FORM OF GUARANTEE AGREEMENT
EXHIBIT 4.G.
FORM OF GUARANTEE AGREEMENT
BETWEEN
GREAT PLAINS ENERGY INCORPORATED
AS GUARANTOR,
AND
----------------------------
AS GUARANTEE TRUSTEE,
DATED AS OF __________________
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TABLE OF CONTENTS
Page
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ARTICLE ONE
Definitions
SECTION 101 Definitions 1
ARTICLE TWO
Trust Indenture Act
SECTION 201 Trust Indenture Act; Application 5
SECTION 202 List of Holders 5
SECTION 203 Reports by the Guarantee Trustee 5
SECTION 204 Periodic Reports to the Guarantee Trustee 5
SECTION 205 Evidence of Compliance with Conditions 6
Precedent
SECTION 206 Events of Default; Waiver 6
SECTION 207 Event of Default; Notice 6
SECTION 208 Conflicting Interests 6
ARTICLE THREE
Rights and Obligations of the Guarantee Trustee
SECTION 301 Certain Duties and Responsibilities 6
SECTION 302 Certain Rights of Guarantee Trustee 8
SECTION 303 Compensation; Indemnity 9
ARTICLE FOUR
Guarantee Trustee
SECTION 401 Eligibility 9
SECTION 402 Appointment, Removal, and Resignation of the 10
Guarantee Trustee
SECTION 403 Compensation; Indemnity 12
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ARTICLE FIVE
Guarantee
SECTION 501 Guarantee 12
SECTION 502 Waiver of Notice and Demand 12
SECTION 503 Obligations Not Affected 12
SECTION 504 Rights of Holders 13
SECTION 505 Guarantee of Payment 14
SECTION 506 Subrogation 14
SECTION 507 Independent Obligations 14
ARTICLE SIX
Covenants [and Subordination]
SECTION 601 Subordination 14
SECTION 602 Pari Passu Guarantees 14
SECTION 603 Consolidation, Merger, Sale, Transfer, or 15
Conveyance
ARTICLE SEVEN
Termination
SECTION 701 Termination 15
ARTICLE EIGHT
Miscellaneous
SECTION 801 Successors and Assigns 15
SECTION 802 Amendments 16
SECTION 803 Notices 16
SECTION 804 Benefit 17
SECTION 805 Interpretation 17
SECTION 806 Governing Law 17
SECTION 807 Counterparts 17
TESTIMONIUM 18
SIGNATURES 18
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GREAT PLAINS ENERGY CAPITAL TRUST __
CERTAIN SECTIONS OF THIS GUARANTEE AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE
TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE GUARANTEE AGREEMENT
ACT SECTION ACT SECTION
---------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . . . . . 401(a)
(a)(2) . . . . . . . . . . . . . . . . 401(a)
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 208, 401(c)
Section 311(a) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . 202(a)
(b) . . . . . . . . . . . . . . . . 202(b)
(c) . . . . . . . . . . . . . . . . Not Applicable
Section 313(a) . . . . . . . . . . . . . . . . 203
(a)(4) . . . . . . . . . . . . . . . . 203
(b) . . . . . . . . . . . . . . . . 203
(c) . . . . . . . . . . . . . . . . 203
(d) . . . . . . . . . . . . . . . . 203
Section 314(a) . . . . . . . . . . . . . . . . 204
(b) . . . . . . . . . . . . . . . . 204
(c)(1) . . . . . . . . . . . . . . . . 205
(c)(2) . . . . . . . . . . . . . . . . 205
(c)(3) . . . . . . . . . . . . . . . . 205
(e) . . . . . . . . . . . . . . . . 101, 205
Section 315(a) . . . . . . . . . . . . . . . . 301(d), 302
(b) . . . . . . . . . . . . . . . . 207
(c) . . . . . . . . . . . . . . . . 301(c)
(d) . . . . . . . . . . . . . . . . 301(d)
(e) . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . 101, 206, 504
(a)(1)(A) . . . . . . . . . . . . . . . . 504
(a)(1)(B) . . . . . . . . . . . . . . . . 504
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 503
(c) . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(17) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
Section 318(a) . . . . . . . . . . . . . . . . 201
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Guarantee Agreement.
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________________,
20__ is executed and delivered by GREAT PLAINS ENERGY
INCORPORATED, a Missouri corporation (the "Guarantor") having its
principal office at 0000 Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000-
2124, and _______________________, a New York banking
corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the holders (as defined herein) from time to time of
the Trust Preferred Securities (as defined herein) of GREAT
PLAINS ENERGY CAPITAL TRUST ___, a Delaware statutory business
trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of _____________, 20__ among
GREAT PLAINS ENERGY INCORPORATED, as Depositor, ______________,
as Property Trustee (the "Property Trustee"), __________________,
as Delaware Trustee (the "Delaware Trustee") (collectively, the
"Trustees"), the Administrators named therein and the Holders
from time to time of preferred undivided beneficial ownership
interests in the assets of the Trust, the Trust is issuing up to
$____________ aggregate Liquidation Amount (as defined herein) of
its ______% Trust Preferred Securities, Liquidation Amount $_____
per Trust Preferred Security (the "Trust Preferred Securities"),
representing preferred undivided beneficial ownership interests
in the assets of the Trust and having the terms set forth in the
Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by
the Trust and the proceeds thereof, together with the proceeds
from the issuance by the Trust of the Trust Common Securities (as
defined herein), will be used to purchase the _______%
[Subordinated] Deferrable Interest Debentures Series __ due
_____________ (the "[Subordinated] Debentures") of the Guarantor
which will be deposited with the Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay
to the Holders of the Trust Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of the
Trust Preferred Securities by each Holder, which purchase the
Guarantor hereby acknowledges shall benefit the Guarantor, and
intending to be legally bound hereby, the Guarantor executes and
delivers this Guarantee Agreement for the benefit of the Holders
from time to time of the Trust Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 101. DEFINITIONS.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the
following meanings. Capitalized terms used but not otherwise
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defined herein shall have the meanings assigned to such terms in
the Trust Agreement 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 or indirect common control with such specified Person. For
the purposes of this definition, "CONTROL" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"DISTRIBUTIONS" means preferential cumulative cash
distributions accumulating from ________, 20__ and payable
quarterly in arrears on _________, ________, ________ and
_________ of each year, commencing ________, 20__, at an annual
rate of ____% of the Liquidation Amount.
"EVENT OF DEFAULT" means (i) a default by the Guarantor in
any of its payment obligations under this Guarantee Agreement, or
(ii) a default by the Guarantor in any other obligation hereunder
that remains unremedied for 30 days.
"GUARANTEE AGREEMENT" means this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"GUARANTEE PAYMENTS" means the following payments or
distributions, without duplication, with respect to the Trust
Preferred Securities, to the extent not paid or made by or on
behalf of the Trust: (i) any accumulated and unpaid Distributions
(as defined in the Trust Agreement) required to be paid on the
Trust Preferred Securities, to the extent the Trust shall have
funds on hand available therefor at such time, (ii) the
Redemption Price, with respect to the Trust Preferred Securities
called for redemption by the Trust to the extent that the Trust
shall have funds on hand available therefor at such time, and
(iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Trust, unless the [Subordinated] Debentures
are distributed to the Holders, the lesser of (a) the aggregate
of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment to the extent the Trust
shall have funds on hand available to make such payment at such
time and (b) the amount of assets of the Trust remaining
available for distribution to Holders on liquidation of the Trust
(in either case, the "Liquidation Distribution").
"GUARANTEE TRUSTEE" means ____________________, 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.
"GUARANTOR" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"HOLDER" means any holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities;
provided, however, that, in determining whether the holders of
the requisite percentage of Trust 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.
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"INDENTURE" means the Indenture (For Subordinated Debt
Securities) dated as of ______________, 20__ between Great Plains
Energy Incorporated and ______________, as trustee, as may be
modified, amended or supplemented from time to time.
