation . . . . . . . . . . . . . . . . . 19
Section 8.6. Governing Law. . . . . . . . . . . . . . . . . . 19
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of [ , ],, is executed and
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delivered by Xxxxx Xxxxxxx Natural Gas Corp., an Oklahoma corporation (the
"Guarantor"), and Wilmington Trust Company, a Delaware banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Xxxxx Xxxxxxx Natural Gas Trust [ ], a Delaware statutory business trust (the
--
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration of Trust"), dated as of [ , ], among the Trustees
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named therein, the Guarantor, as Depositor, and the Holders from time to time
of undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing [ ] of its [ ]% Preferred Securities (liquidation
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preference $[ ] per preferred security) (the "Preferred Securities")
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representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Declaration of Trust;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Declaration of Trust) of the Guarantor which will be
deposited with Wilmington Trust Company, as Property Trustee under the
Declaration of Trust, as trust assets;
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement
for the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Declaration of Trust as
in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct common control with
such specified Person, provided, however, that an Affiliate of the Guarantor
shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
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correlative to the foregoing.
"Common Securities" means the securities representing common beneficial
interests in the assets of the Issuer.
"Common Stock" shall mean the common stock, par value $.01 per share, of
the Guarantor.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, no
Event of Default shall be deemed to have occurred under this Guarantee
Agreement unless and until the Guarantor shall have received written notice of
default and shall not have cured such default within 60 days after receipt of
such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent
not paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration of Trust) required to be paid on
the Preferred Securities, to the extent the Issuer shall have funds on hand
available therefor at such time, (ii) the redemption price set forth in the
Declaration of Trust, including premium, if any, all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer to the extent
the Issuer shall have funds on hand available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the liquidation preference of $[ ] per Preferred Security
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plus accrued and unpaid Distributions on the Preferred Securities to the date
of payment to the extent the Issuer shall have funds on hand available to make
such payment and (b) the amount of assets of the Issuer remaining available
for distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Indenture dated as of [ , ], between
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the Guarantor and [ ], as trustee, as the same may be
-----------------------
supplemented and amended from time to time.
"List of Holders" has the meaning specified in Section 2.2 (a).
"Majority in Liquidation Preference of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all
the outstanding Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a certificate
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signed by (i) the Chairman, Chief Executive Officer, President or a Vice
President, and by (ii) the Treasurer, an Assistant Treasurer, the Controller,
the Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee
Agreement 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 brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Executive Vice President, Senior Vice President, any First Vice President, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any other officer of the Corporate Trust Services
Division of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers, in each case with
direct responsibility for administration of this Guarantee Agreement, 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.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.0. TRUST INDENTURE ACT; APPLICATION
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
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SECTION 2.1. LIST OF HOLDERS
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (unless the Guarantee Trustee is acting as
Securities Registrar with respect to the Debentures under the
Indenture) (i) semi-annually, on or before [ ] and
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[ ] of each year, a list, in such form as the Guarantee
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Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior
to the delivery thereof, and (ii) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders as
of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the
possession or control of the Guarantor and is not identical to a
previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee. Notwithstanding the foregoing,
the Guarantor shall not be obligated to provide such List of Holders
at any time the Preferred Securities are represented by one or more
Global Certificates (as defined in the Indenture). 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
Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.2. REPORTS BY THE GUARANTEE TRUSTEE
Within 60 days after May 15 of each calendar year, the Guarantee Trustee
shall provide to the Holders 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 shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.3. PERIODIC REPORTS TO GUARANTEE TRUSTEE
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act 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 2.4. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement 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 2.5. EVENTS OF DEFAULT; WAIVER
The Holders of a Majority in Liquidation Preference of the Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
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extend to any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 2.6. 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, notices of all Events of Default known to the
Guarantee Trustee, unless such defaults have been cured before the
giving of such notice, provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Declaration of Trust shall have obtained
written notice, of such Event of Default.
