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Exhibit 4(o)
Trust Preferred Securities Guarantee Agreement
Between
CMS Energy Corporation
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
July 8, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions................................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application...........................................6
SECTION 2.02 Lists of Holders...........................................................6
SECTION 2.03 Reports by the Trust Preferred Securities Guarantee
Agreement Trustee..........................................................7
SECTION 2.04 Periodic Reports to Trust Preferred Securities Guarantee
Agreement Trustee..........................................................7
SECTION 2.05 Evidence of Compliance with Conditions Precedent...........................8
SECTION 2.06 Guarantee Events of Default; Waiver........................................8
SECTION 2.07 Guarantee Event of Default; Notice.........................................8
SECTION 2.08 Conflicting Interests......................................................9
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED SECURITIES GUARANTEE
AGREEMENT TRUSTEE
SECTION 3.01 Powers and Duties of the Trust Preferred Securities Guarantee
Agreement Trustee..........................................................9
SECTION 3.02 Certain Rights of Trust Preferred Securities Guarantee
Agreement Trustee.........................................................12
SECTION 3.03 Not Responsible for Recitals or Issuance of Trust
Preferred Securities Guarantee Agreement..................................15
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ARTICLE IV
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT TRUSTEE
SECTION 4.01 Trust Preferred Securities Guarantee Agreement Trustee;
Eligibility...............................................................15
SECTION 4.02 Appointment, Removal and Resignation of Trust
Preferred Securities Guarantee Agreement Trustees.........................16
ARTICLE V
GUARANTEE
SECTION 5.01 Guarantee.................................................................17
SECTION 5.02 Waiver of Notice and Demand...............................................17
SECTION 5.03 Obligations Not Affected..................................................17
SECTION 5.04 Rights of Holders.........................................................19
SECTION 5.05 Guarantee of Payment......................................................19
SECTION 5.06 Subrogation...............................................................20
SECTION 5.07 Independent Obligations...................................................20
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01 Limitation of Transactions................................................20
SECTION 6.02 Subordination.............................................................21
ARTICLE VII
TERMINATION
SECTION 7.01 Termination...............................................................22
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ARTICLE VIII
COMPENSATION AND EXPENSES
OF TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT TRUSTEE
SECTION 8.01 Compensation and Expenses of Trust Preferred Securities
Guarantee Agreement Trustee...............................................23
ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Exculpation...............................................................24
SECTION 9.02 Indemnification...........................................................24
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Successors and Assigns....................................................25
SECTION 10.02 Amendments................................................................25
SECTION 10.03 Notices...................................................................25
SECTION 10.04 Benefit...................................................................27
SECTION 10.05 Interpretation............................................................27
SECTION 10.06 Governing Law.............................................................28
SECTION 10.07 Counterparts..............................................................28
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This Trust Preferred Securities Guarantee Agreement, dated as
of July 8, 1999, is executed and delivered by CMS Energy Corporation, a Michigan
corporation (the "Guarantor"), and The Bank of New York, a New York banking
corporation, as trustee, for the benefit of the Holders (as defined herein)
from time to time of the Trust Preferred Securities (as defined herein) of CMS
Energy Trust, a Michigan statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of July 8, 1999 among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders, from time to
time, of undivided beneficial ownership interests in the assets of the Issuer,
the Issuer is issuing up to $300,875,000 aggregate liquidation amount of its
8.625% Trust Preferred Securities, (liquidation amount $41.50 per Trust
Preferred Security) (the "Trust Preferred Securities") and up to $9,305,420.50
aggregate liquidation amount of its 8.625% Common Securities (the "Common
Securities" and together with the Trust Preferred Securities, the "Trust
Securities"), each representing beneficial ownership interests in the assets of
the Issuer and having the terms set forth in the Declaration;
WHEREAS, the Trust Securities will be issued by the Issuer and
the proceeds thereof will be used to purchase the Debentures (as defined herein)
of the Guarantor which will be deposited with The Bank of New York, as Property
Trustee under the Declaration, as trust assets;
WHEREAS, as an incentive for the Holders to purchase Trust
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, the Guarantor is executing and delivering a Guarantee
Agreement (the "Common Trust Securities Guarantee") with substantially identical
terms to this Trust Preferred Securities Guarantee Agreement, for the benefit of
the holders of the Common Securities, except that if a Guarantee Event of
Default (as defined herein) has occurred and is continuing, the rights of the
holders of the Common Securities to receive the Guarantee Payments under the
Common Trust Securities Guarantee are subordinated, to the extent and in the
manner set forth in the
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Common Trust Securities Guarantee, to the rights of Holders to receive Guarantee
Payments under this Trust Preferred Securities Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Trust Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Trust
Preferred Securities Guarantee Agreement for the benefit of the Holders from
time to time of the Trust Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used in this Trust Preferred
Securities 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 as in effect on the date
hereof unless otherwise indicated.