"LIKE AMOUNT" means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
equal to that portion of the principal amount of [Subordinated]
Debentures to be contemporaneously redeemed in accordance with
the Indenture, allocated to the Trust Common Securities and to
the Trust Preferred Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a
distribution of [Subordinated] Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the
Trust, [Subordinated] Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the Holder
to whom such [Subordinated] Debentures are distributed.
"LIQUIDATION AMOUNT" means the stated amount of $_____ per
Trust Preferred Security.
"MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST PREFERRED
SECURITIES" means, except as provided by the Trust Indenture Act,
Trust Preferred Securities representing more than 50% of the
aggregate Liquidation Amount of all then outstanding Trust
Preferred Securities issued by the Trust.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, President, any Vice President, the
Treasurer or any other duly authorized officer of the Guarantor,
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 (other than pursuant to
Section 204) shall include:
(a) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person 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
Person, 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.
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"REDEMPTION DATE" means, with respect to any Trust Preferred
Security to be redeemed, the date fixed for such redemption by or
pursuant to the Trust Agreement; provided that each
[Subordinated] Debenture Redemption Date and the stated maturity
of the [Subordinated] Debentures shall be a Redemption Date for a
Like Amount of Trust Preferred Securities.
"REDEMPTION PRICE" shall have the meaning specified in the
Trust Agreement.
"RESPONSIBLE OFFICER" means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust
Office, including any managing director, vice president,
assistant vice president, assistant treasurer, assistant
secretary, Senior Trust Officer, Trust Officer or any other
officer of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated
officers and having direct responsibility for the administration
of this Guarantee Agreement, and also, with respect to a
particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity
with the particular subject.
"SENIOR INDEBTEDNESS" shall have the meaning specified in
the Indenture.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee
under Section 401.
"TRUST" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"TRUST AGREEMENT" means the Amended and Restated Trust
Agreement, dated ___________, 20__ entered among Great Plains
Energy Incorporated, as Depositor, _________________, as Delaware
Trustee, ____________________, as Property Trustee, and the
Administrators named therein.
"TRUST COMMON SECURITIES" means the securities representing
common undivided beneficial interests in the assets of the Trust.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
as in force and effect as of the date of execution of this
Guarantee Agreement; provided, however, that in the event the
Trust Indenture Act of 1939 is succeeded by another statute or is
amended after such date, "Trust Indenture Act" shall mean such
successor statute or the Trust Indenture Act of 1939, as so
amended, to the extent such successor statute or amendment is
applicable to this Guarantee Agreement or to the actions of the
Guarantor or the Property Trustee under or pursuant to this
Guarantee Agreement.
"TRUST PREFERRED SECURITIES" shall have the meaning
specified in the first recital of this Guarantee Agreement.
"TRUST SECURITIES" means the Trust Common Securities and the
Trust Preferred Securities.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 201. TRUST INDENTURE ACT; APPLICATION. This
Guarantee Agreement is intended to be in conformity with the
provisions of the Trust Indenture Act that would be required to
be part of this Guarantee Agreement were this Guarantee Agreement
to be qualified under the Trust Indenture Act and shall, to the
extent applicable, and unless otherwise provided herein, be
governed by such provisions. 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. If any provision of this Guarantee Agreement modifies or
excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to
apply to this Guarantee Agreement as so modified or excluded, as
the case may be.
SECTION 202. LIST OF HOLDERS.
(a) The Guarantor will furnish or cause to be furnished to
the Guarantee Trustee a list of holders at the following times:
(i) semiannually, not more than 15 days after _________
and ____________ in each year, a list, in such form as
the Guarantee Trustee may reasonably require, of the
names and addresses of the Holders as of such ________ or
_________, as applicable; 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 similar form
and content as of a date not more than 15 days prior to
the time such list is furnished.
(b) The Guarantee Trustee shall comply with the
requirements of Section 312(b) of the Trust Indenture Act.
SECTION 203. REPORTS BY THE GUARANTEE TRUSTEE. Not later
than 60 days after ___________ of each year, commencing
___________, 20__, the Guarantee Trustee shall provide to the
Holders such reports, if any, as are required by Section 313(a)
of the Trust Indenture Act 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 204. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, 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(a)(4) of the Trust Indenture
Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
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SECTION 205. 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 206. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities
may, 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 extend to any
subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 207. EVENT OF DEFAULT; NOTICE. The Guarantee
Trustee shall give notice to the Holders of any default hereunder
of which it has knowledge (within the meaning of Section 302(h)
hereof) in the manner and to the extent required to do so by the
Trust Indenture Act, unless such default shall have been cured or
waived. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time, or both,
would become, an Event of Default.
SECTION 208. CONFLICTING INTERESTS. The Trust Agreement,
relating to the Trust, and the Guarantee Agreement 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 III
RIGHTS AND OBLIGATIONS OF THE GUARANTEE TRUSTEE
SECTION 301. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Guarantee Trustee shall have and be subject to all
the duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Guarantee
Agreement against the Guarantee Trustee. For purposes of Sections
315(a) and 315(c) of the Trust Indenture Act, the term
"default" is hereby defined as an Event of Default which has
occurred and is continuing.
(b) 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 504(iv)
or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee hereunder. The right, title and
interest of the Guarantee Trustee, as such, hereunder 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.
(c) The Guarantee Trustee, prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of
Default that may have occurred, undertakes to perform such
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duties and only such duties as are specifically set forth in this
Guarantee Agreement. In case an Event of Default of which a
Responsible Officer of the Guarantee Trustee has actual knowledge
has occurred (which has not been cured or waived), 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 their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person's
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 prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of
Default which may have occurred
(i) 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 no implied covenants or
obligations shall be read into this Guarantee Agreement
against the Guarantee Trustee; and
(ii) 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 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.
(e) The Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or
Officers of the Guarantee Trustee, unless it shall be proven that
the Guarantee Trustee was negligent in ascertaining the pertinent
facts.
(f) 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 pursuant to
Section 504(iii), 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.
(g) No provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity, satisfactory to
the Guarantee Trustee in its reasonable judgment, against such
risk or liability is not reasonably assured to it.
(h) Notwithstanding anything contained in this Guarantee
Agreement to the contrary, the duties and responsibilities of the
Guarantee Trustee under this Guarantee Agreement shall be subject
to the protections, exculpations and limitations on liability
afforded to the Guarantee Trustee under the provisions of the
Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
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(i) Whether or not therein expressly so provided, every
provision of this Guarantee Agreement relating to the conduct or
affecting the liability of or affording protection to the
Guarantee Trustee shall be subject to the provisions of this
Section.
SECTION 302. CERTAIN RIGHTS OF GUARANTEE TRUSTEE. Subject to
the provisions of Section 301 and to the applicable provisions of
the Trust Indenture Act:
(a) the Guarantee Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Guarantor mentioned
herein shall be sufficiently evidenced by an Officer's
Certificate, or as otherwise expressly provided herein, and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's
Certificate,
(d) the Guarantee Trustee may consult with counsel and the
advice or written 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 reliance thereon;
(e) 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
pursuant to this Guarantee Agreement, unless such Holder shall
have offered to the Guarantee Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) 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, and, if the Guarantee Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Guarantor,
personally or by agent or attorney;
(g) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Guarantee Trustee shall not be charged with
knowledge of any default or Event of Default unless either (1) a
Responsible Officer of the Guarantee Trustee shall have actual
knowledge of the default or Event of Default or (2) written
notice of such default or Event of
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Default (which shall state that such notice is a "Notice of
Default" or a "Notice of an Event of Default" hereunder, as the
case may be) shall have been given to the Guarantee Trustee by
the Guarantor, any other obligor on Trust Preferred Securities or
by any Holder of Trust Preferred Securities.