SECTION 2.7. CONFLICTING INTERESTS
The Declaration of Trust and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee
shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment
hereunder, 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 the Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6) and is
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actually known to the Responsible Officer of the Guarantee Trustee,
the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of
care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that
may have occurred;
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the
express provisions of this Guarantee Agreement,
and the Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in
this Guarantee Agreement; 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
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof or of the Trust Indenture Act are
specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine
whether or not they conform to the requirements
of this Guarantee Agreement;
(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 Majority in Liquidation Preference of the
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement 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
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of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate
indemnity 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 rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, proxy, 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 Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the
Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith
on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or opinion of such legal counsel with respect
to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in
accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of
its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this
Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the
Guarantee Trustee such adequate security and indemnity as
would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement and
use the same degree of care and skill in the exercise
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thereof as a prudent person would exercise or use under
the circumstances in the conduct of his or her own
affairs.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys or any
Affiliate, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by
it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
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 Preference 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 acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal,
or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such
act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty to act in
accordance with such power and authority.
SECTION 3.3. INDEMNITY
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of
or in connection with the acceptance or administration of this Guarantee
Agreement, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The Guarantee Trustee will not claim
or exact any lien or charge on any Guarantee Payment as a result of any amount
due to it under this Guarantee Agreement.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY
(a) There shall at all times be a Guarantee Trustee which shall:
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(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of
the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, 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 4.1(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out 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. The Declaration of Trust and the Indenture shall not
be deemed to constitute conflicting interests of the Guarantee
Trustee.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE
(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 until a Successor
Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument
in writing executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor
Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE 5
GUARANTEE
SECTION 5.1. GUARANTEE
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The Guarantor irrevocably and unconditionally agrees, subject to Section
6.2, to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer
may have or assert other than the defense of payment. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, 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 Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the 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 Preferred
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 (other than an extension of time for
payment of Distributions that results from the extension of any
interest payment period on the Debentures as may be provided under
the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or
the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred
Securities;
(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
Preferred Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
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There shall be no obligation of the Holders or the Guarantee Trustee to
give notice to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.4. RIGHTS OF HOLDERS
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
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Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Preference 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 Agreement or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; (iv) any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Guarantee Trustee,
the Issuer or any other Person; and (v) if an Event of Default with respect to
the Debentures constituting the failure to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable has
occurred and is continuing, then any Holder shall have the right, which is
absolute and unconditional, to proceed directly against the Guarantor to
obtain Guarantee Payments without first waiting to determine if the Guarantee
Trustee has enforced this Guarantee Agreement or instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Debentures to Holders as provided
in the Declaration of Trust.
SECTION 5.6. SUBROGATION
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts are due and unpaid under this Guarantee
Agreement. 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 5.7. INDEPENDENT OBLIGATIONS
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities and
that the Guarantor shall be liable as principal and debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
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ARTICLE 6
COVENANTS; SUBORDINATION
SECTION 6.1. CERTAIN COVENANTS OF THE GUARANTOR
(a) Guarantor covenants and agrees that if and so long as (i) the Issuer
is the holder of all the Debentures, (ii) a Tax Event (as defined in
the Declaration of Trust) in respect of the Issuer has occurred and
is continuing and (iii) the Guarantor has elected, and has not
revoked such election, to pay Additional Sums (as defined in the
Declaration of Trust) in respect of the Preferred Securities and
Common Securities, the Guarantor will pay to the Issuer such
Additional Sums.
(b) So long as any Preferred Securities remain outstanding, the
Guarantor will not declare or pay dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with
respect to, any of its capital stock (other than (a) dividends or
distributions in shares of, or options, warrants, rights to
subscribe for or purchase shares of, common 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) as a result of a
reclassification of the Guarantor's capital stock or the exchange or
the conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock,
(d) the payment of accrued dividends and 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 (e) purchases of the
Guarantor's common stock related to the issuance of the Guarantor's
common stock or rights under any of the Guarantor's benefit plans
for its directors, officers or employees, any dividend reinvestment
plans or stock purchase plans of the Guarantor, or any of the
benefit plans of any of the Guarantor's Affiliates, for such
Affiliate's directors, officers or employees) or make any guarantee
payment with respect thereto, if at such time (i) the Guarantor
be in default with respect to its Guarantee Payments or other
payment obligations hereunder, (ii) there shall have occurred any
event of which the Guarantor has actual knowledge that (A) with the
giving of notice or lapse of time, or both, would constitute an
"Event of Default" under the Indenture with respect to the
Debentures and (B) in respect of which the Guarantor shall not have
taken reasonable steps to cure or (iii) the Guarantor shall have
given notice of its election of an extension period (as provided in
the Indenture) and such period, or any extension thereof, is
continuing.