"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, 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
correlative to the foregoing.
"Common Securities" has the meaning specified in the recitals
to this Trust Preferred Securities Guarantee Agreement.
"Debentures" means the series of subordinated debt securities
of the Guarantor designated the 8.625% Junior Subordinated Deferrable Interest
Debentures due July 1, 2004 held by the Property Trustee (as defined in the
Declaration) of the
Issuer.
"Declaration" has the meaning specified in the recitals to
this Trust Preferred Securities Guarantee Agreement.
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"Distribution" shall have the same meaning as indicated in the
Declaration.
"Final Redemption Price" means the final redemption price of
the Trust Preferred Securities, including all accumulated and unpaid
Distributions to the date of redemption.
"Guarantee Event of Default" has the meaning specified in
Section 2.06.
"Guarantee Payments" shall mean 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 Issuer: (i)
any accumulated and unpaid Distributions (as defined in the Declaration)
required to be paid on the Trust Preferred Securities, to the extent the Issuer
shall have funds on hand legally available therefor at such time, and (ii) the
Final Redemption Price with respect to the Trust Preferred Securities
outstanding on the Maturity Date of the Debentures (as defined in the Indenture)
to the extent the Issuer shall have funds on hand legally available therefor at
such time. If a Guarantee Event of Default has occurred and is continuing, no
Guarantee Payments under the Common Trust Securities Guarantee with respect to
the Common Trust Securities or any guarantee payment under any Other Common
Trust Securities Guarantees shall be made until the Holders shall be paid in
full the Guarantee Payments to which they are entitled under this Trust
Preferred Securities Guarantee Agreement.
"Guarantor" has the meaning specified in the recital to this
Trust Preferred Securities Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Trust Preferred Securities or Normal Units that is
deemed, under the Declaration, to be a holder 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 Trust
Preferred Securities Guarantee Agreement Trustee or any Affiliate of the
Guarantor or the Trust Preferred Securities Guarantee Agreement Trustee.
"Indemnified Person" means the Trust Preferred Securities
Guarantee Agreement Trustee, any Affiliate of the Trust Preferred Securities
Guarantee Agreement Trustee, or any officers, directors, shareholders, members,
partners,
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employees, representatives, nominees, custodians or agents of the Trust
Preferred Securities Guarantee Agreement Trustee.
"Indenture" means the Junior Subordinated Indenture dated as
of June 1, 1997, among the Guarantor and The Bank of New York, as trustee, as
the same may be amended or supplemented from time to time in accordance with the
terms hereof, pursuant to which the Debentures are to be issued to the Property
Trustee.
"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 liquidation amount of all
then outstanding Trust Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two of the following: the Chairman of the Board, Vice
Chairman of the Board, Chief Executive Officer, the President or a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Preferred
Securities 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.
"Other Common Trust Securities Guarantees" shall have the same
meaning as "Other Guarantees" in the Common Trust Securities Guarantee.
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"Other Debentures" means all junior subordinated debentures
issued by the Guarantor from time to time and sold to trusts established or to
be established by the Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to securities similar to the Trust Preferred Securities
issued by other trusts to be established by the Guarantor, in each case similar
to the Issuer.
"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.
"Trust Preferred Securities Guarantee Agreement" means this
Trust Preferred Securities Guarantee Agreement, dated as of July 8, 1999,
between CMS Energy Corporation and the Trust Preferred Securities Guarantee
Agreement Trustee.
"Trust Preferred Securities" has the meaning specified in the
recitals to this Trust Preferred Securities Guarantee Agreement.
"Trust Preferred Securities Guarantee Agreement Trustee" means
The Bank of New York until a Successor Trust Preferred Securities Guarantee
Agreement Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Trust Preferred Securities Guarantee Agreement and
thereafter means each such Successor Trust Preferred Securities Guarantee
Agreement Trustee.
"Responsible Officer" means, with respect to the Trust
Preferred Securities Guarantee Agreement Trustee, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any financial services officer or any other officer of
the Corporate Trust Office of the Trust Preferred Securities Guarantee Agreement
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Senior Indebtedness" shall have the same meaning as indicated
in the Indenture.