SECTION 303. COMPENSATION; INDEMNITY. The Guarantor shall
(a) pay to the Guarantee Trustee from time to time
reasonable compensation for all services rendered by the
Guarantee Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Guarantee Trustee upon request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Guarantee Trustee in accordance with any provision of this
Guarantee Agreement, including the costs of collection (including
the reasonable compensation and the expenses and disbursements of
its agents and counsel), except to the extent that any such
expense, disbursement or advance may be attributable to its
negligence, willful misconduct or bad faith; and
(c) indemnify and hold harmless the Guarantee Trustee from
and against any and all losses, demands, claims, liabilities,
causes of action or expenses (including reasonable attorney's
fees and expenses) incurred by it arising out of or in connection
with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder (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), except to the extent
any such loss, demand, claim, liability, cause of action or
expense may be attributable to its negligence, willful
misconduct or bad faith, and assume the defense of Guarantee
Trustee with counsel acceptable to the Guarantee Trustee, unless
the Guarantee Trustee shall have been advised by counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Guarantor.
The provisions of this Section shall survive termination of this
Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 401. ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor;
(ii) be a corporation
(1) organized and doing business under the laws of
the United States, any State or Territory thereof or
the District of Columbia, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or
State authority, or
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(2) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees, and, in either case, qualified and eligible
under this Article IV and the Trust Indenture Act. If
such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of such supervising or examining authority, then for
the purposes of this Section, 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 401(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 402.
(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, subject to the penultimate
paragraph thereof.
SECTION 402. APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE.
(a) No resignation or removal of the Guarantee Trustee and
no appointment of a Successor Guarantee Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the Successor Guarantee Trustee by written
instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a
Guarantee Trustee may resign at any time by giving written notice
thereof to the Guarantor and the Holders. If the instrument of
acceptance by the Successor Guarantee Trustee shall not have been
delivered to the Guarantee Trustee within 60 days after the
giving of such notice of resignation, the Guarantee Trustee
may petition, at the expense of the Guarantor, any court of
competent jurisdiction for the appointment of a Successor
Guarantee Trustee.
(c) The Guarantee Trustee may be removed at any time by Act
(within the meaning of Section 608 of the Trust Agreement) of the
Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities, delivered to the Guarantee Trustee.
(d) If at any time:
(i) the Guarantee Trustee shall fail to comply with
Section 401(c) after written request therefor by the
Guarantor or by any Holder who has been a bona fide
Holder for at least six months, or
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(ii) the Guarantee Trustee shall cease to be eligible
under Section 401(a) and shall fail to resign after
written request therefor by the Guarantor or by any such
Holder, or
(iii) the Guarantee Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Guarantee Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Guarantee Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation then, in any such case, the
Guarantor may remove the Guarantee Trustee
(e) If the Guarantee Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Guarantee Trustee for any cause, the Guarantor, by a
Board Resolution, shall promptly appoint a Successor Guarantee
Trustee and shall comply withthe applicable requirements of
Section 403. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a Successor
Guarantee Trustee shall be appointed by Act of the Holders of not
less than a Majority in Liquidation Amount of the Trust Preferred
Securities delivered to the Guarantor and the retiring Guarantee
Trustee, the Successor Guarantee Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 403, become the
Successor Guarantee Trustee and supersede the Successor Guarantee
Trustee appointed by the Guarantor. If no Successor Guarantee
Trustee shall have been so appointed by the Guarantor or the
Holders and accepted appointment in the manner required by
Section 403, any Holder who has been a bona fide Holder of a
Trust Preferred Security for at least six months may, on behalf
of itself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a Successor
Guarantee Trustee.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a
Guarantee Trustee appointed by Act of the Holders of a Majority
in Liquidation Amount of the Outstanding Trust Preferred
Securities pursuant to subsection (e) of this Section, if the
Guarantor shall have delivered to the Guarantee Trustee (i) a
Board Resolution appointing a Successor Guarantee Trustee,
effective as of a date specified therein, and (ii) an instrument
of acceptance of such appointment, effective as of such date, by
such Successor Guarantee Trustee in accordance with Section
403, the Guarantee Trustee shall be deemed to have resigned as
contemplated in subsection (b) of this Section, the Successor
Guarantee Trustee shall be deemed to have been appointed by the
Guarantor pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated
inSection 403, all as of such date, and all other provisions of
this Section and Section 403 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Guarantor or, should the Guarantor fail so to act
promptly, the Successor Guarantee Trustee, at the expense of the
Guarantor, shall give notice of each resignation and each removal
of the Guarantee Trustee and each appointment of a Successor
Guarantee Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Securities Register. Each notice
shall include the name of the Successor Guarantee Trustee and the
address of its Corporate Trust Office.
SECTION 403. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
GUARANTEE TRUSTEE.
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(a) Every Successor Guarantee Trustee appointed hereunder
shall execute, acknowledge and deliver to the Guarantor and to
the retiring Guarantee Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Guarantee Trustee shall become effective and such
Successor Guarantee Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Guarantee Trustee; but, on the
request of the Guarantor or the Successor Guarantee Trustee, such
retiring Guarantee Trustee shall, upon payment of all sums owed
to it, execute and deliver an instrument transferring to such
Successor Guarantee Trustee all the rights, powers and trusts of
the retiring Guarantee Trustee and shall duly assign, transfer
and deliver to such Successor Guarantee Trustee all property and
money held by such retiring Guarantee Trustee hereunder.
(b) Upon request of any such Successor Guarantee Trustee,
the Guarantor shall execute any instruments which fully vest in
and confirm to such Successor Guarantee Trustee all such rights,
powers and trusts referred to in subsection (a) of this Section.
(c) No Successor Guarantee Trustee shall accept its
appointment unless at the time of such acceptance such Successor
Guarantee Trustee shall be qualified and eligible under this
Article.
ARTICLE V
GUARANTEE
SECTION 501. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Trust), as and when due, regardless
of any defense, right of set-off or counterclaim which the Trust
may have or assert, except 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 Trust to pay such
amounts to the Holders. The Guarantor shall give prompt written
notice to the Guarantee Trustee in the event it makes any direct
payment hereunder.
SECTION 502. 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, the Trust 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 503. 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 Trust of any express or
implied agreement, covenant, term or condition relating to the
Trust Preferred Securities to be performed or observed by the
Trust;
(b) the extension of time for the payment by the Trust 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 [Subordinated]
Debentures as so provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the
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terms of the Trust Preferred Securities or the extension of time
for the performance of any other obligation under, arising out
of, or in connection with, the Trust 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 Trust Preferred Securities, or any action on the
part of the Trust 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 Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
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 (other than payment of the underlying obligation), it
being the intent of this Section 503 that the obligations of the
Guarantor hereunder shall beabsolute and unconditional under any
and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 504. 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
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 Amount of the Trust Preferred
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
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement, provided, however, that,
subject to Section 301, the Guarantee Trustee shall have the
right to decline to follow any such direction if the Guarantee
Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Guarantee Trustee
in good faith shall, by a Responsible Officer or Officers of the
Guarantee Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of the Holders not party to such
direction, and provided further that nothing in this Guarantee
Agreement shall impair the right of the Guarantee Trustee to take
any action deemed proper by the Guarantee Trustee and which is
not inconsistent with such direction; and (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
Trust or any other Person.
SECTION 505. 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 Trust) or upon the distribution of
[Subordinated] Debentures to Holders as provided in the Trust
Agreement.
13
SECTION 506. SUBROGATION. The Guarantor shall be subrogated
to all rights (if any) of the Holders against the Trust in
respect of any amounts paid to the Holders by the Guarantor under
this Guarantee Agreement; 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 507. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of
the obligations of the Trust with respect to the Trust Preferred
Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through
(g), inclusive, of Section 503 hereof.
ARTICLE VI
COVENANTS [AND SUBORDINATION]
SECTION 601. SUBORDINATION.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior
in right of payment to all Senior Indebtedness of the Guarantor
to the extent and in the manner set forth in the Indenture with
respect to the [Subordinated] Debentures, and the provisions of
Article XV of the Indenture will apply, mutatis mutandis, to the
obligations of the Guarantor hereunder. The obligations of the
Guarantor hereunder do not constitute Senior Indebtedness of the
Guarantor.
SECTION 602. PARI PASSU GUARANTEES.
The obligations of the Guarantor under this Guarantee
Agreement shall rank pari passu with any similar guarantee
agreements issued by the Guarantor on behalf of the holders of
preferred or Trust Preferred Securities issued by any other trust
similar to the Trust and with any other security, guarantee or
other obligation that is expressly stated to rank pari passu with
the obligations of the Guarantor under this Guarantee Agreement.
14
SECTION 603. CONSOLIDATION, MERGER, SALE, TRANSFER OR
CONVEYANCE.
(a) The Guarantor shall not consolidate with or merge into
any other corporation or sell or otherwise dispose of its
properties as or substantially as an entirety to any Person
unless the Guarantor has delivered to the Guarantee Trustee an
Officers' Certificate and an opinion of counsel each stating that
such consolidation, merger, conveyance or transfer comply with
this Section 603 and the corporation formed by such consolidation
or into which the Guarantor is merged or the Person which
receives such properties pursuant to such sale, transfer or other
disposition (a) shall be a corporation organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia; and (b) shall expressly assume the
due and punctual payment of the Guarantee Payments and the
performance of every covenant of this Guarantee Agreement on the
part of the Guarantor to be performed or observed.
(b) Upon any consolidation or merger, or any sale, transfer
or other disposition of the properties of the Guarantor
substantially as an entirety in accordance with paragraph (a)
hereof, the successor corporation formed by such consolidation or
into which the Guarantor is merged or the Person to which such
sale, transfer or other disposition is made shall succeed to, and
be substituted for and may exercise every right and power of, the
Guarantor under this Guarantee Agreement with the same effect as
if such successor corporation or Person had been named as the
Guarantor herein and the Guarantor shall be released from all
obligations hereunder.
ARTICLE VII
TERMINATION
SECTION 701. TERMINATION. This Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full
payment of the Redemption Price of all Trust Preferred
Securities, (ii) the distribution of [Subordinated] Debentures to
the Holders in exchange for all of the Trust Preferred Securities
or (iii) full payment of the amounts payable in accordance with
Article IX of the Trust Agreement upon liquidation of the Trust.
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 is required to restore payment of
any sums paid under the Trust Preferred Securities or this
Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 801. 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 Trust Preferred Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article XII 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, and any purported assignment
that is not in accordance with these provisions shall be void.
15
SECTION 802. AMENDMENTS. Except with respect to any changes
that do not materially adversely affect the rights of the Holders
(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 Amount
of the Trust Preferred Securities. The provisions of Article VI
of the Trust Agreement concerning meetings or consents of the
Holders shall apply to the giving of such approval.
SECTION 803. 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 with receipt confirmed, or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address or telecopy
number set forth below or such other address or telecopy number
or to the attention of such other Person as the Guarantor may
give notice to the Guarantee Trustee and the Holders:
Great Plains Energy Incorporated
0000 Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
Facsimile No. 816.556-2992
Attention: ___________, _______________
(b) if given to the Trust, at the Trust's (and the Guarantee
Trustee's) address or telecopy number set forth below or such
other address or telecopy number or to the attention of such
other Person as the Trust or Guarantee Trustee may give notice to
the Guarantee Trustee (if given by the Trust) and the Holders:
Great Plains Energy Capital Trust ___
c/o Great Plains Energy Incorporated
0000 Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: ____________, Administrator
with a copy to:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
(c) if given to the Guarantee Trustee, to the address or
telecopy number set forth below or such other address or telecopy
number or to the attention of such other Person as the Guarantee
Trustee may give notice to the Guarantor and the Holders:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
16
(d) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder 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 804. BENEFIT. This Guarantee Agreement is solely
for the benefit of the Holders and is not separately transferable
from the Trust Preferred Securities.
SECTION 805. 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 101;
(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 806. 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 CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 807. COUNTERPARTS.
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.
17
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
GREAT PLAINS ENERGY INCORPORATED
as Guarantor
By: _______________________________
Name:
Title:
----------------------------,
as Guarantee Trustee, and not
in its individual capacity
By: _______________________________
Name:
Title:
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