EXHIBIT 4-g
____________________________________
PREFERRED SECURITIES GUARANTEE AGREEMENT
KCPL Financing __
Dated as of ____________, 199_
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions 1
Section 1.2. Interpretation. 5
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application 5
Section 2.2. Lists of Holders of Preferred Securities 5
Section 2.3. Reports by the Guarantee Trustee 6
Section 2.4. Periodic Reports to Guarantee Trustee 6
Section 2.5. Evidence of Compliance with Conditions
Precedent 6
Section 2.6. Events of Default; Waiver. 6
Section 2.7. Events of Default; Notice 7
Section 2.8. Conflicting Interests 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee 7
Section 3.2. Certain Rights of Guarantee Trustee 9
Section 3.3. Not Responsible for Recitals or Issuance of
Guarantee 11
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility 12
Section 4.2. Appointment, Removal and Resignation of
Guarantee Trustee 12
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
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transaction 15
Section 6.2. Ranking 16
ARTICLE VII
TERMINATION
Section 7.1. Termination 16
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
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT
(this "Guarantee Agreement"), dated as of ____________,
199_, is executed and delivered by KANSAS CITY POWER & LIGHT
COMPANY, a Missouri corporation (the "Guarantor"), and The
First National Bank of Chicago, a national banking
association duly organized and existing under the laws of
the United States, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of KCPL
Financing _, a Delaware statutory business trust (the "I
ssuer").
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
____________, 199_, among the trustees of the Issuer, the
Guarantor as Sponsor and the holders from time to time of
undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof $___________
aggregate stated liquidation amount of its ____% Trust Origi
nated Preferred Securities (the "Preferred Securities"); and
WHEREAS, as incentive for the Holders to purchase
the Preferred Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth in
this Guarantee Agreement, to pay to the Holders of the
Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase
by each Holder of Preferred Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions. In this Guarantee
Agreement, unless the context otherwise requires: (a)
capitalized terms used in this Guarantee Agreement 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 Guarantee Agreement has the same meaning
throughout; and (c) a term defined in the Trust Indenture
Act has the same meaning when used in this Guarantee Agree
ment unless otherwise defined in this Guarantee Agreement or
unless the context otherwise requires.
Affiliate:
The term "Affiliate" has the same meaning as given
to that term in Rule 405 of the Securities Act of 1933 or
any successor rule thereunder.
Business Day:
The term "Business Day" means any day other than a
day on which banking institutions in Chicago, Illinois or
New York, New York are authorized or required by any
applicable law to close.
Common Securities:
The term "Common Securities" means the securities
representing common undivided beneficial interests in the
assets of the Issuer.
Covered Person:
The term "Covered Person" means any Holder or
beneficial owner of Preferred Securities.
Event of Default:
The term "Event of Default" means a default by the
Guarantor on any of its payment or other obligations under
this Guarantee Agreement.
Guarantee Payments:
The term "Guarantee Payments" means the following
payments or distributions, without duplication, with respect
to the 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
the 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
Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in
connection with the distribution of Subordinated Debentures
to the Holders in exchange for Preferred Securities as
provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Preferred Securities to the date
of payment, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation
Distribution").
Guarantee Trustee:
The term "Guarantee Trustee" means The First
National Bank of Chicago, as trustee under this Guarantee
Agreement, until a Successor Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means such
Successor Guarantee Trustee.
Holder:
The term "Holder" shall mean any holder, as
registered on the books and records of the Issuer, of any
Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage
of Preferred Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
Indemnified Person:
The term "Indemnified Person" means the Guarantee
Trustee, any Affiliate of the Guarantee Trustee, or any
officers, directors, shareholders, members, partners,
employees, representatives or agents of the Guarantee
Trustee.
Indenture:
The term "Indenture" means the Indenture dated as
of ___________, 199_, between the Guarantor (the "Debenture
Issuer") and The First National Bank of Chicago, as trustee,
and any amendment thereto and any indenture supplemental
thereto pursuant to which certain unsecured subordinated
debt securities of the Debenture Issuer are to be issued to
the Property Trustee of the Issuer.
Majority in liquidation amount of the Securities:
The term "Majority in liquidation amount of the
Securities" means, except as provided by the Trust Indenture
Act, a vote by Holder(s) of 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 maturity, plus accrued and unpaid
Distributions to the date upon which the voting percentages
are determined) of all Preferred Securities.
