EXHIBIT 4.7
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
WPS RESOURCES CORPORATION
DATED AS OF ___________________, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . . 2
ARTICLE II TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . 5
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee . . . . . . 6
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . 6
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . . 7
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee. . 7
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee . . . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee . . . . 11
ARTICLE IV TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred
Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.3 Compensation and Reimbursement of Expenses of Trust
Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . 13
ARTICLE V GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . 13
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . 13
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . . 15
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ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . . . . . 16
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IX MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . 18
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 19
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CROSS-REFERENCE TABLE
FOR THE TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
SECTION OF SECTION OF
TRUST INDENTURE GUARANTEE
OF 1939, AS AMENDED AGREEMENT
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310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1(c), 2.8
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . 2.5, 3.2
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . 2.1, 3.2
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(a), 2.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
319(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Guarantee Agreement and shall not have any bearing on the
interpretation of its terms or provisions.
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Trust Preferred Securities
Guarantee"), dated as of ____________, 1998, is executed and delivered by WPS
Resources Corporation, a Wisconsin corporation (the "Guarantor"), and State
Street Bank and Trust Company, a Massachusetts trust company, not in its
individual capacity but solely as trustee (the "Trust Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to
time of the Trust Preferred Securities (as defined herein) of WPSR Capital
Trust I, a Delaware statutory business trust (the "Issuer").
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of ____________, 1998, among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof 2,000,000 preferred securities,
having an aggregate liquidation amount of $50,000,000, designated the ____%
Trust Preferred Securities (the "Trust Preferred Securities");
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 in this Trust Preferred Securities
Guarantee, 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; and
WHEREAS, the Guarantor is also executing and delivering a guaranty
agreement (the "Trust Common Securities Guarantee") in substantially
identical terms to this Trust Preferred Securities Guarantee for the benefit
of the holders of the Trust Common Securities (as defined herein), except
that if an Event of Default (as defined in the Indenture), has occurred and
is continuing, the rights of holders of the Trust Common Securities to
receive Guarantee Payments under the Trust Common Securities Guarantee are
subordinated to the rights of Holders of Trust Preferred Securities to
receive Guarantee Payments under this Trust Preferred Securities Guarantee.
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 for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION.
In this Trust Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Trust Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Trust Preferred Securities Guarantee"
or "this Trust Preferred Securities Guarantee" are to this Trust Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Trust Preferred Securities Guarantee, unless otherwise
defined in this Trust Preferred Securities Guarantee or unless the context
otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Business Day" means any day other than a day on which state or
federal banking institutions in New York, New York, or Boston, Massachusetts,
are authorized or required by law to close.
"Corporate Trust Office" means the office of the Trust Preferred
Guarantee Trustee at which the corporate trust business of the Trust
Preferred Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is
located at ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
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"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the ____% Junior Subordinated Deferrable
Interest Debentures due ____ held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Direction" by a Person means a written direction signed: (a) if
the Person is a natural person, by that Person; or (b) in any other case, in the
name of such person by one or more Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Trust Preferred Securities Guarantee.
"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 the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration) that are required to be
paid on such Trust Preferred Securities, to the extent the Issuer shall have
funds available therefor, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price") to the
extent the Issuer has funds available therefor, with respect to any Trust
Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, liquidation, winding-up or termination of
the Issuer (other than in connection with the distribution of Debentures to the
Holders in exchange for Trust Preferred Securities as provided in the
Declaration or the redemption of all of the Trust Preferred Securities upon
maturity or redemption of Debentures), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Trust
Preferred Securities to the date of payment, to the extent the Issuer shall have
funds available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an event of default under the
Indenture has occurred and is continuing, the rights of holders of the Trust
Common Securities to receive payments under the Trust Common Securities
Guarantee Agreement are subordinated to the rights of Holders of Trust Preferred
Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered in the books and
records of the Issuer, 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 or any Affiliate of the
Guarantor; and provided further, that in determining whether the Holders of the
requisite liquidation amount of Trust Preferred Securities have voted on any
matter provided for in this Trust Preferred Securities Guarantee, then for the
purpose of such determination only (and not for any other purpose hereunder) if
the Trust Preferred Securities remain in the form of one or more Global
Certificates (as defined in the Declaration), the term "Holders" shall mean the
holder of the Global Certificate acting at the direction of the Trust Preferred
Security Beneficial Owners (as defined in the Declaration).
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"Indemnified Person" means the Trust Preferred Guarantee Trustee,
any Affiliate of the Trust Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Trust Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of ____________, 1998
between the Guarantor (the "Debenture Issuer") and State Street Bank and Trust
Company, as trustee, and any indenture supplemental thereto pursuant to which
certain subordinated debt securities of the Debenture Issuer are to be issued to
the Property Trustee of the Issuer.