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"Successor Trust Preferred Securities Guarantee Agreement
Trustee" means a successor Trust Preferred Securities Guarantee Agreement
Trustee possessing the qualifications to act as Trust Preferred Securities
Guarantee Agreement Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" has the meaning specified in the recitals
to this Trust Preferred Securities Guarantee Agreement.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Trust Preferred Securities Guarantee Agreement is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Trust Preferred Securities Guarantee Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust Indenture Act,
through operation of Section 318(c) thereof, such imposed duties shall control.
If any provision of this Trust Preferred Securities Guarantee Agreement modifies
or excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Preferred
Securities Guarantee Agreement as so modified or excluded, as the case may be.
SECTION 2.2 Lists of Holders.
(a) The Guarantor shall furnish or cause to be furnished to
the Trust Preferred Securities Guarantee Agreement Trustee (a) on a quarterly
basis on each regular record date for the Debentures, a list, in such form as
the Trust Preferred Securities Guarantee Agreement Trustee may reasonably
require, of the names and addresses of the Holders of the Trust Preferred
Securities ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times
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as the Trust Preferred Securities Guarantee Agreement 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 has not otherwise been received by the Trust
Preferred Securities Guarantee Agreement Trustee in its capacity as such;
provided, however, that the Guarantor shall not be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Trust Preferred Securities Guarantee
Agreement Trustee by the Guarantor. The Trust Preferred Securities Guarantee
Agreement Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Trust Preferred Securities Guarantee Agreement Trustee
shall comply with its obligations under Sections 311(a), 311(b) and Section
312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Trust Preferred Securities
Guarantee Agreement Trustee. Not later than May 15 of each year, commencing May
15, 2000, the Trust Preferred Securities Guarantee Agreement 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(a)
of the Trust Indenture Act. The Trust Preferred Securities Guarantee Agreement
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Securities
Guarantee Agreement Trustee. The Guarantor shall provide to the Trust Preferred
Securities Guarantee Agreement Trustee, the Securities and Exchange Commission
and the Holders such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act; provided, however, that such compliance
certificate shall be delivered on or before 120 days after the end of each
fiscal year of the Guarantor. Delivery of such reports, information and
documents to the Trust Preferred Securities Guarantee Agreement Trustee is for
informational purposes only and the Trust Preferred Securities Guarantee
Agreement Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its covenants
hereunder (as to which the Trust Preferred Securities Guarantee Agreement
Trustee is entitled to rely exclusively on Officers' Certificates).
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SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Trust Preferred Securities Guarantee
Agreement Trustee such evidence of compliance with conditions precedent, if any,
provided for in this Trust Preferred Securities 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 2.6 Guarantee Events of Default; Waiver. (a) An event
of default under this Trust Preferred Securities Guarantee Agreement will occur
upon the failure of the Guarantor to perform any of its payment or other
obligations hereunder (a "Guarantee Event of Default"); provided, however, that,
other than with respect to a default on any payment under this Trust Preferred
Securities Guarantee Agreement, the Guarantor shall have received notice of
default and shall not have cured such default within 90 days after receipt of
such notice.
(b) The Holders of a Majority in liquidation amount of the
Trust Preferred Securities may, by vote, on behalf of the Holders of all of the
Trust Preferred Securities, waive any past Guarantee Event of Default and its
consequences. Upon such waiver, any such Guarantee Event of Default shall cease
to exist, and any Guarantee Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Trust Preferred Securities
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice.
(a) The Trust Preferred Securities Guarantee Agreement Trustee
shall, within 90 days after the occurrence of a Guarantee Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Trust
Preferred Securities, notices of all Guarantee Events of Default known to the
Trust Preferred Securities Guarantee Agreement Trustee, unless such Guarantee
Event of Default has 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 Trust
Preferred Securities Guarantee Agreement 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
Trust Preferred Securities Guarantee Agreement Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Trust Preferred Securities.
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(b) The Trust Preferred Securities Guarantee Agreement Trustee
shall not be deemed to have knowledge of any Guarantee Event of Default unless
the Trust Preferred Securities Guarantee Agreement Trustee shall have received
written notice, or a Responsible Officer charged with the administration of this
Trust Preferred Securities Guarantee Agreement shall have obtained actual
knowledge, of such Guarantee Event of Default.
SECTION 2.8 Conflicting Interests. The Declaration and the
Indenture shall be deemed to be specifically described in this Trust Preferred
Securities Guarantee Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred
Securities Guarantee Agreement Trustee.