(c) The Guarantor covenants and agrees (i) to maintain directly or
indirectly 100% ownership of the Common Securities, provided that
certain successors which are permitted by the Indenture may succeed
to the Guarantor's ownership of the Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate the Issuer, except (a)
in connection with a distribution of the Debentures to the holders
of the Preferred Securities in liquidation of the Issuer or (b) in
connection with certain mergers, consolidations or amalgamations
permitted by the Declaration of Trust, (iii) to use its reasonable
efforts, consistent with the terms and provisions of the Declaration
of Trust, to cause the Issuer to remain classified as a grantor
trust for United States Federal income tax purposes, [(iv) for so
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long as Preferred Securities are outstanding, not to convert
Debentures except pursuant to a notice of conversion delivered to
the Conversion Agent (as defined in the Declaration of Trust) by a
Holder, (v) to maintain the reservation for issuance of the number
of shares of Common Stock that would be required from time to time
upon the conversion of all the Debentures then outstanding, (vi) to
deliver shares of Common Stock upon an election by the Holders to
convert such Preferred Securities into Common Stock] and (vii) to
honor all obligations relating to [the conversion] or exchange of
the Preferred Securities into or for [Common Stock or] Debentures.
SECTION 6.2. SUBORDINATION
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, including the Debentures, except those
made pari passu or subordinate by their terms, and (ii) senior to all capital
stock (other than the most senior preferred stock issued, from time to time,
if any, by the Guarantor, which preferred stock will rank pari passu with this
Guarantee Agreement) now or hereafter issued by the Guarantor and to any
guarantee now or hereafter entered into by the Guarantor in respect of any of
its capital stock (other than the most senior preferred stock issued, from
time to time, if any, by the Guarantor). The Guarantor's obligations under
this Guarantee Agreement will rank pari passu with respect to obligations
under other guarantee agreements which it may enter into from time to time to
the extent that (i) such agreements shall be entered into in substantially the
form hereof and provide for comparable guarantees by the Guarantor of payment
on preferred securities issued by other trusts, partnerships or other entities
affiliated with the Guarantor that are financing vehicles of the Guarantor and
(ii) the debentures or other evidences of indebtedness of the Guarantor
relating to such preferred securities are junior subordinated, unsecured
indebtedness of the Guarantor.
ARTICLE 7
TERMINATION
SECTION 7.1. TERMINATION
This Guarantee Agreement shall terminate and be of no further force and
effect upon the earliest of (i) full payment of the Redemption Price of all
Preferred Securities, (ii) the distribution of Debentures to the Holders in
exchange for all of the Preferred Securities, (iii) full payment of the
amounts payable in accordance with the Declaration of Trust upon liquidation
of the Issuer [or (iv) the distribution, if any, of Common Stock to the
holders of the Preferred Securities in respect of the conversion of all such
holders' Preferred Securities into Common Stock]. Notwithstanding the
foregoing, this Guarantee Agreement 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 with respect to Preferred Securities or this Guarantee
Agreement.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1. SUCCESSORS AND ASSIGNS
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
17
or sale involving the Guarantor that is permitted under Article 8 of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 8.2. AMENDMENTS
Except with respect to any changes which do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with
the prior approval of the Holders of not less than a Majority in Liquidation
Preference of the Securities. The provisions of Article 6 of the Declaration
of Trust concerning meetings of the Holders shall apply to the giving of such
approval. The Guarantor shall furnish the Guarantee Trustee with an Officers'
Certificate and an Opinion of Counsel to the effect that any amendment of this
Agreement is authorized and permitted.
SECTION 8.3. NOTICES
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Xxxxx Xxxxxxx Natural Gas Corp.
00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Secretary
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or
such other address as the Guarantee Trustee on behalf of the Issuer
may give notice of to the Holders:
Xxxxx Xxxxxxx Natural Gas Trust [ ]
--
00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Secretary
with a copy to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Phone No.: [ ]
-------------
Facsimile No.: [ ]
--------------
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
18
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. BENEFIT
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Preferred Securities.
SECTION 8.5. INTERPRETATION
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them
in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.6. GOVERNING LAW
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
XXXXX XXXXXXX NATURAL GAS CORP.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
WILMINGTON TRUST COMPANY
as Guarantee Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