"Majority in liquidation amount of the Trust Preferred Securities"
means, except as provided in the terms of the Trust Preferred Securities or by
the Trust Indenture Act, a vote by Holder(s) of Trust Preferred Securities,
voting separately as a class, of more than 50% of the liquidation amount
(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 percentages are determined) of all Trust Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary
to enable such officer to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Trust
Preferred Guarantee Trustee, the chairman of the board of directors,
president, any vice-president, any assistant vice-president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, any trust
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officer or other officer of the Trust Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Trust Preferred Guarantee Trustee" means a successor
Trust Preferred Guarantee Trustee possessing the qualifications to act as
Trust Preferred Guarantee Trustee under Section 4.1.
"Trust Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Preferred Guarantee Trustee" means State Street Bank and
Trust Company until a Successor Trust Preferred Guarantee Trustee had been
appointed and has accepted such appointment pursuant to the terms of this Trust
Preferred Securities Guarantee and thereafter means each such Successor Trust
Preferred Guarantee Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Trust Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this Trust
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Trust Preferred Guarantee
Trustee with a list, in such form as the Trust Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the Trust
Preferred Securities ("List of Holders") as of such date, (i) within fourteen
(14) days after January 1 and June 30 of each year, and (ii) at any other time
within 30 days of receipt by the Guarantor of a written request for a List of
Holders as of a date no more than fourteen (14) days before such List of Holders
is given to the Trust Preferred Guarantee Trustee; provided, that the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the Trust
Preferred Guarantee Trustee by the Guarantor. The Trust Preferred
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Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Trust Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE TRUST PREFERRED GUARANTEE TRUSTEE
On or before July 15 of each year, the Trust Preferred Guarantee
Trustee shall provide to the Holders of the Trust Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act. The Trust
Preferred Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO TRUST PREFERRED GUARANTEE TRUSTEE
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Trust Preferred Guarantee Trustee
is for informational purposes only and the Trust Preferred Guarantee
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 Guarantee Trustee is entitled to
rely exclusively on officers' certificates).
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such evidence of compliance with such conditions precedent, if any,
provided for in this Trust Preferred Securities Guarantee that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of the Trust
Preferred Securities may, by vote, on behalf of the Holders of all of the
Trust Preferred Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Trust Preferred Securities Guarantee,
but no such waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon.
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SECTION 2.7 EVENT OF DEFAULT; NOTICE.
(a) The Trust Preferred Guarantee Trustee shall, within 90 days
after a Responsible Officer has knowledge of the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders of the
Trust Preferred Securities, notices of all Events of Default actually known
to a Responsible Officer of the Trust Preferred Guarantee Trustee, unless
such defaults have been cured before the giving of such notice, provided,
that, the Trust Preferred Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Trust Preferred
Guarantee Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless the Trust Preferred
Guarantee Trustee shall have received written notice, or a Responsible
Officer of the Trust Preferred Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge, of
such Event of Default.
SECTION 2.8 CONFLICTING INTERESTS.
The Declaration shall be deemed to be specifically described in
this Trust Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE TRUST PREFERRED GUARANTEE TRUSTEE.
(a) This Trust Preferred Securities Guarantee shall be held by
the Trust Preferred Guarantee Trustee for the benefit of the Holders of the
Trust Preferred Securities, and the Trust Preferred Guarantee Trustee shall
not transfer this Trust Preferred Securities Guarantee to any Person except a
Holder of Trust Preferred Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Trust Preferred Guarantee Trustee on
acceptance by such Successor Trust Preferred Guarantee Trustee of its
appointment to act as Successor Trust Preferred Guarantee Trustee. The right,
title and interest of the Trust Preferred Guarantee Trustee shall
automatically vest in any Successor Trust Preferred Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Trust Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee has occurred and is continuing,
the Trust Preferred Guarantee
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Trustee shall enforce this Trust Preferred Securities Guarantee for the
benefit of the Holders of the Trust Preferred Securities.
(c) The Trust Preferred Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Preferred Securities Guarantee, and no
implied covenants shall be read into this Trust Preferred Securities Guarantee
against the Trust Preferred Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Trust Preferred Guarantee
Trustee, the Trust Preferred Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Trust Preferred Securities Guarantee and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Trust Preferred Securities Guarantee
shall be construed to relieve the Trust Preferred Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Trust Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Trust Preferred Securities Guarantee, and the
Trust Preferred Guarantee 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, and no
implied covenants or obligations shall be read into this Trust
Preferred Securities Guarantee against the Trust Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Trust
Preferred Guarantee Trustee, the Trust Preferred 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 Trust Preferred
Guarantee Trustee and conforming to the requirements of this Trust
Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trust Preferred
Guarantee Trustee, the Trust Preferred Guarantee 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;
(ii) the Trust Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Trust Preferred Guarantee Trustee, unless it shall be proved that the
Trust Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
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(iii) the Trust Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than a
Majority in liquidation 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 Guarantee Trustee, or exercising any
trust or power conferred upon the Trust Preferred Guarantee Trustee under
this Trust Preferred Securities Guarantee; and
(iv) no provision of this Trust Preferred Securities Guarantee
shall require the Trust Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers, if the Trust Preferred Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Trust Preferred
Securities Guarantee or indemnity, reasonably satisfactory to the Trust
Preferred Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting
upon, any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Trust Preferred Securities Guarantee shall be sufficiently evidenced by a
Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Trust Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Trust Preferred Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Trust Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
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(v) The Trust Preferred Guarantee Trustee may consult with
counsel, and the written advice or opinion of such counsel with respect
to legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may include
any of its employees. The Trust Preferred Guarantee Trustee shall have
the right at any time to seek instructions concerning the administration
of this Trust Preferred Securities Guarantee from any court of competent
jurisdiction.
(vi) The Trust Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Trust Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Trust Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Trust Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Trust
Preferred Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trust Preferred Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Trust Preferred
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Trust
Preferred Securities Guarantee.
(vii) The Trust Preferred 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 Trust Preferred
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Trust Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Trust Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Trust Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders of the Trust Preferred
Securities, and the signature of the Trust Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the authority
of the Trust Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Trust Preferred
Securities Guarantee, both of which shall be conclusively evidenced by
the Trust Preferred Guarantee Trustee's or its agent's taking such
action.
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(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Trust Preferred Guarantee 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 Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the Trust Preferred Securities, (ii) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(b) No provision of this Trust Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Trust Preferred
Guarantee Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Trust Preferred Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trust Preferred Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE
The recitals contained in this Trust Preferred Securities
Guarantee shall be taken as the statements of the Guarantor, and the Trust
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Trust Preferred Guarantee Trustee makes no representation as to
the validity or sufficiency of this Trust Preferred Securities Guarantee.
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 TRUST PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Trust Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed
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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 Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Trust Preferred
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Trust Preferred Guarantee Trustee and Guarantor shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUST PREFERRED GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), the Trust Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Trust Preferred Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Trust Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Trust Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Trust Preferred Guarantee Trustee appointed to office
shall hold office until a Successor Trust Preferred Guarantee Trustee shall have
been appointed or until its removal or resignation. The Trust Preferred
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trust Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Trust Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Trust Preferred Guarantee Trustee and delivered to the Guarantor
and the resigning Trust Preferred Guarantee Trustee.
(d) If no Successor Trust Preferred Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of resignation,
the resigning Trust Preferred Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Trust Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trust Preferred Guarantee Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Trust Preferred Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee or removal or resignation of the Trust Preferred Guarantee Trustee
pursuant to this Section 4.2, the
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Guarantor shall pay to the Trust Preferred Guarantee Trustee all amounts
accrued to the date of such termination, removal or resignation.
SECTION 4.3 COMPENSATION AND REIMBURSEMENT OF EXPENSES OF TRUST PREFERRED
GUARANTEE TRUSTEE.
The Guarantor covenants and agrees to pay to the Trust Preferred
Guarantee Trustee from time to time, and the Trust Preferred Guarantee Trustee
shall be entitled to, such compensation as shall be agreed to in writing between
the Guarantor and the Trust Preferred Guarantee 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
Guarantee Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trust Preferred Guarantee Trustee in
accordance with any of the provisions of this Trust Preferred Securities
Guarantee (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith.
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 the Issuer), as and when due, regardless of any defense,
right of setoff or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders 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 this Trust
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Trust Preferred Securities Guarantee shall be absolute and
unconditional and shall remain in full force and effect until the entire
liquidation amount of all outstanding Trust Preferred Securities shall have been
paid and shall in no way be affected or impaired by reason of the happening from
time to time of any of the following:
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(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, 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 (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Debentures;
(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 otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
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. No setoff, counterclaim, reduction, or diminution of any obligation
or any defense of any kind or nature that the Guarantor has or may have against
any Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under the Trust Preferred Securities Guarantee.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) 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 Trust Preferred
Guarantee Trustee in respect of this Trust Preferred
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Securities Guarantee or exercising any trust or power conferred upon the
Trust Preferred Guarantee Trustee under this Trust Preferred Securities
Guarantee.
(b) If the Trust Preferred Guarantee Trustee fails to enforce
this Trust Preferred Securities Guarantee, then any Holder of Trust Preferred
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Trust Preferred Guarantee Trustee's rights under this Trust
Preferred Securities Guarantee without first instituting a legal proceeding
against the Issuer, the Trust Preferred Guarantee Trustee or any other person or
entity. The Guarantor hereby waives any right or remedy to require that any
action on this Trust Preferred Securities Guarantee 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 creates a guaranty of
payment and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Trust Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Trust Preferred
Securities Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Trust Preferred Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Trust Preferred Securities Guarantee. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7 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 notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Trust Preferred Securities remain outstanding, if
there shall have occurred an Event of Default or an event of default under the
Declaration ("Declaration Event of Default"), then (a) the Guarantor shall not
declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock (other than (i) repurchases or acquisitions of the
Guarantor's common shares as contemplated by any employment arrangement, benefit
plan or other similar contract with or for the benefit of employees, officers or
directors entered into in the ordinary course of business, (ii) repurchases of
the Guarantor's common shares as contemplated by the Guarantor Stock Investment
Plan or Guarantor Deferred Compensation Plan, as in effect immediately prior to
the occurrence of such Event of Default or such Declaration Event of Default,
(iii) as a result of an exchange or conversion of any class or series of the
Guarantor's capital stock for the Guarantor's common shares, provided that such
class or series of the Guarantor's capital stock was outstanding prior to the
occurrence of such Event of Default or such Declaration Event of Default, (iv)
the purchase of fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such Guarantor capital
stock or the security being converted or exchanged, provided that such Guarantor
capital stock or security was outstanding prior to the occurrence of such Event
of Default or such Declaration Event of Default, or (v) the payment of any stock
dividend where the dividend is paid in the form of the same stock as that on
which the dividend is paid), (b) the Guarantor shall not directly or indirectly,
and shall not allow any of its Subsidiaries to, make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Guarantor that rank pari passu with or junior to the
Debentures, and (c) the Guarantor shall not make guaranty payments with respect
to the foregoing (other than pursuant to this Trust Preferred Securities
Guarantee Agreement).
SECTION 6.2 RANKING.
This Trust Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor, including the
Debentures, except those liabilities of the Guarantor made pari passu or
subordinate by their terms, (ii) pari passu with the most senior preferred or
preference stock, if any, hereafter issued by the Guarantor and with any
guaranty now or hereafter entered into by the Guarantor in respect of any
preferred or preference securities of any Affiliate of the Guarantor, and (iii)
senior to the Guarantor's common stock. If an Event of Default has occurred and
is continuing under the Declaration, the rights of the holders of the Trust
Common Securities to receive any payments under the Trust Common Securities
Guarantee shall be subordinate to the rights of the Holders of Trust Preferred
Securities to receive Guarantee Payments hereunder.
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ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION.
This Trust Preferred Securities Guarantee shall terminate upon (i)
full payment of the Redemption Price of all Trust Preferred Securities, (ii) the
distribution of the Debentures to the Holders of all of the Trust Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Declaration upon dissolution of the Issuer. Notwithstanding the foregoing, this
Trust Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Trust Preferred
Securities must restore payment of any sums paid under the Trust Preferred
Securities or under this Trust Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this Trust
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Trust Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Trust Preferred
Securities might properly be paid.
SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any loss, liability 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
17
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 8.2 shall survive the termination of this Trust Preferred Securities
Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guaranties and agreements contained in this Trust Preferred
Securities Guarantee 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.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Trust Preferred Securities Guarantee may only be amended with the prior
approval of the Holders of at least a Majority in liquidation amount (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
percentages are determined) of all the outstanding Trust Preferred Securities.
The provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Securities apply to the giving of such approval.
SECTION 9.3 NOTICES.
All notices provided for in this Trust Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) If given to the Trust Preferred Guarantee Trustee, at the
Trust Preferred Guarantee Trustee's mailing address set forth below (or such
other address as the Trust Preferred Guarantee Trustee may give notice of to the
Holders of the Trust Preferred Securities):
State Street Bank and Trust Company
Two International Place, ▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
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(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Trust Preferred Securities):
WPS Resources Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
Attention: Treasurer
(c) If given to any Holder of Trust Preferred Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Trust Preferred Securities Guarantee is solely for the
benefit of the Holders of the Trust Preferred Securities and, subject to Section
3.1(a), is not separately transferable from the Trust Preferred Securities.
SECTION 9.5 GOVERNING LAW.
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the
day and year first above written.
WPS RESOURCES CORPORATION
as Guarantor
By:
------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity but
solely as Trust Preferred Guarantee Trustee
By:
------------------------------
Name:
Title:
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