(a) This Trust Preferred Securities Guarantee Agreement shall
be held by the Trust Preferred Securities Guarantee Agreement Trustee for the
benefit of the Holders of the Trust Preferred Securities, and the Trust
Preferred Securities Guarantee Agreement Trustee shall not transfer this Trust
Preferred Securities Guarantee Agreement to any Person except a Holder of Trust
Preferred Securities exercising his or her rights pursuant to Section 5.04(iv)
or to a Successor Trust Preferred Securities Guarantee Agreement Trustee on
acceptance by such Successor Trust Preferred Securities Guarantee Agreement
Trustee of its appointment to act as Successor Trust Preferred Securities
Guarantee Agreement Trustee. The right, title and interest of the Trust
Preferred Securities Guarantee Agreement Trustee shall automatically vest in any
Successor Trust Preferred Securities Guarantee Agreement Trustee, upon
acceptance by such Successor Trust Preferred Securities Guarantee Agreement
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 Trust Preferred
Securities Guarantee Agreement Trustee.
(b) If a Guarantee Event of Default actually known to a
Responsible Officer has occurred and is continuing, the Trust Preferred
Securities
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Guarantee Agreement Trustee shall enforce this Trust Preferred Securities
Guarantee Agreement for the benefit of the Holders of the Trust Preferred
Securities.
(c) The Trust Preferred Securities Guarantee Agreement
Trustee, before the occurrence of any Guarantee Event of Default and after the
curing of all Guarantee Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Preferred Securities Guarantee Agreement, and no implied covenants shall
be read into this Trust Preferred Securities Guarantee Agreement against the
Trust Preferred Securities Guarantee Agreement Trustee. In case a Guarantee
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.06), and is actually known to a Responsible Officer, the Trust
Preferred Securities Guarantee Agreement Trustee shall exercise such of the
rights and powers vested in it by this Trust Preferred Securities Guarantee
Agreement, and use the same degree of care and skill in its exercise thereof,
as a prudent individual would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d) No provision of this Trust Preferred Securities Guarantee
Agreement shall be construed to relieve the Trust Preferred Securities Guarantee
Agreement 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 Guarantee Event of
Default and after the curing or waiving of all such Guarantee Events of
Default that may have occurred:
(A) the duties and obligations of the Trust
Preferred Securities Guarantee Agreement Trustee shall be
determined solely by the express provisions of this Trust
Preferred Securities Guarantee Agreement, (including pursuant
to Section 2.01) and the Trust Preferred Securities Guarantee
Agreement Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Trust Preferred Securities Guarantee
Agreement and no implied covenants or obligations shall be
read into this Trust Preferred Securities Guarantee Agreement
against the Trust Preferred Securities Guarantee Agreement
Trustee; and
(B) in the absence of bad faith on the part
of the Trust Preferred Securities Guarantee Agreement Trustee,
the Trust Preferred Securities Guarantee Agreement Trustee may
conclusively
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rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Trust Preferred Securities Guarantee
Agreement Trustee and conforming to the requirements of this
Trust Preferred Securities 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 Trust Preferred
Securities Guarantee Agreement Trustee, the Trust Preferred
Securities Guarantee Agreement Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Trust Preferred Securities
Guarantee Agreement;
(ii) the Trust Preferred Securities Guarantee
Agreement Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Trust Preferred Securities
Guarantee Agreement Trustee, unless it shall be proved that the Trust
Preferred Securities Guarantee Agreement Trustee was negligent in
ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Trust Preferred Securities Guarantee
Agreement 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
amount of the Trust Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trust Preferred Securities Guarantee Agreement Trustee, or exercising
any trust or power conferred upon the Trust Preferred Securities
Guarantee Agreement Trustee under this Trust Preferred Securities
Guarantee Agreement; and
(iv) no provision of this Trust Preferred Securities
Guarantee Agreement shall require the Trust Preferred Securities
Guarantee Agreement 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
Trust Preferred Securities Guarantee Agreement Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Trust
Preferred Securities Guarantee Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Trust Preferred Securities
Guarantee Agreement Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The Trust Preferred Securities Guarantee
Agreement Trustee may conclusively rely and shall be fully protected in
acting, or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document (whether in its original or facsimile form)
reasonably 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 Trust Preferred Securities Guarantee Agreement
shall be sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Trust
Preferred Securities Guarantee Agreement, the Trust Preferred
Securities Guarantee Agreement Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting
any action hereunder, the Trust Preferred Securities Guarantee
Agreement 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 Trust Preferred Securities Guarantee Agreement Trustee, shall
be promptly delivered by the Guarantor.
(iv) The Trust Preferred Securities Guarantee
Agreement Trustee may (at the expense of the Guarantor) 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 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 Trust Preferred
Securities Guarantee Agreement Trustee shall have the right at any time
to seek instructions concerning the administration of this Trust
Preferred Securities Guarantee Agreement from any court of competent
jurisdiction.
(v) The Trust Preferred Securities Guarantee
Agreement Trustee shall be under no obligation to exercise any of the
rights or powers
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vested in it by this Trust Preferred Securities Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have
provided to the Trust Preferred Securities Guarantee Agreement Trustee
such adequate security and indemnity as would satisfy a reasonable
person in the position of the Trust Preferred Securities Guarantee
Agreement 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 Trust Preferred Securities
Guarantee Agreement Trustee; provided that nothing contained in this
Section 3.02(a)(v) shall be taken to relieve the Trust Preferred
Securities Guarantee Agreement Trustee, upon the occurrence of a
Guarantee Event of Default, of its obligation to exercise the rights
and powers vested in it by this Trust Preferred Securities Guarantee
Agreement.
(vi) The Trust Preferred Securities Guarantee
Agreement 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 Trust Preferred Securities Guarantee
Agreement Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and if the
Trust Preferred Securities Guarantee Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Guarantor and shall incur no
liability or additional liability of any kind by reason of such inquiry
or investigation.
(vii) The Trust Preferred Securities Guarantee
Agreement 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 Trust Preferred Securities Guarantee Agreement
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 Trust
Preferred Securities Guarantee Agreement the Trust Preferred Securities
Guarantee Agreement Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Trust Preferred Securities Guarantee
Agreement Trustee (A) may request instructions from the Holders of the
Trust Preferred Securities, (B) may
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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.
(ix) The Trust Preferred Securities Guarantee
Agreement Trustee shall have no duty to see any recording, filing or
registration of any instrument (or any re-recording, refiling or
re-registration thereof).
(x) Any action taken by the Trust Preferred
Securities Guarantee Agreement Trustee or its agents hereunder shall
bind the Holders, and the signature of the Trust Preferred Securities
Guarantee Agreement Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be required
to inquire as to the authority of the Trust Preferred Securities
Guarantee Agreement Trustee to so act or as to its compliance with any
of the terms and provisions of this Trust Preferred Securities
Guarantee Agreement, both of which shall be conclusively evidenced by
the Trust Preferred Securities Guarantee Agreement Trustee's or its
agent's taking such action.
(xi) The Trust Preferred Securities Guarantee
Agreement Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Preferred Securities
Guarantee Agreement.
(b) No provision of this Trust Preferred Securities Guarantee
Agreement shall be deemed to impose any duty or obligation on the Trust
Preferred Securities Guarantee Agreement 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 Trust Preferred
Securities Guarantee Agreement 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 Trust Preferred Securities Guarantee Agreement Trustee shall be
construed to be a duty to act in accordance with such power and authority.
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust
Preferred Securities Guarantee Agreement. The recitals contained in this Trust
Preferred Securities Guarantee Agreement shall be taken as the statements of the
Guarantor, and the Trust Preferred Securities Guarantee Agreement Trustee does
not
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assume any responsibility for their correctness. The Trust Preferred Securities
Guarantee Agreement Trustee makes no representation as to the validity or
sufficiency of this Trust Preferred Securities Guarantee Agreement.
ARTICLE IV
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 4.1 Trust Preferred Securities Guarantee Agreement
Trustee; Eligibility.
(a) There shall at all times be a Trust Preferred
Securities Guarantee Agreement Trustee which shall
(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 million U.S. dollars ($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 a supervising
or examining authority, then, for the purposes of this Section
4.01(a)(ii) 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 Trust Preferred Securities Guarantee
Agreement Trustee shall cease to be eligible to so act under Section 4.01(a),
the Trust Preferred Securities Guarantee Agreement Trustee shall immediately
resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Trust Preferred Securities Guarantee Agreement
Trustee has or shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Trust Preferred Securities
Guarantee Agreement Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
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SECTION 4.2 Appointment, Removal and Resignation of Trust
Preferred Securities Guarantee Agreement Trustees.
(a) Subject to Section 4.02(b), the Trust Preferred Securities
Guarantee Agreement Trustee may be appointed or removed without cause at any
time by the Guarantor except during a Guarantee Event of Default.
(b) The Trust Preferred Securities Guarantee Agreement Trustee
shall not be removed until a Successor Trust Preferred Securities Guarantee
Agreement Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Trust Preferred Securities
Guarantee Agreement Trustee and delivered to the Guarantor.
(c) The Trust Preferred Securities Guarantee Agreement Trustee
appointed hereunder shall hold office until a Successor Trust Preferred
Securities Guarantee Agreement Trustee shall have been appointed or until its
removal or resignation. The Trust Preferred Securities Guarantee Agreement
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing executed by the Trust Preferred Securities Guarantee
Agreement Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Trust Preferred Securities Guarantee Agreement
Trustee has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Trust Preferred Securities Guarantee
Agreement Trustee and delivered to the Guarantor and the resigning Trust
Preferred Securities Guarantee Agreement Trustee.
(d) If no Successor Trust Preferred Securities Guarantee
Agreement Trustee shall have been appointed and accepted appointment as provided
in this Section 4.02 within 30 days after delivery to the Guarantor of an
instrument of resignation, the resigning Trust Preferred Securities Guarantee
Agreement Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Trust Preferred Securities
Guarantee Agreement Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Trust Preferred
Securities Guarantee Agreement Trustee.
(e) No Trust Preferred Securities Guarantee Agreement Trustee
shall be liable for the acts or omissions to act of any Successor Trust
Preferred Securities Guarantee Agreement Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee Agreement or removal or resignation of the Trust Preferred Securities
Guarantee
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Agreement Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Trust Preferred Securities Guarantee Agreement Trustee all amounts due to the
Trust Preferred Securities Guarantee Agreement Trustee accrued to the date of
such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 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
Issuer), as and when due, regardless of any defense (other than the defense of
payment) right of set-off or counterclaim which the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the Trust Preferred Securities 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 Trust
Preferred Securities Guarantee Agreement Trustee, the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected. The obligations,
covenants, agreements and duties of the Guarantor under this Trust Preferred
Securities 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 Trust 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
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payment period on the Debentures as so provided in the Indenture),
Final Redemption Price, liquidation Distribution or any other sums
payable under the 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 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 Trust Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
other wise constitute a legal or equitable discharge or defense of a
guarantor (other than payment of the underlying obligation)
(h) it being the intent of this Section 5.03 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Trust Preferred Securities Guarantee Agreement will
be deposited with the Trust Preferred Securities Guarantee Agreement Trustee to
be held for the benefit of the Holders; (ii) the Trust Preferred Securities
Guarantee Agreement Trustee has the right to enforce this Trust Preferred
Securities Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in liquidation
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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
Trust Preferred Securities Guarantee Agreement Trustee in respect of this Trust
Preferred Securities Guarantee Agreement or exercising any trust or power
conferred upon the Trust Preferred Securities Guarantee Agreement Trustee under
this Trust Preferred Securities Guarantee Agreement; provided, however, that
(subject to Section 3.01) the Trust Preferred Securities Guarantee Agreement
Trustee shall have the right to decline to follow any such direction if the
Trust Preferred Securities Guarantee Agreement Trustee shall determine that the
actions so directed would be unjustly prejudicial to the Holders not taking part
in such direction or if the Trust Preferred Securities Guarantee Agreement
Trustee, being advised by counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trust Preferred Securities
Guarantee Agreement Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee or directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so directed
would involve the Trust Preferred Securities Guarantee Agreement Trustee in
personal liability; and (iv) any Holder of Trust Preferred Securities may
institute, to the extent permissible under applicable law, a legal proceeding
directly against the Guarantor to enforce its rights under this Trust Preferred
Securities Guarantee Agreement without first instituting a legal proceeding
against the Trust Preferred Securities Guarantee Agreement Trustee, the Issuer
or any other Person. The Guarantor waives any right or remedy to require that
any action be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment. This Trust Preferred
Securities Guarantee Agreement creates a guarantee of payment and not a
guarantee of collection. This Trust Preferred Securities 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.
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 Trust Preferred Securities
Guarantee Agreement and shall have the right to waive payment by the Issuer
pursuant to Section 5.01; 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 Trust Preferred Securities
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Guarantee Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Trust Preferred Securities 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 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 Trust Preferred Securities
Guarantee Agreement notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1 Limitation of Transactions. So long as any Trust
Preferred Securities remain outstanding, the Guarantor shall not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Guarantor (including any Other Debentures) that rank pari
passu with or junior in right of payment to the Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Guarantor of any
securities of any subsidiary of the Guarantor (including Other Guarantees) if
such guarantee ranks pari passu or junior in right of payment to the Debentures
(other than in the case of clauses (i), (ii) and (iii), (a) dividends or
distributions in shares of, or options, warrants or 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) payments under the Trust
Preferred Securities Guarantee Agreement, (d) as a result of a reclassification
of the Guarantor's capital stock solely into shares of one or more classes or
series 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, (e) the purchase of fractional interests in
shares of the Guarantor's capital stock pursuant to
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the conversion or exchange provisions of such capital stock or the security
being converted or exchanged and (f) purchases of the Guarantor's common stock
in connection with the satisfaction by the Guarantor of its obligations
(including purchases related to the issuance of such common stock or rights)
under any of the Guarantor's benefit plans for its and its subsidiaries'
directors, officers or employees or any of the Guarantor's dividend reinvestment
plans), if at such time (x) a Guarantee Event of Default or an Event of Default
(as defined in the Indenture) shall have occurred and be continuing, (y) if such
Debentures are held by the Property Trustee, the Guarantor shall be in default
with respect to its payment of any obligations under this Trust Preferred
Securities Guarantee Agreement or (z) the Guarantor shall have given notice of
its election of the exercise of its right to extend the interest payment period
pursuant to Section 3.01(b)(6) of the Indenture and any such extension shall
have commenced and not yet terminated.
SECTION 6.2 Subordination. (a) The obligations of the
Guarantor under this Trust Preferred Securities Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all present and future Senior Indebtedness of the
Guarantor to the extent and in the manner that the Debentures are subordinated
to all present and future Senior Indebtedness pursuant to the Indenture, it
being understood that the terms of Article XII of the Indenture shall apply to
the obligations of the Guarantor under this Trust Preferred Securities Guarantee
Agreement as if (x) such Article XII were set forth herein in full and (y) such
obligations were substituted for the term "Securities" appearing in such Article
XII and pari passu with the Debentures and Other Debentures. The obligations of
the Guarantor hereunder do not constitute Senior Indebtedness (as defined in the
Indenture) of the Guarantor.
(b) The right of the Guarantor to participate in any
distribution of assets of any of its subsidiaries upon any such subsidiary's
liquidation or reorganization or otherwise is subject to the prior claims of
creditors of that subsidiary, except to the extent the Guarantor may itself be
recognized as a creditor of that subsidiary. Accordingly, the Guarantor's
obligations under this Trust Preferred Securities Guarantee Agreement will be
effectively subordinated to all existing and future liabilities of the
Guarantor's subsidiaries, and claimants should look only to the assets of the
Guarantor for payments thereunder. This Trust Preferred Securities Guarantee
Agreement does not limit the incurrence or issuance of other secured or
unsecured debt of the Guarantor, including Senior Indebtedness of the Guarantor,
under any indenture that the Guarantor may enter into in the future or
otherwise.
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(c) If an Event of Default has occurred and is continuing, the
rights of holders of the Common Trust Securities of the Issuer to receive
payments under the Common Trust Securities Guarantee are subordinated to the
rights of Holders of Trust Preferred Securities to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination. This Trust Preferred Securities
Guarantee Agreement shall terminate and be of no further force and effect upon
(i) full payment of the Final Redemption Price of all Trust Preferred
Securities, (ii) upon liquidation of the Issuer and the distribution of the
Debentures to Holders of Trust Preferred Securities or (iii) at such other time
when there are no longer any Trust Preferred Securities outstanding.
Notwithstanding the foregoing, this Trust Preferred Securities 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 the Trust Preferred Securities or this Trust Preferred Securities Guarantee
Agreement. Guarantor will indemnify each Holder and hold it harmless from and
against any loss it may suffer in such circumstance.
ARTICLE VIII
COMPENSATION AND EXPENSES
OF TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT TRUSTEE
SECTION 8.1 Compensation and Expenses of Trust Preferred
Securities Guarantee Agreement Trustee. The Guarantor covenants and agrees to
pay to the Trust Preferred Securities Guarantee Agreement Trustee from time to
time, and the Trust Preferred Securities Guarantee Agreement Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Guarantor and the Trust Preferred Securities Guarantee Agreement Trustee (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Guarantor will pay or reimburse the Trust
Preferred Securities Guarantee Agreement Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trust
Preferred Securities Guarantee Agreement Trustee in accordance with any of the
provisions of this Trust Preferred Securities Guarantee Agreement (including
the reasonable compensation
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and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expenses, disbursements or advances as
may arise form its negligence or bad faith. The Guarantor also covenants to
indemnify the Trust Preferred Securities Guarantee Agreement Trustee (and its
officers, agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other
than taxes based on the income of the Trust Preferred Securities Guarantee
Agreement Trustee) incurred without negligence or bad faith on the part of the
Trust Preferred Securities Guarantee Agreement Trustee and arising out of or in
connection with the acceptance or administration of this guarantee, including
the costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Guarantor under this Article VIII to compensate
and indemnify the Trust Preferred Securities Guarantee Agreement Trustee and to
pay or reimburse the Trust Preferred Securities Guarantee Agreement Trustee for
expenses, disbursements and advances shall be secured by a lien prior to that
of the Trust Preferred Securities upon all property and funds held or collected
by the Trust Preferred Securities Guarantee Agreement Trustee as such, except
funds held in trust for the benefit of the holders of particular Trust Preferred
Securities.
The provisions of this Article VIII shall survive the
termination of this Trust Preferred Securities Guarantee Agreement.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Guarantor or
any Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Trust Preferred Securities Guarantee Agreement and in a
manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Trust Preferred
Securities Guarantee Agreement or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the
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Indemnified Person reasonably believes are within such other Person's
professional or expert competence, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 9.2 Indemnification. The Guarantor agrees to indemnify
each Indemnified Person for, and to hold each Indemnified Person harmless
against, any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 9.02 shall survive the termination of
this Trust Preferred Securities Guarantee Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns. All guarantees and
agreements contained in this Trust Preferred Securities 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 or a conveyance, transfer
or lease of the Guarantor's properties that is permitted under Article Eight of
the Indenture and pursuant to which the successor or assignee agrees in writing
to perform the Guarantor's obligations hereunder, the Guarantor shall not
assign its obligations hereunder, and any purported assignment other than in
accordance with this provision shall be void.
SECTION 10.2 Amendments. Except with respect to any changes
that do not adversely affect the rights of Holders in any material respect (in
which case no consent of Holders will be required), this Trust Preferred
Securities Guarantee Agreement may be amended only with the prior approval of
the Holders of not less than a Majority in liquidation amount of the outstanding
Trust Preferred Securities (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting
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percentages are determined). The provisions of the Declaration concerning
meetings of Holders shall apply to the giving of such approval.
SECTION 10.3 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 or
telecopy number set forth below or such other address as the Guarantor
may give notice of to the Trust Preferred Securities Guarantee
Agreement Trustee:
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
βββ ββββ ββββββ βββββ
ββββββββ, ββββββββ βββββ
Phone No.: (βββ) βββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Corporate Secretary
(b) if given to the Issuer, at the address or
telecopy number set forth below or such other address as the Issuer may
give notice of to the Trust Preferred Securities Guarantee Agreement
Trustee:
CMS Energy Trust II
c/o CMS Energy Corporation
Fairlane Plaza South, Suite 1100
βββ ββββ ββββββ βββββ
ββββββββ, ββββββββ βββββ
Phone No.: (βββ) βββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Administrative Trustee
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with copy to:
The Bank of New York
βββ βββββββ ββββββ
βββββ βββ
βββ ββββ, βββ ββββ βββββ
Phone No.: (βββ) βββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Corporate Trust Administration
(c) if given to the Trust Preferred Securities
Guarantee Agreement Trustee, at the Trust Preferred Securities
Guarantee Agreement Trustee's address or telecopy number set forth
below:
The Bank of New York
βββ βββββββ ββββββ
βββββ βββ
βββ ββββ, βββ ββββ βββββ
Phone No.: (βββ) βββ-ββββ
Facsimile No: (βββ) βββ-ββββ
Attention: Corporate Trust Administration
(d) if given to any Holder of Trust Preferred
Securities, 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 person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 10.4 Benefit. This Trust Preferred Securities
Guarantee Agreement is solely for the benefit of the Holders, and is not
separately transferable from the Trust Preferred Securities.
SECTION 10.5 Interpretation. In this Trust Preferred
Securities Guarantee Agreement, unless the context otherwise requires:
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(a) all references in this Trust Preferred Securities
Guarantee Agreement to Articles and Sections are to Articles and
Sections of this Trust Preferred Securities Guarantee Agreement unless
otherwise specified;
(b) a term defined in the Trust Indenture Act has the
same meaning when used in this Trust Preferred Securities Guarantee
Agreement unless otherwise defined in this Trust Preferred Securities
Guarantee Agreement or unless the context otherwise requires;
(c) a reference to the singular includes the plural
and vice versa; and
(d) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter genders.
SECTION 10.6 GOVERNING LAW. THIS TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS.
SECTION 10.7 Counterparts. This Trust Preferred Securities
Guarantee Agreement may be executed in any number of counterparts, each of which
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 Trust Preferred Securities Guarantee Agreement is
executed as of the day and year first above written.
CMS ENERGY CORPORATION
By:/s/ ββββ β. ββββββ
---------------------------------------
Name: ββββ β. ββββββ
Title: Senior Vice President and
Chief Financial Officer
THE BANK OF NEW YORK,
as Trust Preferred Securities Guarantee
Agreement Trustee
By: /s/ βββββββ βββββββ
---------------------------------------
Name: βββββββ βββββββ
Title: Vice President
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