Officers' Certificate:
The term "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 Guarantee
Agreement shall include:
(a) a statement that each such 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 such 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:
The term "Person" means any individual,
corporation, partnership, limited liability company, joint
venture, joint stock company, unincorporated association or
government or any agency or political subdivision thereof,
or any other entity of whatever nature.
Responsible Officer:
The term "Responsible Officer", when used with
respect to the Guarantee Trustee, means the Chairman of the
board of directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate
trust officer or any other officer or assistant officer of
the Guarantee Trustee customarily performing functions
similar to those performed by any of the persons who at the
time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
Subordinated Debentures:
The term "Subordinated Debentures" means the
series of unsecured subordinated debt securities of the
Guarantor designated the ____% Junior Subordinated
Defferable Interest Debentures due ___________, ____ held by
the Property Trustee of the Issuer.
Successor Guarantee Trustee:
The term "Successor Guarantee Trustee" means a
successor Guarantee Trustee possessing the qualifications to
act as Guarantee Trustee under Section 4.1.
Trust Indenture Act:
The term "Trust Indenture Act" means the Trust
Indenture Act of 1939.
Section 1.2. Interpretation. Each definition in
this Guarantee Agreement includes the singular and the
plural, and references to the neuter gender include the
masculine and feminine where appropriate. Terms which
relate to accounting matters shall be interpreted in
accordance with generally accepted accounting principles in
effect from time to time. References to any statute mean
such statute as amended at the time and include any
successor legislation. The word "or" is not exclusive, and
the words "herein," "hereof" and "hereunder" refer to this
Guarantee Agreement as a whole. The headings to the
Articles and Sections are for convenience of reference and
shall not affect the meaning or interpretation of this
Guarantee Agreement. References to Articles and Sections
mean the Articles and Sections of this Guarantee Agreement
unless otherwise specified.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to
be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of
this Guarantee Agreement limits, qualifies or conflicts with
the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
Section 2.2. Lists of Holders of Preferred
Securities.
(a) The Guarantor shall provide the Guarantee
Trustee with a list, in such form as the Guarantee Trustee
may reasonably require, of the names and addresses of the
Holders of the Preferred Securities ("List of Holders") as
of such date, (i) within ten Business 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 14 days before
such List of Holders is given to the Guarantee Trustee, pro
vided that the Guarantor shall not be obligated to provide
such List of Holders at any time when the List of Holders
does not differ from the most recent List of Holders given
to the Guarantee Trustee by the Guarantor. The Guarantee
Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b)
of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, the Guarantee
Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act.
The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to Guarantee
Trustee. The Guarantor shall provide to the Guarantee
Trustee such documents, reports and information as required
by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314
of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with
Conditions Precedent. The Guarantor shall provide to the
Guarantee Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers'
Certificate.
Section 2.6. Events of Default; Waiver. The
Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of
the 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 Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 2.7. Events of Default; Notice.
(a) The 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 Preferred Securities,
notices of all Events of Default known to the Guarantee
Trustee, unless such defaults have been cured before the
giving of such notice, provided, that the Guarantee Trustee
shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of
the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Guarantee
Trustee shall have received written notice, or a Responsible
Officer charged with the administration of the Declaration
shall have obtained written notice, of such Event of
Default.
Section 2.8. Conflicting Interests. The
Declaration shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee
Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except to a
Holder of Preferred Securities exercising the rights of such
Holder pursuant to Section 5.4(b) or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guaran
tee Agreement for the benefit of the Holders of the
Preferred Securities.
(c) The Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events
of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be
read into this Guarantee Agreement against the Guarantee
Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement
shall be construed to relieve the Guarantee Trustee from
liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any
Event of Default and after the curing or waiving
of all such Events of Default that may have
occurred:
(A) the duties and obligations of
the Guarantee Trustee shall be determined
solely by the express provisions of this
Guarantee Agreement, and the Guarantee
Trustee shall not be liable except for the
performance of such duties and obligations as
are specifically set forth in this Guarantee
Agreement, and no implied covenants or
obligations shall be read into this Guarantee
Agreement against the Guarantee Trustee; and
(B) in the absence of bad faith on
the part of the Guarantee Trustee, the
Guarantee Trustee may conclusively rely, as
to the truth of the statements and the
correctness of the opinions expressed
therein, upon any certificates or opinions
furnished to the Guarantee Trustee and
conforming to the requirements of this
Guarantee Agreement; but in the case of any
such certificates or opinions that by any pro
vision hereof are specifically required to be
furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Declaration;
(ii) the Guarantee Trustee shall not be
liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was
made;
(iii) the Guarantee Trustee shall not be
liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with
the direction of the Holders of not less than a
Majority in liquidation amount of the Preferred
Securities at the time outstanding relating to the
time, method and place of conducting any pro
ceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee
Agreement shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur
personal financial liability in the performance of
any of its duties or in the exercise of any of its
rights or powers, if there is reasonable grounds
for believing that the repayment of such funds or
liability is not reasonably assured to it under
the terms of this Guarantee Agreement or adequate
indemnity against such risk or liability is not
reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and
shall be fully protected in acting or refraining
from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, re
quest, direction, consent, order, approval, bond,
security or other paper or document believed by it
to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the
Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by a Direction or
an Officers' Certificate.
(iii) Whenever in the administration of
this Guarantee Agreement the Guarantee Trustee
shall deem it desirable that a matter be proved or
established before taking, suffering or omitting
any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically pre
scribed) may, in the absence of bad faith on its
part, request and rely upon an Officers'
Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have
no duty to see to any recording, filing or regis
tration of any instrument (or any rerecording,
refiling or reregistration thereof).
(v) The 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 or suffered or
omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such coun
sel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees.
The Guarantee Trustee shall have the right at any
time to seek instructions concerning the
administration of this Guarantee Agreement from
any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be
under no obligation to exercise any of the rights
or powers vested in it by this Guarantee Agreement
at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee
Trustee reasonable security or indemnity against
the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred
by it in complying with such request or direction,
including such reasonable advances as may be
requested by the Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi)
shall, however, relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers
vested in it by this Guarantee Agreement.
(vii) The Guarantee Trustee shall not
be bound to make any investigation into the facts
or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, re
quest, direction, consent, order, approval, bond,
security or other papers or documents, but the
Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such
facts or matters as it may see fit.
(viii) The Guarantee Trustee may
execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by
or through agents or attorneys, and the Guarantee
Trustee shall not be responsible for any
misconduct or negligence on the part of any agent
or attorney appointed with due care by it
hereunder.
(ix) Any action taken by the Guarantee
Trustee or its agents hereunder shall bind the
Holders of the Preferred Securities, and the
signature of the 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 Guarantee
Trustee to so act or as to its compliance with any
of the terms and provisions of this Guarantee
Agreement, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of
this Guarantee Agreement the Guarantee Trustee
shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee
Trustee (i) may request instructions from the
Holders of a Majority in liquidation amount of the
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 acting in accor
dance with such instructions.
(b) No provision of this Guarantee Agreement
shall be deemed to impose any duty or obligation on the
Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in
which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform
any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be
a duty.
Section 3.3. Not Responsible for Recitals or
Issuance of Guarantee. The recitals contained in this
Guarantee shall be taken as the statements of the Guarantor,
and the Guarantee Trustee does not assume any responsibility
for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this
Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guar
antor; 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 institu
tional trustee under the Trust Indenture Act, autho
rized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000), and sub
ject 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 to be its combined capital and surplus as set
forth in its most recent report of condition so pub
lished.
(b) If at any time the Guarantee Trustee shall
cease to be eligible so to act under Section 4.1(a), the
Guarantee Trustee shall immediately resign in the manner and
with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Guarantee Trustee and
Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation
of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee
Trustee may be appointed or removed without cause at any
time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Guarantee
Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office
shall hold office until a Successor Guarantee Trustee shall
have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to
the Guarantor, which resignation shall not take effect until
a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed
by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have
been appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery to the Guarantor
of an instrument of resignation, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE 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 set-off or counterclaim
that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by
direct payment of 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 Guaran
tee 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 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 Guaran
tor under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the
Issuer of any express or implied agreement, covenant,
term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Preferred Securi
ties or the extension of time for the performance of
any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than
an extension of time for payment of Distributions that
results from the extension of any interest payment
period on the Subordinated Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of dili
gence on the part of the Holders to enforce, assert or
exercise any right, privilege, power or remedy con
ferred on the Holders pursuant to the terms of the Pre
ferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency
in, the Preferred Securities;
(f) the settlement or compromise of any obli
gation 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.
Section 5.4. Rights of Holders.
(a) The Holders of a Majority in liquidation
amount of the Preferred Securities have the right to direct
the time, method and place of conducting of any proceeding
for any remedy available to the Guarantee Trustee in respect
of this Guarantee Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement.
(b) If the Guarantee Trustee fails to enforce
this Guarantee Agreement, any Holder of Preferred Securities
may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agree
ment, without first instituting a legal proceeding against
the Issuer, the Guarantee Trustee or any other Person.
Section 5.5. Guarantee of Payment. This
Guarantee Agreement creates a guarantee of payment and not
of collection.
Section 5.6. Subrogation. The Guarantor shall be
subrogated to all (if any) rights of the Holders of
Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this
Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provi
sions 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 Guarantee Agreement, if, at the time
of any such payment, any amounts are due and unpaid under
this Guarantee Agreement. If any amount shall be paid to
the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
Section 5.7. Independent Obligations. The
Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to
the Preferred Securities, and that the Guarantor shall be
liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of
Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transaction. So long
as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default or an event of
default under the Declaration, then (a) the Guarantor shall
not declare or pay any dividend on, or make any distribution
with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital
stock (other than (i) purchases or acquisitions of shares of
Guarantor common stock in connection with the satisfaction
by the Guarantor of its obligations under any employee
benefit plans or any other contractual obligations of the
Guarantor, other than a contractual obligation ranking pari
passu, with or junior to the Subordinated Debentures),
(ii) as a result of a reclassification of Company capital
stock or the exchange or conversion of one class or series
of Company capital stock for another class or series of
Company capital stock or (iii) the purchase of fractional
interests in shares of Company capital stock pursuant to the
conversion or exchange provisions of such Company capital
stock or the security being converted or exchanged), (b) the
Guarantor shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by the
Guarantor which rank pari passu with or junior to the
Subordinated Debentures and (c) the Guarantor shall not make
any guarantee payments with respect to the foregoing (other
than pursuant to this Guarantee Agreement and other
guarantee agreements entered into by the Guarantor with
respect to preferred securities of any Affiliate of the
Guarantor).
Section 6.2. Ranking. This Guarantee Agreement
will constitute an unsecured obligation of the Guarantor and
will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, including the
Subordinated Debentures, except those liabilities of the
Guarantor made pari passu or subordinate by their terms,
(ii) pari passu with the most senior preferred stock now or
hereafter issued by the Guarantor and with any guarantee now
or hereafter entered into by the Guarantor in respect of any
preferred securities of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
Section 7.1. Termination. This Guarantee
Agreement shall terminate upon (i) full payment of the
Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Subordinated Debentures to the Holders
of all of the Preferred Securities or (iii) upon full
payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at
any time any of Preferred Securities must restore payment
of any sums paid under the Preferred Securities or under
this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation.
(a) No Indemnified Person shall be liable, respon
sible 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 Guarantee Agreement and in a manner
that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indem
nified Person by this 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 Indemnified Person reasonably believes are
within such 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 Distribu
tions to Holders of Preferred Securities might properly be
paid.
Section 8.2. Indemnification.
(a) To the fullest extent permitted by applicable
law, the Guarantor shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or
claim incurred by such Indemnified Person by reason of any
act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Guarantee Agree
ment and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on
such Indemnified Person by this Guarantee Agreement, except
that no Indemnified Person shall be entitled to be indemni
fied in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by an Indemni
fied Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the
Guarantor of an undertaking by or on behalf of the Indemni
fied Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns. All
guarantees and agreements contained in this Guarantee Agree
ment shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then
outstanding.
Section 9.2. Amendments. Except with respect to
any changes that do not materially adversely affect the
rights of Holders (in which case, no consent of Holders will
be required), this Guarantee Agreement may only be amended
with the prior approval of the Holders of at least 66-2/3%
in liquidation amount of all the outstanding Preferred
Securities. The provisions of Section 12.2 of the Decla
ration with respect to meetings of Holders of the Preferred
Securities apply to the giving of such approval.
Section 9.3. Notices. All notices provided for
in this Guarantee Agreement 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 Guarantee Trustee, at the
Guarantee Trustee's mailing address set forth below (or
such other address as the Guarantee Trustee may give
notice of to the Holders of the Preferred Securities):
The First National Bank of Chicago
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Attention: Corporate Trust Administration
(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 Preferred Securities):
Kansas City Power & Light Company
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Attention: Treasurer
(c) If given to any Holder of Preferred Secu
rities, 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 Guarantee Agreement
is solely for the benefit of the Holders of the Preferred
Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
Section 9.5. Governing Law. THIS GUARANTEE
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
THIS GUARANTEE AGREEMENT is executed as of the day
and year first above written.
KANSAS CITY POWER & LIGHT COMPANY
By: _______________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
Not in its individual capacity but
solely as Guarantee Trustee
By: _______________________
Name:
Title: