<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 10, 1999
REGISTRATION NO. 333-86299
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
UTILICORP UNITED INC. DELAWARE 44-0541877
UCU CAPITAL TRUST I DELAWARE APPLIED FOR
(Exact name of each (State of incorporation or (I.R.S. Employer
registrant organization of each Identification Number)
as specified in its registrant)
charter)
</TABLE>
20 WEST NINTH STREET
KANSAS CITY, MISSOURI 64105
(816) 421-6600
(Address, including zip code and telephone number, including
area code, of each registrants, principal executive office)
RICHARD C. GREEN, JR.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
20 WEST NINTH STREET
KANSAS CITY, MISSOURI 64105
(816) 421-6600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
WITH COPIES TO:
<TABLE>
<S> <C>
DENNIS P. WILBERT, ESQ. ROBERT W. MULLEN, JR., ESQ.
Blackwell Sanders Peper Martin LLP Milbank, Tweed, Hadley & McCloy LLP
2300 Main Street, Suite 1100 1 Chase Manhattan Plaza
Kansas City, Missouri 64108 New York, New York 10005
(816) 983-8000 (212) 530-5000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
investment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE PER OFFERING REGISTRATION
REGISTERED REGISTERED(1) SECURITY(2) PRICE(3) FEE(7)
<S> <C> <C> <C> <C>
Common Stock, par value $1.00 per share of
UtiliCorp United Inc.(4)...................
Debt Securities of UtiliCorp United Inc......
Stock Purchase Contracts of UtiliCorp United
Inc........................................
Stock Purchase Units of UtiliCorp United
Inc.(5)....................................
Subordinated Debentures of UtiliCorp United
Inc........................................
Guarantee of UtiliCorp United Inc. in
connection with Preferred Securities of UCU
Capital Trust I(6).........................
Preferred Securities of UCU Capital Trust
I..........................................
Total.................................... 1,038,000,000 100% 1,038,000,000 $222,384
</TABLE>
(1) Such amount in U.S. dollars or the equivalent thereof in other currencies,
including composite currencies, as shall result in an aggregate offering
price for all securities of $1,038,000,000.
(2) Omitted pursuant to General Instruction II.D. of Form S-3.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
(4) Includes (a) an indeterminate number of shares of Common Stock to be issued
by UtiliCorp United Inc. upon settlement of the Stock Purchase Contracts and
(b) a Preference Stock Purchase Right attached to each share of Common
Stock, that prior to the occurrence of certain events, will not be evidenced
separately from the Common Stock.
(5) Each Stock Purchase Unit of UtiliCorp United Inc. consists of (a) a Stock
Purchase Contract, under which the holder, upon settlement, will purchase an
indeterminate number of shares of Common Stock of UtiliCorp United Inc. and
(b) either a beneficial interest in Preferred Securities of UCU Capital
Trust I or debt obligations of third parties, including U.S. Treasury
securities, purchased with the proceeds from the sale of the Stock Purchase
Units. Each beneficial interest will be pledged to secure the obligation of
such holder to purchase such shares of Common Stock. No separate
consideration will be received for the Stock Purchase Contracts.
(6) No separate consideration will be received for the guarantee by UtiliCorp
United Inc.
(7) Previously paid.
The prospectus included in this Registration Statement is a combined
prospectus as permitted by Rule 429 under the Securities Act of 1933. If the
Securities are issued as Debt Securities or Common Stock, par value $1.00 per
share, of UtiliCorp United Inc., the prospectus will also cover $238,059,375 of
Debt Securities and Common Stock previously registered and unissued
(Registration Statement No. 333-67067).
----------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED , 1999
[LOGO]
UCU CAPITAL TRUST I
------------------
$1,038,000,000
DEBT SECURITIES
COMMON STOCK
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
SUBORDINATED DEBENTURES
TRUST PREFERRED SECURITIES AND RELATED GUARANTEES
------------------
We will provide specific terms of these securities in supplements to this
prospectus.
You should read this prospectus and any supplement carefully before you invest.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This Prospectus is dated , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
About This Prospectus....................................... 2
Where You Can Find More Information......................... 3
UtiliCorp United Inc........................................ 4
The Trust................................................... 4
Use of Proceeds............................................. 5
Accounting Treatment Relating to Trust Securities........... 5
Ratios of Earnings to Fixed Charges......................... 5
Description of Common Stock................................. 5
Description of Debt Securities.............................. 9
Description of Subordinated Debentures...................... 13
Description of Trust Preferred Securities................... 21
Description of The Guarantee................................ 31
Relationship Among The Preferred Securities, The
Subordinated Debentures and The Guarantee................. 33
Description of Stock Purchase Contracts And Stock Purchase
Units..................................................... 35
Plan of Distribution........................................ 35
Legal Matters............................................... 37
Experts..................................................... 37
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that UtiliCorp, together
with the Trust, filed with the Securities and Exchange Commission utilizing a
"shelf" registration process. Under this shelf process, UtiliCorp and the Trust
may, from time to time, sell any combination of the securities described in this
prospectus in one or more offerings up to a total dollar amount of
$1,038,000,000. This prospectus provides you with a general description of the
securities that may be offered. Each time UtiliCorp and the Trust sells
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "UtiliCorp," "we," "our," "us," or similar
references mean UtiliCorp United Inc.
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any of these materials at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington D.C. 20549.
You may obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. We file information electronically with the
SEC. The SEC maintains an Internet site that contains reports, proxy and
information statements and other information regarding issuers that file
electronically with the SEC. The address of the SEC's Internet site is
http://www.sec.gov. UtiliCorp's Internet address is http://www.utilicorp.com.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934:
a. Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
b. Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
June 30, 1999.
c. Current Reports on Form 8-K dated March 5 and May 14, 1999.
d. The description of Common Stock contained in our Registration Statement
on Form 8-B dated May 5, 1987 and the description of the Preference Stock
Purchase Rights set forth in our Registration Statement on Form 8-A dated
March 4, 1997.
You may request a copy of these filings, at no cost, by telephoning or
writing to us at the following address:
Investor Relations
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri, 64105
816-421-6600
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information contained in this prospectus and in any
prospectus supplement. We have not authorized any other person to provide you
with different information. If anyone provides you with different or
inconsistent information, you should not rely on it.
3
<PAGE>
UTILICORP UNITED INC.
UtiliCorp is a multinational energy and energy services company
headquartered in Kansas City, Missouri. UtiliCorp's executive offices are
located at 20 West Ninth Street, Kansas City, Missouri 64105, and its telephone
number is (816) 421-6600.
THE TRUST
UCU Capital Trust I is a statutory business trust that was created in August
1999 under the Delaware Business Trust Act. The Trust currently is governed by:
- a declaration of trust dated as of August 30, 1999, that was executed by
UtiliCorp, as a sponsor of the Trust, and by certain trustees of the
Trust; and
- a certificate of trust dated as of August 30, 1999, filed with the
Secretary of State of the State of Delaware.
Prior to the issuance of the trust preferred securities, the declaration of
trust will be amended and restated in its entirety, substantially in the form
filed as an exhibit to, or incorporated by reference into, the registration
statement.
At such time as the Trust issues and sells the trust preferred securities,
UtiliCorp will purchase the trust common securities in an aggregate liquidation
amount equal to at least three percent of the total capital of the Trust. The
trust common securities will constitute all of the common securities of the
Trust. Upon the sale and issuance of the trust common securities and the trust
preferred securities, the Trust will use the proceeds to purchase debt
securities from UtiliCorp. The Trust exists for the exclusive purposes of:
- selling and issuing the trust securities, which represent undivided
beneficial ownership interests in the assets of the Trust;
- using the proceeds from such sale and issuance to purchase the debt
securities; and
- except as otherwise set forth in the declaration of trust, engaging in
only those other activities necessary or incidental to the purposes set
forth above.
The Trust has a term of approximately seven years but may be dissolved
earlier as provided in the declaration of trust.
The Trust's business and affairs will be conducted initially by five
trustees appointed by us, as sole holder of the trust common securities. Three
of the trustees are our employees, officers or persons affiliated with us.
Pursuant to the declaration of trust, the fourth trustee is The First National
Bank of Chicago (or its successor), a financial institution that is unaffiliated
with us, which serves as the property trustee under the declaration of trust and
as indenture trustee for the purposes of complying with the provisions of the
Trust Indenture Act of 1939. The fifth trustee is Bank One Delaware, Inc., who
will serve as trustee in the State of Delaware for the purpose of complying with
the provisions of Delaware Business Trust Act. The First National Bank of
Chicago (or its successor) also will act as trustee under our guarantee of the
trust preferred securities for the purposes of complying with the Trust
Indenture Act.
The property trustee will own and hold legal title to the debt securities
for the benefit of the Trust and the holders of the trust securities. The
property trustee will have the legal power to exercise all of the rights, powers
and privileges of a holder of debt securities under the indenture. In addition,
the property trustee will establish and maintain exclusive control of a
segregated non-interest bearing trust account to hold all payments made in
respect of the debt securities for the benefit of the holders of the trust
preferred securities. The property trustee will use funds from the trust account
to make distribution payments and any payments on liquidation, redemption or
otherwise to the holders of the trust preferred securities.
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<PAGE>
We, as holder of all of the Trust's outstanding common securities, will have
the right to appoint, remove or replace any trustee and to increase or decrease
the number of trustees, provided that the Trust always will have at least three
trustees. Furthermore, we, as issuer of the debt securities, will pay all fees
and expenses related to the Trust's ongoing affairs and operations (including
any taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes)), including the offering of the trust securities.
The rights of the holders of the trust preferred securities, including any
economic rights, rights to information and voting rights, are set forth in the
declaration trust, the Delaware Business Trust Act and the Trust Indenture Act.
The Delaware trustee's offices are located at 201 North Walnut Street,
Wilmington, Delaware 19801. The Trust's principal place of business is in care
of UtiliCorp United Inc., 20 West Ninth Street, Kansas City, Missouri, 64105.
Its telephone number is (816) 421-6600.
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, the net proceeds from
the sale of the offered securities will be used for general corporate purposes
including repayment of debt, construction and acquisitions. At June 30, 1999, we
had outstanding short-term borrowings (excluding current maturities of long-term
debt) of approximately $467.2 million.
ACCOUNTING TREATMENT RELATING TO TRUST SECURITIES
The financial statements of the Trust will be consolidated with our
financial statements, with the trust preferred securities shown on our
consolidated financial statements as obligated mandatory redemption preferred
securities of a consolidated trust. Our financial statements will include a
footnote that discloses, among other things, that the assets of the Trust
consist of our debt securities and will specify the designation, principal
amount, interest rate and maturity date of the debt securities.
RATIOS OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED JUNE 30, YEARS ENDED DECEMBER 31,
----------------- ------------------------------------------
1999 1998 1997 1996 1995
----------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges........................... 2.36 2.43 2.46 2.15 1.93
<CAPTION>
1994
---------
<S> <C>
Ratio of Earnings to Fixed Charges........................... 2.31
</TABLE>
The ratio of earnings to fixed charges represents the number of times fixed
charges are covered by earnings. For the purpose of this ratio, "earnings" is
determined by adding pretax income to "fixed charges". For this purpose "fixed
charges" consists of (1) interest on all indebtedness and amortization of debt
discount and expense, (2) interest capitalized and (3) an interest factor
attributable to rentals.
DESCRIPTION OF COMMON STOCK
GENERAL
The following description of our common stock is a summary and is not
complete. You should refer to our governing corporate documents and our Michigan
Gas Utilities Indenture, dated as of July 1, 1951, which secures the first
mortgage bonds issued by Michigan Gas Utilities Company and assumed by us in
connection with our acquisition of Michigan Gas Utilities Company in 1989.
5
<PAGE>
We are authorized to issue up to 230,000,000 shares of capital stock
consisting of:
- 200,000,000 shares of common stock, par value $1 per share;
- 10,000,000 shares of preference stock, without par value; and
- 20,000,000 shares of Class A common stock, par value $1 per share.
DIVIDEND RIGHTS AND LIMITATIONS
Subject to the limitations referred to below, our board of directors may
declare dividends on our capital stock out of funds legally available for that
purpose.
Cash dividends on our capital stock are restricted by provisions of the
Michigan Gas Utilities Indenture. Under the most restrictive of these
provisions, we may not declare or pay any dividend, other than a dividend
payable in shares of our capital stock, if, after giving effect to the dividend,
the sum of:
- the aggregate amount of all dividends declared and all other distributions
made, other than dividends declared or distributions made in shares of our
capital stock, subsequent to December 31, 1984; plus
- the excess, if any, of the amount applied to or set apart for the
acquisition of any shares of our capital stock subsequent to December 31,
1984, over amounts received by us as the net cash proceeds of sales of
shares of our capital stock subsequent to that date, would exceed the sum
of our net income since January 1, 1985, plus $50 million.
In addition, we may not declare dividends unless we maintain a tangible net
worth of at least $250 million and the total principal amount of our outstanding
indebtedness does not exceed 70% of our capitalization. None of our retained
earnings was restricted as to payment of cash dividends on our capital stock as
of June 30, 1999.
VOTING RIGHTS
Holders of our common stock are entitled to one vote for each share held of
record. Our board of directors is divided into three classes, and each year one
class is elected to serve a three-year term. Holders of common stock do not have
cumulative voting in the election of directors. Accordingly, the holders of more
than 50% of the outstanding shares of our common stock voting for the election
of directors can elect all the directors, and the remaining holders will not be
able to elect any directors.
LIQUIDATION RIGHTS
Our outstanding common stock is, and the common stock that may be offered
from time to time, when issued and paid for will be, fully paid and
non-assessable. Holders of common stock do not have any preemptive rights. On
liquidation, the holders of the common stock will be entitled to all amounts
remaining for distribution after payment of the liquidation preferences of the
outstanding shares, if any, of the Class A common stock and the preference
stock.
CLASS A COMMON STOCK AND PREFERENCE STOCK
Without action by our stockholders, our board of directors may issue one or
more series of Class A common stock or preference stock that may have terms more
favorable than the common stock, including preferential dividend, liquidation,
redemption and voting rights.
We may use the Class A common stock or the preference stock as an
anti-takeover device because these securities may be issued with "super voting"
rights and placed in the control of parties aligned with current management.
However, the NYSE has in effect a rule that restricts our ability to issue Class
A common stock and preference stock with super voting rights. There are
presently no shares of Class A common stock or preference stock issued or
outstanding.
STOCKHOLDER RIGHTS PLAN
We have adopted a stockholder rights plan under which our stockholders have
been granted one preference stock purchase right for each
6
<PAGE>
share of common stock held. The following description of the purchase rights is
not complete. You should refer to the Rights Agreement we entered into with
First Chicago Trust Company of New York on December 31, 1996, a copy of which we
filed with the SEC as an exhibit to our Form 8-A Registration Statement filed on
March 4, 1997.
Each purchase right, when it becomes exercisable as described below,
entitles the holder to purchase one one-thousandth of a share of our Series A
Participating Cumulative Preference Stock, no par value, at a purchase price of
$76.67, subject to certain adjustments and other specified conditions.
The purchase rights become exercisable upon the occurrence of a
"distribution date," which is defined in the rights agreement as the earlier of:
- the tenth business day, or such later date as our board of directors may
fix, after the date on which any company commences a tender or exchange
offer which, if consummated, would result in the company acquiring
ownership of more than 15% of our outstanding common stock; or
- the "flip-in date," which means the tenth business day after we first
publicly announce that a company has acquired ownership of more than 15%
of our outstanding common stock, or such other date as our board of
directors may adopt prior to the flip-in date that would otherwise have
occurred.
The rights agreement does not apply to certain acquisitions, including
acquisitions by a company that inadvertently acquires ownership of more than 15%
of our outstanding common stock, provided the company promptly divests
sufficient shares of common stock to reduce its percentage ownership below 15%.
If a flip-in date occurs, each purchase right, other than purchase rights
the acquiring company or any of its affiliates beneficially own, will constitute
the right to purchase from us that number of shares of our common stock having a
market value equal to twice the exercise price of the purchase right. On the
occurrence of a flip-in date, the purchase rights beneficially owned by the
acquiring company or any of its affiliates will be void.
In addition, our board of directors may, at its option, at any time after a
flip-in date and prior to the time the acquiring company becomes the owner of
more than 50% of the outstanding shares of our common stock, elect to exchange
all of the outstanding purchase rights, other than those purchase rights
beneficially owned by the acquiring company or its affiliates, for shares of our
common stock at an exchange ratio of one share of our common stock per purchase
right. Immediately upon the taking of that action by our board of directors, the
right to exercise the purchase rights will terminate and each purchase right
will then represent only the right to receive the appropriate number of shares
of common stock.
Whenever we become obligated to issue shares of common stock upon the
exercise of or in exchange for purchase rights, we may substitute shares of
preference stock, at a ratio of one one-thousandth of a share of preference
stock for each share of common stock.
If we are acquired in a merger or other similar business combination entered
into while:
- the acquiring company or any of its affiliates is in control of our board
of directors or 50% or more of our assets; or
- assets representing 50% or more of our operating income or cash flow are
transferred to an acquiring company or any of its affiliates,
then we are required to take all necessary action to ensure that the purchase
rights will "flip-over" and entitle each holder of a purchase right to purchase
capital stock of the acquiring company having a market value equal to twice the
purchase price of the preference stock otherwise purchasable pursuant to the
purchase right.
At any time prior to the earlier of a flip-in date and the tenth anniversary
of the rights agreement, our board of directors may redeem the purchase rights
in whole, but not in part, at
7
<PAGE>
a price of $0.01 per purchase right. Under certain circumstances the rights
agreement may be amended by our board of directors without approval from our
stockholders.
The purchase rights have an anti-takeover effect. Specifically, the purchase
rights may cause substantial dilution to a person or group that attempts to
acquire a substantial number of shares of our common stock without board
approval. The purchase rights will not interfere with any merger or other
business combination with a third party approved by our board of directors,
because the board of directors may, at any time prior to a flip-in date, redeem
the purchase rights as described above or amend the rights agreement to render
it inapplicable to a specific transaction.
ADDITIONAL ANTI-TAKEOVER DEFENSES
A number of provisions in our governing corporate documents may have the
effect of discouraging other companies from acquiring large blocks of our common
stock or delaying or preventing a change of control of UtiliCorp. For instance,
because our certificate of incorporation authorizes our board of directors to
issue additional capital stock without stockholder approval, the board of
directors could issue additional shares of stock to discourage a change of
control of UtiliCorp. Furthermore, the absence of cumulative voting rights could
discourage accumulations of large blocks of our common stock by purchasers
seeking representation on our board of directors.
Other provisions in our certificate of incorporation are designed to
discourage attempts to obtain control of UtiliCorp in a transaction not approved
by our board of directors. Such provisions include:
- an 80% stockholder vote requirement to remove the entire board of
directors;
- a prohibition against the removal of individual directors without cause;
- a requirement that the board of directors be divided into three classes,
with one class elected each year for a three-year term;
- an 80% stockholder vote requirement to amend provisions of the certificate
of incorporation relating to our board of directors;
- an 80% stockholder vote requirement to approve certain business
transactions, unless certain minimum price conditions are met;
- an 80% stockholder vote requirement to amend the above-listed provisions;
- a requirement that stockholder action may be taken only at an annual or
special meeting; and
- a requirement that special meetings may be called by not less than a
majority of the stockholders.
Our bylaws also contain provisions that may have an anti-takeover effect,
including:
- advance notice requirements for stockholder nominations to our board of
directors; and
- a requirement that nominating stockholders provide information comparable
to that which we would be required to provide under federal securities
laws.
These bylaw provisions could enable us to delay undesirable stockholder actions
in order to give us more time and information to adequately respond.
As previously described, our stockholder rights plan also has an
anti-takeover effect. Severance agreements we have entered into with certain of
our management employees may have anti-takeover effects as well. Such severance
agreements provide we must pay certain benefits if the employees are terminated
without good cause or resign for good reason, as defined in the agreements,
within three years after a change of control of UtiliCorp.
8
<PAGE>
TRANSFER AGENT AND REGISTRAR
The co-transfer agents for our common stock are:
- First Chicago Trust Company of New York, New York;
- UMB Bank, N.A., Kansas City, Missouri; and
- The R-M Trust Company, Toronto, Ontario, Canada.
The registrar for the common stock is First Chicago Trust Company of New
York, New York. Our common stock is listed on the New York, Pacific and Toronto
Stock Exchanges, and unless the prospectus supplement accompanying this
prospectus states otherwise, the common stock offered under this prospectus will
be listed on those exchanges.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time in one or more series, under
an Indenture dated as of November 1, 1990, as supplemented, between us and The
First National Bank of Chicago, as the trustee. The indenture has been filed as
an exhibit to the registration statement of which this prospectus is a part. The
following description of certain provisions of the indenture is a summary and is
not complete. You should refer to all of the provisions of the indenture,
including the definitions of certain terms contained in the indenture. Wherever
particular sections of the indenture are referred to in this prospectus, those
sections are incorporated by reference as part of the statements made.
GENERAL
The indenture does not limit the aggregate principal amount of the debt
securities or the aggregate principal amount of any particular series of debt
securities that we may issue under the indenture. The indenture states that we
may issue debt securities from time to time in one or more series. The debt
securities will be unsecured obligations and will rank equally with all of our
other unsecured and unsubordinated indebtedness.
The specific terms of each series of debt securities will be set forth in
the prospectus supplement relating to that series, including the following
terms, if possible:
- the title of the debt securities;
- the aggregate principal amount of the series of debt securities and any
limit on the aggregate principal amount of that series;
- the price (expressed as a percentage of the aggregate principal amount) at
which we will issue the series of debt securities;
- the maturity date or dates for the series of debt securities;
- the interest rate or rates (which may be fixed or variable) per annum for
the series of debt securities, if any, or any method by which the interest
rate or rates, will be determined;
- the date or dates:
- from which the interest, if any, will accrue;
- on which the interest, if any, will be payable;
- on which payment of the interest, if any, will commence; and
- of record for any interest payments;
- the person, if different than the registered holder as of the record date,
to whom any interest will be payable;
- the dates, if any, on which and the price at which the series of debt
securities may be redeemed or purchased under any mandatory sinking fund
provisions, and the other detailed terms and provisions of the sinking
funds;
- the date, if any, after which and the price at which we or any holder of
the debt securities may redeem the debt securities
9
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and other detailed terms and provisions of the optional redemptions;
- any additional restrictive covenants included in the indentures solely for
the benefit of the series of debt securities;
- any additional events of default (as defined below) solely with respect to
the series of debt securities;
- the currency or currencies in which we will pay the principal of (and
premium if any) and interest, if any, on the series;
- the index, if any, used to determine the amount of principal of (and
premium, if any) or interest, if any, on the series of debt securities;
- whether we will use a global security with respect to the series of debt
securities, the name of the depository for the global security and the
terms, if any, upon which interests in the global security may be
exchanged for definitive debt securities; and
- any additional terms of the series of the debt securities.
Unless the prospectus supplement states otherwise, we will pay the principal
of, and the premium and interest, if any, on the series of debt securities at
the office or agency we maintain in New York, New York for that purpose. In
addition, the transfer or exchange of the debt securities will be registerable
at that same office. We may, however, pay interest by check mailed to the
address as it appears on the security register of any person entitled to payment
of interest. (Sections 301, 305 and 1002).
Unless the prospectus supplement states otherwise, we will only issue the
debt securities in registered form without coupons and in denominations of
$1,000 and integral multiples of $1,000. (Section 302). No service charge will
be made for any registration of transfer or exchange of the debt securities, but
we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the transfer or exchange.
(Section 305).
We may issue debt securities as original issue discount securities (as
defined below) meaning that they will be sold at a substantial discount below
their principal amount. We will describe special federal income tax, accounting
and other considerations applicable to original issue discount securities in the
prospectus supplement. "Original issue discount security" is any security that
provides for the acceleration of the maturity of an amount less than the
principal amount of the security upon the occurrence and continuance of an event
of default. (Section 101).
EVENTS OF DEFAULT
With respect to any series of debt securities, the indenture defines an
event of default as:
- a default in the payment of principal of, (or premium, if any), any debt
security at its maturity;
- a default in the payment of any interest on any debt security for 30 days;
- a default in the payment of any sinking fund installment;
- our failure to perform any other of the covenants or warranties in the
indenture for 60 days after we receive notice of our failure (other than a
covenant or warranty included in the indenture solely for the benefit of a
series of debt securities other than that particular series);
- a default by us under any indebtedness for money we have borrowed
resulting in indebtedness in an aggregate principal amount exceeding
$5,000,000 becoming due prior to maturity, if the acceleration of that
indebtedness is not rescinded within 10 days after notice of such default;
- certain events of bankruptcy, insolvency or reorganization of UtiliCorp;
and
- any other event of default provided with respect to debt securities of
that series. (Section 501).
If any event of default with respect to any series of debt securities at the
time outstanding
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occurs and is continuing, either the trustee or the holders of at least 25% in
principal amount of the outstanding debt securities of that series may, by
notice, declare the principal amount (or, if the debt securities are original
issue discount securities, such portion of the principal amount as may be
specified in the terms of that series) of all debt securities of that series to
be due and payable immediately. Upon certain conditions the holders of a
majority in principal amount of the outstanding debt securities of that series
on behalf of the holders of all debt securities of that series may annul that
declaration and waive past defaults. A declaration may not, however, be annulled
if the default is a default in payment of principal of, or premium or interest,
if any, on the debt securities and other specified defaults unless that default
has been cured. (Sections 502 and 513).
The prospectus supplement relating to each series of outstanding debt
securities which are original issue discount securities will contain the
particular provisions relating to acceleration of the maturity of a portion of
the principal amount of those original issue discount securities if an event of
default occurs and continues.
The indenture states that the trustee will give notice to the holders of any
series of debt securities of a known default if that default is uncured or not
waived. The trustee may decide to withhold a notice of default if it determines
in good faith that withholding of the notice is in the interest of the holders
of the debt securities unless the default is in the payment of principal of (or
premium, if any) or interest, if any, on any debt security of that series, or in
the payment of any sinking fund installment. The trustee may not give notice of
default until 30 days after the occurrence of a default in the performance of a
covenant in the indenture other than for the payment of the principal of (or
premium, if any) or interest, if any, or the deposit of any sinking fund
installment. The term default with respect to any series of outstanding debt
securities for the purpose only of this provision means the happening of any of
the events of default specified in the indenture and relating to such series of
outstanding debt securities, excluding any grace periods and irrespective of any
notice requirements. (Section 602).
The indenture contains a provision entitling the trustee, subject to the
duty of the trustee during default to act with the required standard of care, to
be indemnified by the holders of any series of outstanding debt securities
before proceeding to exercise any right or power under the indenture at the
request of the holders of that series of debt securities. (Section 603). The
indenture states that the holders of a majority in principal amount of
outstanding debt securities of any series may direct the time, method and place
of conducting any proceeding for any remedy available to the trustee, or
exercising any trust or other power conferred on the trustee. The trustee,
however, may decline to act if that direction is contrary to law or the
indenture. (Section 512).
The indenture requires us to annually file with the trustee a certificate
stating that no default exists or identifying any existing default.
DEFEASANCE
At our option, we:
- will be discharged from all obligations with respect to the debt
securities (except for certain obligations including registering the
transfer or exchange of the debt securities, replacing stolen, lost or
mutilated debt securities, maintaining paying agencies and holding monies
for payment in trust); or
- need not comply with certain restrictive covenants of the indenture,
if we deposit with the trustee (and in the case of a discharge, 91 days after
such deposit) money, or U.S. government obligations, or a combination of both,
sufficient to pay all the principal of and interest on the debt securities on
the date those payments are due in accordance with the terms of the debt
securities to and including a redemption date which we irrevocably designate for
redemption of the debt securities. To exercise this option, we must meet certain
conditions, including delivering to the trustee an opinion of counsel stating
that the deposit and related defeasance will not cause the
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holders of the debt securities to recognize income, gain or loss for federal
income tax purposes. (Sections 403 and 1008).
MODIFICATION OF THE INDENTURE
With respect to any series of debt securities we and the trustee may add
provisions to or change or eliminate any of the provisions of the indenture
relating to that series if holders of at least 66 2/3% in principal amount of
that series of debt securities, voting as a class, consent. We and the trustee
cannot, however, modify the indenture to:
- change the stated maturity of any debt security;
- reduce the principal amount of, or the rate of interest or any premium on,
any debt security;
- change the place or currency of payment on any debt security;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity of any security;
- reduce the percentage of outstanding debt securities necessary to modify
or amend the indenture; or
- reduce the percentage of aggregate principal amount of outstanding debt
securities necessary to waive compliance with certain provisions of the
indenture or to waive certain covenants and defaults. (Section 902).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Without the consent of the holders of any of the outstanding debt securities
under the indenture, we may:
- consolidate with or merge into any other corporation;
- transfer or lease substantially all of our assets to any person;
- acquire or lease substantially all of the assets of any person; or
- permit any corporation to merge into us, if:
- the successor is a corporation organized under the laws of any
domestic jurisdiction;
- the successor corporation, if other than us, assumes our obligations
on the debt securities and under the indenture; and
- after giving the effect to the transaction, no event of default, and
no event which, after notice or lapse of time, would become an event
of default, will occur. (Section 801).
Certain of the covenants described above will not necessarily afford the
holders protection in the event we are involved in a highly leveraged
transaction, such as a leveraged buyout. However, we must obtain regulatory
approval to issue long-term debt.
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of
outstanding debt securities have given any request, demand, authorization,
direction, notice, consent or waiver under the indenture, the following are
taken into account:
- the portion of the principal amount of an original issue discount security
deemed to be outstanding is that portion of the principal amount that
could be declared to be due and payable upon the occurrence and
continuation of an event of default under the terms of the original issue
discount security as of the date of the determination; and
- debt securities we or any of our affiliates own are not considered to be
outstanding. (Section 101).
REGARDING THE TRUSTEE
We have a bank line of credit with the trustee and maintain depository and
other banking relationships with the trustee.
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DESCRIPTION OF SUBORDINATED DEBENTURES
The following description of our subordinated debentures is a summary and is
not complete. You should refer to the form of subordinated indenture that is
filed as an exhibit to, or incorporated by reference into, the registration
statement and to the Trust Indenture Act.
We may issue subordinated debentures from time to time under the
subordinated indenture. Certain material United States federal income tax
consequences applicable to the offering of the subordinated debentures will be
described in the applicable prospectus supplement.
GENERAL
The subordinated indenture does not limit the aggregate principal amount of
the subordinated debentures or the aggregate principal amount of any series of
subordinated debentures that we may issue under the subordinated indenture. In
addition, the subordinated indenture does not limit us from issuing or incurring
other secured or unsecured debt, whether under the subordinated indenture or any
other indenture or agreement that we may enter into in the future.
The specific terms of each series of subordinated debentures will be set
forth in the applicable prospectus supplement relating to that series, including
the following terms, if possible:
- the title of the subordinated debentures;
- any limit upon the aggregate principal amount of that series of
subordinated debentures;
- the date on which the principal of the subordinated debentures is payable,
or the method of determining such date;
- the rate, if any, at which the subordinated debentures will bear interest
(including any reset rates and the method by which any such rates will be
determined), the date or dates on which we will pay any interest and any
right we have to defer any interest payment;
- the place where, subject to the terms of the subordinated indenture as
described below, we will pay the principal and any premium or interest on
the subordinated debentures, and where, subject to the terms of the
subordinated indenture as described below, we will maintain an office or
agency where subordinated debentures may be presented for registration of
transfer or exchange, and where notices and demands to or upon us in
respect of the subordinated debentures and the subordinated indenture may
be made;
- any period within, any date on which, the price at which and the terms and
conditions upon which we may redeem the subordinated debentures, in whole
or in part, at our option pursuant to any sinking fund or otherwise;
- any obligation of ours to redeem or purchase the subordinated debentures
pursuant to any sinking fund or analogous provision or at the option of a
holder, and the period within which, the price at which, the currency
(including currency units) in which and the other terms and conditions
upon which we will redeem or purchase the subordinated debentures, in
whole or in part, pursuant to such obligation;
- the denominations in which we will issue the subordinated debentures;
- if other than in U.S. dollars, the currency (including currency units) in
which we will pay the principal of or any premium or interest on the
subordinated debentures, or in which the subordinated debentures will be
denominated;
- if other than the principal amount, the portion of the principal amount of
the subordinated debentures that we will pay upon declaration of
acceleration of the maturity thereof;
- any additional events of default or covenants pertaining to that series of
subordinated debentures;
- any index used to determine the amount of payments of principal of and
premium,
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if any, on the subordinated debentures and the manner to determine such
amounts;
- subject to the terms described below, whether we will issue the
subordinated debentures in whole or in part in global form and, in such
case, the depositary for such global subordinated debentures;
- the appointment of any trustee, registrar, paying agent;
- the terms and conditions of any obligation or right of ours or any holder
to convert or exchange subordinated debentures into other securities; and
- any other terms of the subordinated debentures not inconsistent with the
provisions of the subordinated indenture.
SUBORDINATION
The subordinated indenture provides that the subordinated debentures are
subordinate and junior in right of payment to all of our senior indebtedness (as
defined below) as provided in the subordinated indenture. We cannot make any
payment of principal of (including redemption and sinking fund payments),
premium, if any, or interest on, the subordinated debentures if:
- any senior indebtedness is not paid when due;
- any applicable grace period with respect to any default under any senior
indebtedness has ended and such default has not been cured or waived; or
- the maturity of any senior indebtedness has been accelerated because of a
default.
Upon any distribution of our assets to creditors upon any dissolution,
winding-up, liquidation or reorganization, whether voluntary or involuntary or
in bankruptcy, insolvency, receivership or other proceedings, all principal of,
and premium, if any, and interest due or to become due on, all senior
indebtedness must be paid in full before the holders of the subordinated
debentures will receive or retain any payment. The rights of the holders of the
subordinated debentures will be subrogated to the rights of the holders of
senior indebtedness to receive payments or distributions applicable to senior
indebtedness until all amounts owing on the subordinated debentures are paid in
full. However, since the vast majority of our senior indebtedness currently is
not secured and ranks equally with our other unsecured indebtedness, rights of
subrogation currently do not improve the position of the holders of the
subordinated debentures in relation to the holders of any of our other unsecured
indebtedness.
The term "senior indebtedness" means the principal of, premium, if any,
interest on and any other payment due pursuant to any of the following, whether
outstanding at the date of execution of the subordinated indenture or thereafter
incurred, created or assumed:
- all of our indebtedness evidenced by notes, debentures, bonds or other
securities we sold for money;
- all indebtedness of others of the kinds described in the preceding bullet
assumed by or guaranteed in any manner by us or in effect guaranteed by
us; and
- all renewals, extensions or refundings of indebtedness of the kinds
described in any of the preceding two bullets;
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is equal with
the subordinated debentures. The senior indebtedness shall continue to be senior
indebtedness and entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of such senior
indebtedness.
The subordinated indenture does not limit the aggregate amount of senior
indebtedness that we may issue.
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DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable prospectus supplement, we will
only issue the subordinated debentures in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
Once we issue the subordinated debentures, we will keep at one of our
offices or agencies a register in which, subject to such reasonable regulations
as we may prescribe, we will provide for the registration and transfer of the
subordinated debentures. That office or agency will be appointed the security
registrar for the purpose of registering and transferring the subordinated
debentures. We will appoint the subordinated indenture trustee as securities
registrar under the subordinated indenture.
The holder of any registered subordinated debenture may exchange the
subordinated debenture, at its option, for registered subordinated debentures of
the same series having the same stated maturity date and original issue date, in
any authorized denominations, in like tenor and in the same aggregate principal
amount. Such holder may exchange such subordinated debentures by surrendering
them at the office or agency we appoint as security registrar for the
subordinated debentures. The subordinated debentures may be presented for
exchange or for registration of transfer (with the form of transfer endorsed
thereon or a satisfactory and duly executed written instrument of transfer), at
the office of the securities registrar, without service charge and upon payment
of any taxes and other governmental charges as described in the subordinated
indenture.
When a holder of a registered subordinated debenture surrenders a
subordinated debenture to be registered for transfer, we will execute, and the
subordinated indenture trustee will authenticate and deliver to the holder, in
the name of the designated transferee or transferees, one or more new registered
subordinated debentures of the same series having the same stated maturity date
and original issue date, in any authorized denominations and of like tenor and
aggregate principal amount.
If any subordinated debentures of any series are redeemed, we will not be
required to issue, register the transfer of or exchange any such subordinated
debentures during the 15 business days immediately preceding the date upon which
notice of such redemption is given (which notice will identify the serial
numbers of the subordinated debentures being redeemed). Furthermore, if any
registered subordinated debentures are selected to be either partially or fully
redeemed, then we will not be required to issue, register or exchange any such
subordinated debentures (except for the unredeemed portion of any subordinated
debenture being redeemed in part).
GLOBAL SUBORDINATED DEBENTURES
Unless otherwise specified in the applicable prospectus supplement, we may
issue the subordinated debentures in whole or in part in global form that will
be deposited with, or on behalf of, a depositary identified in the applicable
prospectus supplement. Global subordinated debentures may be issued only in
fully registered form and in either temporary or permanent form. Unless and
until a global subordinated debenture is exchanged in whole or in part for
individual subordinated debentures, the depositary holding such global
subordinated debenture may transfer the global subordinated debenture only to
its nominee or successor depositary (or vice versa) and only as a whole. Unless
otherwise indicated in the applicable prospectus supplement for the subordinated
debentures, the depositary for the global subordinated debentures will be The
Depository Trust Company. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of the securities in
certificated form. Such limits and laws may impair the ability to transfer
beneficial interests in global subordinated debentures.
The specific terms of the depositary arrangement for the subordinated
debentures will be described in the applicable prospectus supplement. We expect
that the applicable depositary or its nominee, upon receipt of any payment of
principal, premium or interest in respect of a permanent global subordinated
debenture, immediately will credit the accounts
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of its participants with payments in amounts proportionate to their respective
beneficial interests in the aggregate principal amount of such global
subordinated debenture as shown on the records of the depositary or its nominee.
We also expect that payments by participants to owners of beneficial interests
in a global subordinated debenture held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name." Such participants will be responsible for those payments.
Unless otherwise specified in the applicable prospectus supplement, if at
any time the applicable depositary is unwilling, unable or ineligible to
continue as depositary for the subordinated debentures, we will appoint a
successor depositary with respect to the subordinated debentures. If we do not
appoint a successor depositary within 90 days after we receive such notice or
become aware of such ineligibility, we will issue individual subordinated
debentures of such series in exchange for the global subordinated debenture
representing such individual subordinated debentures. In addition, unless
otherwise specified in the applicable prospectus supplement, we may determine at
any time and in our sole discretion, subject to any limitations described in the
applicable prospectus supplement, to have the subordinated debentures no longer
represented by one or more global subordinated debentures. In that event, we
will issue individual subordinated debentures of such series in exchange for the
global subordinated debenture or global subordinated debentures. Furthermore, if
we so specify with respect to the subordinated debentures, a beneficial owner
may receive, on terms acceptable to us, the subordinated indenture trustee and
the depositary, individual subordinated debentures in exchange for its
beneficial interests, subject to any limitations described in the applicable
prospectus supplement. In that case, a beneficial owner will be entitled to
physical delivery of individual subordinated debentures equal in principal
amount to its beneficial interest and to have the subordinated debentures
registered in its name. We will issue individual subordinated debentures so
issued in denominations of $25 and integral multiples thereof unless otherwise
indicated in the applicable prospectus supplement or otherwise specified by us.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, we will
pay the principal of and any premium or interest on the subordinated debentures
at the office of the subordinated indenture trustee or at the office of any
paying agent as we may designate in the applicable prospectus supplement. We may
at any time designate additional paying agents or rescind the designation of any
paying agent.
Unless otherwise indicated in the applicable prospectus supplement, we will
pay any interest on a subordinated debenture to the person or entity in whose
name the subordinated debenture is registered at the close of business on the
regular record date for such interest, except in the case of interest which is
payable, but is not punctually paid or duly provided for, on any interest
payment date. If we elect, we may make payment of this defaulted interest:
- to the persons in whose names the subordinated debentures are registered
at the close of business on a special record date for the payment of the
defaulted interest, which will be fixed as provided in the subordinated
indenture; or
- in any other lawful manner not inconsistent with the requirements of any
securities exchange on which we may list such subordinated debentures, and
upon such notice as may be required by such exchange, if, after we notify
the subordinated indenture trustee of the proposed payment, the
subordinated indenture trustee deems such manner of payment to be
practicable.
OPTION TO DEFER INTEREST PAYMENTS
If so provided in the applicable prospectus supplement, so long as an event
of default with respect to the subordinated debentures has not occurred and is
not continuing, we will have the right, at any time during the term of the
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subordinated debentures, to defer the payment of interest for such number of
consecutive interest payment periods as may be specified in the applicable
prospectus supplement, subject to the terms, conditions and covenants, if any,
specified in such prospectus supplement. At the end of each extension period, we
will pay all interest accrued and unpaid, together with interest thereon
compounded quarterly at the rate specified for the subordinated debentures, to
the extent permitted by applicable law.
During any extension period, we may not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to any of our capital
stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities that rank equally with or junior
in interest to the subordinated debentures or make any guarantee payments
with respect to any guarantee by us of the debt securities of any
subsidiary of ours if such guarantee ranks equally with or junior in
interest to the subordinated debentures.
However, even during an extension period, we may:
- purchase or acquire our capital stock in connection with the satisfaction
by us of our obligations under any employee benefit plans or pursuant to
any contract or security outstanding on the first day of any extension
period requiring us to purchase our capital stock;
- reclassify our capital stock or exchange one class or series of our
capital stock for another class or series of our capital stock;
- purchase fractional interests in shares of our capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged;
- declare dividends or distributions in our capital stock;
- redeem or repurchase any rights pursuant to a rights agreement; and
- make payments under the guarantee related to the trust preferred
securities.
Prior to the termination of any extension period, we may further defer
payments of interest by extending the extension period but the total duration of
any extension period may not exceed 20 consecutive quarters or extend beyond the
stated maturity of the subordinated debentures. Once any extension period
terminates and we have paid all amounts then due, we may commence a new
extension period, subject to the terms set forth in this section. No interest
will be due and payable during an extension period. If the property trustee of
the Trust is the sole holder of the subordinated debentures, we will give the
regular trustees of the Trust and the property trustee of the Trust notice of
our selection of such extension period one business day prior to the earlier of:
- the date distributions on the trust preferred securities are payable; or
- the date the regular trustees of the Trust are required to give notice, if
applicable, to the NYSE (or other applicable self-regulatory organization)
or to holders of the trust preferred securities of the record or payment
date of such distribution.
The regular trustees of the Trust will give notice of our selection of such
extension period to the holders of the trust preferred securities. If the
property trustee of the Trust is not the sole holder of the subordinated
debentures, we will give the holders of the subordinated debentures notice of
our selection of such extension period ten business days prior to the earlier
of:
- the interest payment date; or
- the date upon which we are required to give notice, if applicable, to the
NYSE (or other applicable self-regulatory organization) or to holders of
the subordinated debentures as of the record or payment date of such
related interest payment.
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MODIFICATION OF SUBORDINATED INDENTURE
From time to time, we and the subordinated indenture trustee may modify the
subordinated indenture without the consent of any holders of subordinated
debentures with respect to certain matters, including:
- to evidence the succession of another corporation to UtiliCorp and the
assumption by any such successor of our covenants in the subordinated
indenture and the subordinated debentures;
- to add to our covenants for the benefit of the holders of the subordinated
debentures, or to surrender any right or power therein conferred upon us;
- to cure any ambiguity or correct or supplement any provision that may be
defective or inconsistent with any other provision of the subordinated
indenture, provided that such action will not adversely affect the
interests of the holders of the subordinated debentures in any material
respect;
- to conform the subordinated indenture to any amendment of the Trust
Indenture Act;
- to add any additional events of default;
- to change or eliminate any provisions of the subordinated indenture,
provided that any such change or elimination will become effective only
when there is no security outstanding of any series prior to the execution
of such modification that is entitled to the benefit of such provision;
- to secure the subordinated debentures;
- to establish the form or terms of securities of any series and any related
coupons as permitted by the subordinated indenture; or
- to evidence or provide for the acceptance of appointment of a successor
subordinated indenture trustee with respect to the securities of one or
more series, to contain such provisions necessary to confirm that all the
rights, powers, trusts and duties that the predecessor subordinated
indenture trustee is not retiring will continue to be vested in the
predecessor subordinated indenture trustee, and to add to or change any
subordinated indenture provisions necessary to provide for or facilitate
the administration of the trusts by more than one subordinated indenture
trustee.
In addition, we and the subordinated indenture trustee may modify certain
rights, covenants and obligations of ours and the rights of holders of the
subordinated debentures under the subordinated indenture with the written
consent of the holders of at least a majority in aggregate principal amount of
subordinated debentures. However, unless each affected
holder of subordinated debentures consents, we and the subordinated indenture
trustee may not:
- extend the maturity of the subordinated debentures;
- reduce the interest rate or extend the time for payment of interest;
- change the optional redemption or repurchase provisions in a manner
adverse to any holder of subordinated debentures;
- otherwise modify the terms of payment of the principal of, or interest (or
premium, if any) on, the subordinated debentures; or
- impair any holder's right to bring a suit for the payment of any
principal, interest, or premium, if any, on the subordinated debentures on
or after the stated maturity or redemption date for the subordinated
debentures;
- reduce the percentage required for modification.
SUBORDINATED INDENTURE EVENTS OF DEFAULT
Any one or more of the following events that has occurred and is continuing
constitutes an event of default under the subordinated indenture (whatever the
reason for such event of
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default and whether it is voluntary or involuntary or effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
- we fail to pay any interest on any subordinated debenture for a period of
30 days after such interest becomes due and payable (subject to a valid
deferral of interest payments during an extension period);
- we fail to pay the principal of (or premium, if any, on) the subordinated
debentures for a period of three business days after such principal (or
premium) becomes due, whether at maturity, upon redemption, by declaration
or otherwise;
- we fail to deposit any sinking fund payment for a period of three business
days after such deposit becomes due (if applicable to the subordinated
debentures);
- we fail to observe or perform any other covenant or warranty under the
subordinated indenture (other than a covenant or warranty included in or
pursuant to the subordinated indenture solely for the benefit of one or
more series of debt securities other than the subordinated debentures) for
a period of 60 days after written notice has been given, by registered or
certified mail, to us by the subordinated indenture trustee, or to us and
the subordinated indenture trustee by the holders of at least 25% in
principal amount of the subordinated debentures;
- we fail to pay in excess of $5 million of the principal or interest on any
indebtedness under any bond, subordinated debenture, note or other
evidence of indebtedness for money we have borrowed (including a default
with respect to debt securities of any series other than that series) or
under any mortgage, subordinated indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money we have borrowed, whether such indebtedness now
exists or shall hereafter be created, when due and payable after the
expiration of any applicable grace period with respect thereto or shall
have resulted in such indebtedness in an amount in excess of $5 million
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or
annulled within a period of 90 days after there shall have been given, by
registered or certified mail, to us by the subordinated indenture trustee
or to us and the subordinated indenture trustee by the holders of at least
25% in principal amount of the subordinated debentures;
- certain events in bankruptcy, insolvency or reorganization of UtiliCorp;
and
- any other event of default with respect to the subordinated debentures.
The holders of not less than a majority in outstanding principal amount of
the subordinated debentures have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the subordinated
indenture trustee. The subordinated indenture trustee or the holders of not less
than 33% in aggregate outstanding principal amount of the subordinated
debentures may declare the principal due and payable immediately upon an event
of default. The holders of a majority in aggregate outstanding principal amount
of the subordinated debentures may annul such declaration and waive the default
if the default (other than the non-payment of the principal of subordinated
debentures that has become due solely by such acceleration) has been cured and
there has been deposited with the subordinated indenture trustee:
- a sum sufficient to pay all overdue interest and all installments of
principal due otherwise than by acceleration;
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- interest upon overdue interest at the rates prescribed in the subordinated
debentures (to the extent lawful); and
- all sums paid or advanced by the subordinated indenture trustee.
The holders of not less than a majority in outstanding principal amount of
the subordinated debentures affected thereby may waive, on behalf of the holders
of all of the subordinated debentures, any past default under the subordinated
indenture except for a default:
- in the payment of the principal of or interest on any subordinated
debenture (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the subordinated indenture trustee);
or
- in respect of a covenant or provision that cannot be modified or amended
without the consent of the holder of each outstanding subordinated
debenture affected thereby.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The subordinated indenture provides that we may not consolidate with or
merge into any other person or entity or convey, transfer or lease our
properties and assets substantially as an entirety to any person unless:
- the corporation formed by any such consolidation or continuing in such
merger, or the person that acquires by conveyance or transfer, or that
leases, our properties and assets substantially as an entirety is a
corporation organized and existing under the laws of any domestic
jurisdiction and expressly assumes, our obligations under the subordinated
debentures and the subordinated indenture;
- immediately after giving effect to such transaction, no event of default,
and no event that, after notice or lapse of time, would become an event of
default under the subordinated indenture, will have happened and be
continuing; and
- we deliver to the subordinated indenture trustee an officers' certificate
and an opinion of counsel, each stating that such consolidation, merger,
conveyance, transfer or lease complies with the subordinated indenture and
that all conditions precedent set forth in the subordinated indenture
relating to such transaction have been complied with.
SATISFACTION AND DISCHARGE
The subordinated indenture provides that:
- when all subordinated debentures not previously delivered to the
subordinated indenture trustee for cancellation:
- have become due and payable;
- will become due and payable at their stated maturity within one year;
or
- are to be called for redemption within one year under arrangements
satisfactory to the subordinated indenture trustee for the giving of
notice of redemption by the subordinated indenture trustee in our
name, and at our expense; and
- we deposit or cause to be deposited with the subordinated indenture
trustee, as trust funds in trust dedicated solely for such purpose, an
amount in the currency in which the subordinated debentures are payable
sufficient to pay and discharge the entire indebtedness on the
subordinated debentures not previously delivered to the subordinated
indenture trustee for cancellation, for the principal (and premium, if
any) and interest to the date of the deposit or to the stated maturity, as
the case may be,
then the subordinated indenture will cease to be of further effect (except as to
our obligations to pay all other sums due pursuant to the subordinated indenture
and to provide the officers' certificates and opinions of counsel described
therein), and we will be deemed to have satisfied and discharged the
subordinated indenture. At our expense the
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subordinated indenture trustee will execute proper instruments acknowledging
such satisfaction and discharge.
REDEMPTION
Unless otherwise indicated in the applicable prospectus supplement, the
subordinated debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, we may
redeem, at our option, the subordinated debentures in whole at any time or in
part from time to time, at the redemption price set forth in the applicable
prospectus supplement plus accrued and unpaid interest to the date fixed for
redemption. If the subordinated debentures can only be redeemed on or after a
specified date or upon the satisfaction of additional conditions, then the
applicable prospectus supplement will specify such date or describe such
conditions.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of subordinated debentures to
be redeemed at such holder's registered address. Unless we default in the
payment of the redemption price, interest will cease to accrue on the
subordinated debentures or portions thereof called for redemption on and after
the redemption date.
GOVERNING LAW
The subordinated indenture and the subordinated debentures will be governed
by and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE SUBORDINATED INDENTURE TRUSTEE
The subordinated indenture trustee will have and be subject to all the
duties and responsibilities imposed upon an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the subordinated indenture trustee
has no obligation to exercise any of its rights or powers under the subordinated
indenture at the request or direction of any holder of a subordinated debenture,
unless the subordinated indenture trustee is offered reasonable security or
indemnity by such holder against the costs, expenses and liabilities that might
be incurred thereby. The subordinated indenture trustee is not required to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers, if the subordinated indenture trustee reasonably believes that
repayment of funds or adequate indemnity is not reasonably assured to it.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The following description of certain terms of the trust preferred securities
is a summary and is not complete. You should refer to the Trust Indenture Act
and the form of the amended and restated declaration of trust, including
definitions of certain terms used therein, that is filed as an exhibit to, or
incorporated by reference into, the registration statement.
The regular trustees, on behalf of the Trust and pursuant to the declaration
of trust, will issue one class of trust preferred securities and one class of
trust common securities. The trust securities will represent undivided
beneficial ownership interests in the assets of the Trust.
GENERAL
Except as described below, the trust preferred securities will rank equally,
and payments will be made thereon proportionately, with the trust common
securities. The property trustee of the Trust will hold legal title to the debt
securities in trust for the benefit of the holders of the trust securities. We
will execute a guarantee agreement for the benefit of the holders of the trust
preferred securities. The guarantee will not guarantee the payment of
distributions (as defined below) or any amounts payable on redemption or
liquidation of the trust preferred securities when the Trust does not have funds
on hand available to make such payments. Certain material United States federal
income tax consequences and special
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considerations applicable to the trust preferred securities will be described in
the applicable prospectus supplement.
DISTRIBUTIONS
Distributions on each trust preferred security will accumulate and be
payable at a rate specified in the applicable prospectus supplement. The amount
of distributions payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days elapsed per
30-day month unless otherwise specified in the applicable prospectus supplement.
Distributions that are in arrears will accumulate additional distributions at
the rate per annum if and as specified in the applicable prospectus supplement.
The term "distributions" means cumulative cash distributions that accumulate at
the per annum rate specified in the applicable prospectus supplement, together
with any additional amounts unless otherwise stated.
Unless otherwise specified in the applicable prospectus supplement,
distributions on the trust preferred securities will be cumulative, will
accumulate from the date of original issuance and will be payable on such dates
as are specified in the applicable prospectus supplement. If the date on which
any distributions on the trust securities are payable is not a business day (as
defined below), then payment of such distributions will be made on the next
business day (without any interest or other payment in respect of any such
delay), provided that if such next business day falls in the next calendar year,
then payment of such distributions will be made on the business day immediately
preceding the payment date. A "business day" means any day other than a Saturday
or Sunday or a day on which banking institutions in New York City are authorized
or required by law or executive order to remain closed, or a day on which the
indenture trustee, or the principal office of the property trustee, is closed
for business.
If provided in the applicable prospectus supplement, we will have the right
under the indenture to defer payments of interest on the debt securities from
time to time by extending the applicable interest payment period for a period or
periods that will be specified in the applicable prospectus supplement. If we
exercise our right to defer interest payments on the debt securities, then any
payments of distributions on the trust preferred securities also would be
deferred. During an extension period, interest will continue to accrue on the
debt securities (compounded quarterly), and, as a result, distributions would
continue to accumulate at the rate per annum if and as specified in the
applicable prospectus supplement. During any extension period, we may not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our capital
stock;
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities that rank equally with or junior
in interest to the debt securities or make any guarantee payments with
respect to any guarantee by us of the debt of any subsidiary of ours if
such guarantee ranks equally with or junior in interest to the debt
securities.
However, even during an extension period, we may:
- purchase or acquire our capital stock in connection with the satisfaction
by us of our obligations under any employee benefit plans or pursuant to
any contract or security outstanding on the first day of any extension
period requiring us to purchase our capital stock;
- reclassify our capital stock or exchange or convert one class or series of
our capital stock for another class or series of our capital stock;
- purchase fractional interests in shares of our capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged;
- declare dividends or distributions in our capital stock;
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- redeem or repurchase any rights pursuant to a rights agreement; and
- make payments under the guarantee related to the trust preferred
securities.
Prior to the termination of any extension period, we may further extend the
extension period, but the total duration of any extension period may not exceed
20 consecutive quarters or extend beyond the stated maturity of the debt
securities. Once any extension period terminates and we have paid all amounts
then due, we may commence a new extension period, provided that such extension
period together with all extensions thereof may not exceed 20 quarters or extend
beyond the stated maturity of the debt securities. Once an extension period has
terminated, any deferred distributions, including accumulated additional
amounts, will be paid to those holders of record of the trust securities
appearing on the books and records of the Trust on the first record date,
following the termination of such extension period.
It is expected that any revenue available for the payment of distributions
to holders of the trust preferred securities will be limited to payments we make
to the Trust under the debt securities. If we do not make interest payments on
the debt securities, then the property trustee will not have any funds available
to pay distributions on the trust preferred securities. The payment of
distributions (if and to the extent the Trust has funds legally available for
the payment of such distributions and cash sufficient to make such payments) is
guaranteed by us as set forth under "Description of the Guarantee."
The property trustee will pay distributions to the holders of the trust
preferred securities as such holders appear on the Trust's securities register
on the relevant record dates. As long as the trust preferred securities are
represented by one or more global securities, the relevant record dates will be
the close of business on the business day next preceding each distribution date,
unless a different regular record date is established or provided for the
corresponding interest payment date on the debt securities. If any trust
preferred securities are not represented by global securities, then the relevant
record date for such trust preferred securities will be the date, at least 15
days prior to the relevant distribution date, that is specified in the
applicable prospectus supplement.
REDEMPTION OR EXCHANGE
MANDATORY REDEMPTION. Unless otherwise specified in the applicable
prospectus supplement, if the debt securities held by the Trust are repaid or
redeemed in whole or in part, either upon their maturity date or earlier, then
the property trustee will use the proceeds from such repayment or redemption to
redeem trust securities having an aggregate liquidation amount equal to the
aggregate principal amount of the debt securities being repaid or redeemed. The
redemption price per trust security will be equal to the aggregate stated amount
of the trust securities being redeemed plus any accumulated and unpaid
distributions thereon to the date of redemption plus the related amount of the
premium, if any, we paid upon the concurrent redemption of the debt securities.
In the event of a partial redemption, the trust securities will be redeemed
among all of the holders of trust securities on a pro rata basis. Holders of the
trust securities will receive at least 30 days but not more than 60 days notice
of such redemption.
TAX EVENT REDEMPTION. If a tax event (as defined below) occurs and is
continuing, we will have the right to redeem the debt securities in whole (but
not in part) and thereby cause a mandatory redemption of the trust securities in
whole (but not in part) at the redemption price within 90 days following the
occurrence of such tax event. In the event a tax event has occurs and is
continuing and we do not elect to redeem the debt securities (thereby causing a
mandatory redemption of the trust preferred securities) or to liquidate the
Trust (causing the debt securities to be distributed to holders of the trust
securities), the trust preferred securities will remain outstanding.
"Tax event" means the receipt by us and the Trust of an opinion of counsel,
rendered by Blackwell Sanders Peper Martin, LLP or another law firm having a
recognized national tax practice, to the effect that, as a result of any
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amendment to, change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative decision, pronouncement, judicial decision or action interpreting
or applying such laws or regulations, which amendment or change is effective or
such proposed change, pronouncement, action or decision is announced on or after
the date on which the trust preferred securities are issued and sold, there is
more than an insubstantial increase in the risk that:
- the Trust is, or within 90 days of the date of such opinion will be,
subject to United States federal income tax with respect to income
received or accrued on the debt securities;
- interest payable by us on the debt securities is not, or within 90 days of
the date of such opinion, will not be, deductible by us, in whole or in
part, for United States federal income tax purposes; or
- the Trust is, or within 90 days of the date of such opinion will be,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
DISTRIBUTION OF DEBT SECURITIES. Unless otherwise specified in the
applicable prospectus supplement, we will have the right to dissolve the Trust
at any time and, after satisfaction of any liabilities to creditors of the Trust
as provided by applicable law, to cause the debt securities to be distributed
pro rata to the holders of the trust securities in liquidation of the Trust.
After the date fixed for any distribution of debt securities;
- the trust preferred securities will no longer be deemed to be outstanding;
and
- any certificates representing the preferred securities will be deemed to
represent debt securities in a principal amount equal to the liquidation
amount of the trust preferred securities, bearing accrued and unpaid
interest in an amount equal to the accumulated and unpaid distributions on
the trust preferred securities, until such certificates are presented to
the regular trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the trust preferred
securities or for the debt securities that may be distributed in exchange for
trust preferred securities upon dissolution or liquidation of the Trust.
Accordingly, the trust preferred securities that an investor may purchase, or
the debt securities that such investor may receive upon dissolution or
liquidation of the Trust, may trade at a discount to the price that such
investor paid to purchase the trust preferred securities offered hereby.
REDEMPTION PROCEDURES
Any trust preferred securities being redeemed will be redeemed by the Trust
at the applicable redemption price with the proceeds received by the Trust from
our contemporaneous redemption of the debt securities. Redemptions of trust
preferred securities will be made and the applicable redemption price will be
payable only to the extent that the Trust has funds on hand available for the
payment of such redemption price.
If the Trust notifies the holders of the trust preferred securities of a
redemption and if the trust preferred securities to be redeemed are issued in
global form, then on the applicable redemption date, the property trustee will
deposit irrevocably with the depositary for the trust preferred securities funds
sufficient to pay the applicable redemption price, to the extent funds are
available. In addition, the property trustee will give the depositary
irrevocable instructions and authority to pay the redemption price to the
beneficial owners of the trust preferred securities. If the trust preferred
securities are not issued in global form, then the property trustee will pay the
applicable redemption price to the holders of the trust preferred securities by
check mailed to their respective addresses appearing on the register of
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the Trust on the redemption date. In addition, the property trustee will give
such paying agent irrevocable instructions and authority to pay the redemption
price to the holders of the trust preferred securities upon surrender of their
certificates evidencing the trust preferred securities. Notwithstanding the
foregoing, distributions payable on or prior to a redemption date for the trust
preferred securities will be payable to the holders of the trust preferred
securities on the relevant record dates for the related distribution dates. If a
notice of redemption has been given and funds have been deposited as required,
then upon the date of such deposit, all of the rights of the holders of the
trust preferred securities to be redeemed will cease, except for the right of
such holders to receive the redemption price (without interest thereon), and the
trust preferred securities will cease to be outstanding. If the redemption date
is not a business day, then payment of the applicable redemption price will be
made on the next business day (and without any interest or other payment in
respect of any such delay). If, however, the next business day falls in the next
calendar year, then payment of the redemption price will be made on the business
day immediately preceding the redemption date.
If any payments for the redemption of any trust preferred securities are
improperly withheld or refused and not paid either by the Trust or by us
pursuant to the guarantee relating to the trust preferred securities, then
distributions on the trust preferred securities will continue to accumulate at
the then applicable rate, from the redemption date originally established by the
Trust until the date upon which such redemption payments actually are paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the applicable redemption price.
Subject to applicable law (including, without limitation, U.S. federal
securities laws), we or our subsidiaries may purchase at any time and from time
to time outstanding preferred securities by tender, in the open market or by
private agreement.
Any notice of the redemption of trust securities or the distribution of debt
securities in exchange for trust securities will be mailed to each holder of
trust preferred securities being so redeemed at least 30 days but not more than
60 days before the applicable redemption date, at such holder's registered
address. Unless we default in the payment of the redemption price on the debt
securities, interest will cease to accrue on the debt securities or portions
thereof (and distributions will cease to accumulate on the trust preferred
securities or portions thereof) called for redemption on and after the
redemption date.
SUBORDINATION OF TRUST COMMON SECURITIES
The payment of distributions on, and any payment upon redemption of, the
trust preferred securities and trust common securities, as applicable, will be
made pro rata based on their respective liquidation amounts. If, however, an
event of default under the indenture (which is also a "trust enforcement event"
under the declaration of trust) has occurred and continues on any distribution
date or redemption date, then the amounts payable on such date will not be made
on any of the trust common securities, and no other payment on account of the
redemption, liquidation or other acquisition of any trust common securities will
be made until all accumulated and unpaid distributions or redemption payments,
as the case may be, on all of the outstanding trust preferred securities for
which distributions are to be paid or that have been called for redemption, as
the case may be, are fully paid. All funds available to the property trustee
first will be applied to the payment in full in cash of all distributions on, or
the redemption price of, the trust preferred securities then due and payable.
The Trust will not issue any securities or other interests in the assets of the
Trust other than the trust preferred securities and the trust common securities.
In the event that a trust enforcement event has occurred and is continuing
with respect to the trust preferred securities, then we, as sole holder of the
trust common securities, will be deemed to have waived any right to act with
respect to any such trust enforcement event until
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the effect of such trust enforcement event with respect to the trust preferred
securities has been cured, waived or otherwise eliminated. Until such trust
enforcement event has been so cured, waived or otherwise eliminated, the
property trustee will act solely on behalf of the holders of the trust preferred
securities and not on behalf of us, as holder of the trust common securities,
and only the holders of the trust preferred securities will have the right to
direct the property trustee to act on their behalf.
DISSOLUTION OF THE TRUST AND DISTRIBUTIONS UPON DISSOLUTION
Unless otherwise specified in the applicable prospectus supplement, pursuant
to the declaration of trust, the Trust will automatically dissolve upon the
expiration of its term or, if earlier, shall dissolve on the first to occur of:
- certain events of bankruptcy, dissolution or liquidation of UtiliCorp;
- the written direction to the property trustee from us at any time to
dissolve the Trust and to distribute the debt securities in exchange for
the trust securities;
- redemption of all of the trust preferred securities; and
- the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction.
If an early dissolution occurs as described in the first, second and fourth
clauses above, the Trust will be liquidated by the trustees as expeditiously as
the trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
holders of the trust securities in exchange therefor debt securities, unless
such distribution is determined by the property trustee not to be practical, in
which event the holders of the trust securities will be entitled to receive out
of the assets of the Trust distributions in cash or other immediately available
funds to the extent such funds are available for distribution after satisfaction
of the Trust's liabilities to any creditors. The amount of each liquidation
distribution will be equal to the stated liquidation amount plus accumulated and
unpaid distributions thereon to the date of payment. If, however, debt
securities are to be distributed in connection with such liquidation, then the
holders of the trust securities will receive debt securities in an aggregate
principal amount equal to the stated liquidation amount of the trust securities,
with an interest rate identical to the distribution rate of, and accrued and
unpaid interest equal to accumulated and unpaid distributions on, such trust
securities.
If the liquidation distribution can be paid only in part because the Trust
has insufficient assets available to pay the aggregate amount in full, then the
amounts payable directly by the Trust on the trust securities will be paid on a
pro rata basis. We, as sole holder of the trust common securities, will be
entitled to receive liquidation distributions on a pro rata basis with the
holders of the trust preferred securities, except that if an event of default
under the indenture has occurred and is continuing, then the trust preferred
securities will have a preference over the trust common securities with regard
to such liquidation distributions.
TRUST ENFORCEMENT EVENTS; NOTICE
Under the declaration of trust, holders of trust securities have certain
rights in the event that any event of default under the indenture has occurred
and continues with respect to the trust securities issued under the declaration.
If a trust enforcement event has occurred and is continuing, the trust preferred
securities will have a preference over the trust common securities upon
dissolution of the Trust, as described above.
The property trustee will transmit by mail, first class postage prepaid,
notice of each trust enforcement event to the holders of the trust securities
within 90 days of the occurrence of the trust enforcement event. We and the
regular trustees are required to file annually with the property trustee a
certificate as to whether or not we are in compliance with all the conditions
and covenants applicable to us under the declaration of trust as well as any
reports that they may be required to file under the Trust Indenture Act.
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REMOVAL OF TRUSTEES
The holder of the trust common securities may remove any trustee with or
without cause at any time. The removal of a property trustee, however, will not
be effective until a successor trustee possessing the qualifications to act as a
property trustee has accepted an appointment as property trustee in accordance
with the provisions of the declaration of trust.
MERGER OR CONSOLIDATION OF TRUSTEES
Any entity into which the property trustee, the Delaware trustee or any
regular trustee that is not a natural person may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such trustee may be a party, or any entity
succeeding to all or substantially all the corporate trust business of such
trustee, will be the successor of such trustee under the declaration of trust,
provided that such entity is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate with, convert into, amalgamate or merge with
or into, be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below. At our request and with the consent of a majority of the
regular trustees, and without the consent of the holders of the trust preferred
securities, the Delaware trustee or the property trustee, the Trust may
consolidate with, convert into, amalgamate or merge with or into, be replaced by
or convey, transfer or lease its properties substantially as an entirety to a
trust organized under the laws of any state. Such consolidation, conversion,
amalgamation, merger, replacement, conveyance, transfer or lease will be
subject, however, to the following limitations:
- if the Trust is not the successor entity, then the successor entity either
must:
- expressly assume all of the Trust's obligations with respect to the
trust securities; or
- substitute for the trust securities other securities having
substantially the same terms as the trust securities, so long as these
substitute securities rank the same as the trust securities with
respect to distributions and payments upon liquidation, redemption and
otherwise;
- we must expressly appoint a trustee of a successor entity possessing the
same powers and duties as the property trustee as the holder of the debt
securities;
- the trust preferred securities or any substitute securities must be
listed, or any substitute securities must be listed upon notification of
issuance, on any national securities exchange or with any other
organization on which the trust preferred securities are then listed or
quoted;
- such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease must not cause the trust preferred
securities (including any substitute securities) to be downgraded by any
nationally recognized statistical rating organization;
- such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease must not adversely affect the rights,
preferences and privileges of the holders of the trust preferred
securities (including any substitute securities) in any material respect;
- such successor entity must have a purpose substantially identical to that
of the Trust;
- prior to such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease, we must have received an
opinion of independent counsel to the Trust experienced in such matters to
the effect that:
- such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the
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holders of the trust securities (including any substitute securities)
in any material respect;
- following such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity will be required to register as an investment company
under the Investment Company Act; and
- following such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease, the Trust (or the
successor entity) will continue to be classified as a grantor trust
for United States federal income tax purposes;
- we or any permitted successor or assignee must own all of the trust common
securities and must guarantee the obligations of such successor entity
under the substitute securities, at least to the extent provided by the
guarantee related to the trust preferred securities; and
- such successor entity must expressly assume all of the obligations of the
Trust.
Notwithstanding the foregoing, unless holders of 100% in aggregate liquidation
amount of the trust securities give their consent, the Trust will not
consolidate with, convert into, amalgamate or merge with or into, or be replaced
by or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it, if such consolidation,
conversion, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes or would cause each
holder of trust securities not to be treated as owning an undivided beneficial
ownership interest in the debt securities.
VOTING RIGHTS; AMENDMENT OF DECLARATION
Except as provided below and as otherwise required by the declaration of
trust, the Delaware Business Trust Act, the Trust Indenture Act and other
applicable law, the holders of the trust securities will have no voting rights.
Subject to the requirement of the property trustee obtaining a tax opinion
in certain circumstances set forth in the last sentence of this paragraph, the
holders of not less than a majority in aggregate liquidation amount of the trust
preferred securities, voting separately as a class, have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the property trustee, or to direct the exercise of any trust or power conferred
upon the property trustee under the declaration of trust. This includes the
right to direct the property trustee, as holder of the debt securities, to:
- exercise the remedies available to it under the indenture;
- consent to any amendment or modification of the indenture or the debt
securities where such consent will be required; or
- waive any past default and its consequences that is waivable under the
indenture; provided that if an event of default under the indenture has
occurred and is continuing, then the holders of not less than 25% of the
aggregate liquidation amount of the trust preferred securities may direct
the property trustee to declare the principal of and interest on the debt
securities due and payable; and provided further that where a consent or
action under the indenture would require the consent or act of the holders
of more than a majority of the aggregate principal amount of debt
securities affected thereby, the property trustee only may give such
consent or take such action at the direction of the holders of at least
the same proportion in aggregate stated liquidation amount of the
preferred securities.
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The property trustee will notify all holders of the trust preferred securities
of any notice of any event of default under the indenture that it has received
from us. The notice will state that the event of default also constitutes a
trust enforcement event. Except with respect to directing the time, method and
place of conducting a proceeding for a remedy, the property trustee will have no
obligation to take any of the actions described in the first and second bullets
above unless it first obtains an opinion of independent tax counsel experienced
in such matters to the effect that, as a result of such action, the Trust will
not fail to be classified as a grantor trust for United States federal income
tax purposes and that each holder of trust securities will be treated as owning
an undivided beneficial ownership interest in the debt securities.
In the event the consent of the property trustee, as the holder of the debt
securities, is required under the indenture with respect to any amendment or
modification of the indenture, the property trustee will request the direction
of the holders of the trust securities with respect to such amendment or
modification and will vote with respect to such amendment or modification as
directed by the holders of a majority in stated liquidation amount of the trust
securities voting together as a single class; provided that where a consent
under the indenture would require the consent of the holders of more than a
majority of the aggregate principal amount of the debt securities, the property
trustee only may give such consent at the direction of the holders of at least
the same proportion in aggregate stated liquidation amount of the trust
securities. The property trustee will not take any action in accordance with the
directions of the holders of the trust securities unless the property trustee
has obtained an opinion of independent tax counsel to the effect that the Trust
will not be classified as other than a grantor trust for United States federal
income tax purposes as a result of such action, and that each holder of trust
securities will be treated as owning an undivided beneficial ownership interest
in the debt securities.
A waiver of an event of default under the indenture with respect to the debt
securities will constitute a waiver of the corresponding trust enforcement
event.
Any required approval or direction of holders of trust preferred securities
may be given at a separate meeting of holders of preferred securities convened
for such purpose, at a meeting of all of the holders of preferred securities or
pursuant to written consent. The regular trustees will cause a notice of any
meeting at which holders of trust preferred securities are entitled to vote to
be mailed to each holder of record of trust preferred securities. Each notice
will include a statement setting forth:
- the date of the meeting;
- a description of any resolution proposed for adoption at the meeting on
which the holders are entitled to vote; and
- instructions for the delivery of proxies.
No vote or consent of the holders of trust preferred securities will be
required for the Trust to redeem and cancel trust preferred securities or
distribute debt securities in accordance with the declaration of trust and the
terms of the trust securities.
Notwithstanding that holders of trust preferred securities are entitled to
vote or consent under any of the circumstances described above, any of the trust
preferred securities that are owned at such time by us, the trustees or any
entity directly or indirectly controlled by, or under direct or indirect common
control with, us or any trustee will not be entitled to vote or consent and
will, for purposes of such vote or consent, be treated as if such trust
preferred securities were not outstanding.
Except during the continuance of an event of default under the indenture,
the holders of the trust preferred securities will have no rights to appoint or
remove the trustees, who may be appointed, removed or replaced solely by us as
the holder of all of the common trust securities. If an event of default has
occurred and is continuing, the property trustee and the Delaware trustee may be
removed and replaced
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by the holders of a majority in liquidation amount of the trust preferred
securities.
GLOBAL PREFERRED SECURITIES
Unless otherwise specified in the applicable prospectus supplement, the
trust preferred securities may be issued in whole or in part in global form that
will be deposited with, or on behalf of, a depositary identified in the
applicable prospectus supplement. Global trust preferred securities may be
issued only in fully registered form and in either temporary or permanent form.
Unless and until a global trust preferred security is exchanged in whole or in
part for the individual trust preferred securities represented thereby, the
depositary holding the global trust preferred security may transfer the global
trust preferred security only to its nominee or successor depositary (or vice
versa) and only as a whole. Unless otherwise indicated in the applicable
prospectus supplement for the trust preferred securities, the depositary for the
global trust preferred securities will be The Depository Trust Company. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. Such limits and laws
may impair the ability to transfer beneficial interests in global trust
preferred securities.
The specific terms of the depositary arrangement for the trust preferred
securities will be described in the applicable prospectus supplement. We expect
that the applicable depositary or its nominee, upon receipt of any payment of
liquidation amount, premium or distributions in respect of a permanent global
trust preferred security representing any of the trust preferred securities,
immediately will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the aggregate
principal amount of such global trust preferred security as shown on the records
of the depositary or its nominee. We also expect that payments by participants
to beneficial owners will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of customers
in bearer form or registered in "street name." Such payments will be the
responsibility of such participants.
Unless otherwise specified in the applicable prospectus supplement, if at
any time the depositary is unwilling, unable or ineligible to continue as a
depositary for the trust preferred securities, the Trust will appoint a
successor depositary with respect to the trust preferred securities. If a
successor depositary is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that the trust preferred securities be represented by one or more
global trust securities will no longer be effective, and a regular trustee on
behalf of the Trust will execute, and the property trustee will authenticate and
deliver, trust preferred securities in definitive registered form, in any
authorized denominations, in an aggregate stated liquidation amount equal to the
principal amount of the global trust preferred securities representing the trust
preferred securities in exchange for such global trust preferred securities. In
addition, the Trust may at any time and in its sole discretion, subject to any
limitations described in the applicable prospectus supplement, determine not to
have any trust preferred securities represented by one or more global trust
preferred securities, and, in such event, a regular trustee on behalf of the
Trust will execute and the property trustee will authenticate and deliver trust
preferred securities in definitive registered form, in an aggregate stated
liquidation amount equal to the principal amount of the global trust preferred
securities representing such trust preferred securities, in exchange for such
global trust preferred securities.
PAYMENT AND PAYING AGENCY
Payments in respect of the trust preferred securities will be made to the
applicable depositary, which will credit the relevant participants' accounts on
the applicable distribution dates or, if the trust preferred securities are not
held by a depositary, such payments will be made by check mailed to the address
of the holder of the trust preferred security that appear on the Trust's
security register. Unless otherwise specified in the applicable prospectus
supplement, the paying agent for the trust preferred securities initially
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will be the property trustee. The paying agent will be permitted to resign as
paying agent upon 30 days' written notice to the property trustee and us.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable prospectus supplement, the
property trustee will act as registrar and transfer agent for the trust
preferred securities.
Registration of transfers of trust preferred securities will be made without
charge by or on behalf of the Trust, but the Trust may require payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange of trust preferred securities.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee will not be liable for any action taken, suffered or
omitted to be taken by it without negligence, in good faith and reasonably
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by the declaration of trust. The property trustee will be
under no obligation to exercise any rights or powers vested in it by the
declaration of trust at the request of a holder of trust securities, unless the
holder provides the property trustee security and indemnity, reasonably
satisfactory to the property trustee, against the costs and expenses and
liabilities that might be incurred.
DESCRIPTION OF THE GUARANTEE
The following description of certain terms and provisions of the guarantee
is a summary and is not complete. You should refer to the form of guarantee
(including the definitions therein of certain terms) that is filed as an exhibit
to, or incorporated by reference into, the registration statement, and to the
Trust Indenture Act.
Pursuant to and for the purposes of compliance with the Trust Indenture Act,
the guarantee will qualify as an indenture.
GENERAL
To the extent set forth in the guarantee and except to the extent paid by
the Trust, we will irrevocably and unconditionally agree to pay the holders of
the trust securities the guarantee payments (as defined below), in full, as and
when due, regardless of any defense, right of set-off or counterclaim that the
Trust may have or assert. The payments subject to the guarantee include:
- any accumulated and unpaid distributions that are required to be paid on
the trust securities, to the extent the Trust has funds available
therefor;
- the redemption price, including all accumulated and unpaid distributions
to the date of redemption, with respect to the trust securities, to the
extent the Trust has funds available therefor;
- the repayment price, including all accumulated and unpaid distributions to
the date of repayment, to the extent the Trust has funds available
therefor; and
- upon a voluntary or involuntary dissolution, winding-up or termination of
the Trust (other than in connection with the distribution of debt
securities to the holders in exchange for the trust securities, as
provided in the declaration of trust), the lesser of:
- the aggregate of the stated liquidation amount and all accumulated and
unpaid distributions on the trust securities to the date of payment,
to the extent the Trust has funds available therefor; and
- the amount of assets of the Trust remaining available for distribution
to holders of the trust securities in liquidation of the Trust.
Our obligation to make a guaranteed payment may be satisfied by direct payment
of the required amounts by us to the holders of trust
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preferred securities or by causing the Trust to pay such amounts to such
holders.
If a trust enforcement event has occurred and is continuing, the rights of
holders of the trust common securities to receive guaranteed payments will be
subordinated to the rights of holders of trust preferred securities to receive
guaranteed payments.
The guarantee will apply only to the extent the Trust has funds available to
make payments with respect to the trust securities. If we do not make interest
payments on the debt securities owned by the Trust, the Trust will not have
funds available to pay distributions on the trust preferred securities.
Through the guarantee, the debt securities and the indenture, taken
together, we have fully and unconditionally guaranteed all of the Trust's
obligations under the trust securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
such guarantee. It is only the combined operation of the documents that has the
effect of providing a full and unconditional guarantee of the Trust's
obligations under the declaration of trust.
STATUS OF THE GUARANTEE
The guarantee will constitute a guarantee of payment and not of collection.
Any beneficiary of the guarantee may institute a legal proceeding directly
against us to enforce such rights under the guarantee without instituting a
legal proceeding against any other person or entity.
CERTAIN COVENANTS OF UTILICORP
We will covenant that, so long as any trust securities remain outstanding,
if an event of default occurs under the guarantee or a trust enforcement event
occurs under the declaration of trust and written notice of such event has been
given to us, then we may not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to any of our capital
stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt that ranks equally with or junior in
interest to the debt securities or make any guarantee payments with
respect to any guarantee by us of the debt of any subsidiary of ours if
such guarantee ranks equally with or junior in interest to the debt
securities.
However, even if an event of default occurs, we may:
- purchase or acquire our capital stock in connection with the satisfaction
by us of our obligations under any employee benefit plans or pursuant to
any contract or security outstanding on the first day of any event of
default requiring us to purchase our capital stock;
- reclassify our capital stock or exchange or convert one class or series of
our capital stock for another class or series of our capital stock;
- purchase fractional interests in shares of our capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged;
- declare dividends or distributions in our capital stock;
- redeem or repurchase of any rights pursuant to a rights agreement; and
- make payments under the guarantee related to the trust preferred
securities.
AMENDMENTS; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of the trust securities in any material respect (that do not require
the consent of holders), the guarantee may be amended only 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 securities. All
guarantees and agreements
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contained in the guarantee will bind the successors, assigns, receivers,
trustees and representatives of ours and will inure to the benefit of the
holders of the trust securities then outstanding.
EVENTS OF DEFAULT
An event of default under the guarantee will occur upon our failure to
perform any of our payment or other obligations thereunder.
The holders of a majority in stated liquidation amount of the trust
securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the guarantee trustee in respect of the
guarantee or to direct the exercise of any trust or power conferred upon the
guarantee trustee under the guarantee. If the guarantee trustee fails to enforce
the guarantee, any holder of trust securities may institute a legal proceeding
directly against us to enforce its rights under the guarantee, without first
instituting a legal proceeding against the Trust, the guarantee trustee or any
other person. Notwithstanding the foregoing, if we fail to make a guaranteed
payment, a holder of trust securities may directly institute a proceeding
against us for enforcement of the guarantee for such payment.
We, as guarantor, are required to file annually with the guarantee trustee a
certificate indicating whether or not we are in compliance with all of the
conditions and obligations applicable to us under the guarantee.
TERMINATION
The guarantee will terminate:
- upon full payment of the redemption price of all of the trust securities;
- upon full payment of the repayment price of all of the trust securities;
- upon distribution of the debt securities held by the Trust to the holders
of the trust securities; or
- upon full payment of the amounts payable in accordance with the
declaration of trust upon liquidation of the Trust.
The guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of the trust securities must return payment of
any sums paid under the trust securities or the guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, prior to the occurrence of a default with respect to
the guarantee, will undertake to perform only those duties specifically set
forth in the guarantee and, after a default that has not been cured or waived,
will exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provisions, the guarantee
trustee will be under no obligation to exercise any of the rights or powers
vested in it by the guarantee at the request or direction of any holder of the
trust securities, unless such holder provides the guarantee trustee security and
indemnity, reasonably satisfactory to the guarantee trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of the
guarantee trustee's agents, nominees or custodians) and liabilities that might
be incurred thereby. The foregoing will not relieve the guarantee trustee, upon
the occurrence of an event of default under the guarantee, of its obligation to
exercise the rights and powers vested in it by the guarantee.
GOVERNING LAW
The guarantee will be governed by, construed and interpreted in accordance
with the laws of the State of New York.
RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE
DEBT SECURITIES AND THE GUARANTEE
To the extent set forth in the guarantee and to the extent funds are
available, we will irrevocably guarantee the payment of distributions and other
amounts due on the trust securities. If and to the extent we do not make
payments on the debt securities, the Trust will
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not have sufficient funds to pay distributions or other amounts due on the trust
securities. The guarantee does not cover any payment of distributions or other
amounts due on the trust securities unless the Trust has sufficient funds for
the payment of such distributions or other amounts. In such event, a holder of
trust securities may institute a legal proceeding directly against us to enforce
payment of such distributions or other amounts to such holder after the
respective due dates. Taken together, our obligations under the debt securities,
the indenture and the guarantee provide a full and unconditional guarantee of
payments of distributions and other amounts due on the trust securities. No
single document standing alone or operating in conjunction with fewer than all
of the other documents constitutes such guarantee. It is only the combined
operation of these documents that provides a full and unconditional guarantee of
the Trust's obligations under the trust securities.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other amounts are made when due on the
debt securities, such payments will be sufficient to cover distributions and
payments due on the trust securities because of the following factors:
- the aggregate principal amount of the debt securities will be equal to the
sum of the aggregate stated liquidation amount of the trust securities;
- the interest rate and the interest and other payment dates on the debt
securities will match the distribution rate and distribution and other
payment dates for the trust securities;
- we, as issuer of the debt securities, will pay, and the Trust will not be
obligated to pay, directly or indirectly, all costs, expenses, debts and
obligations of the Trust (other than with respect to the trust
securities); and
- the declaration of trust further provides that the Trust will not engage
in any activity that is not consistent with the limited purposes of the
Trust.
Notwithstanding anything to the contrary in the indenture, we have the right
to set-off any payment we are otherwise required to make thereunder against and
to the extent we have already made, or are concurrently on the date of such
payment making, a related payment under the guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
The declaration of trust provides that if we fail to make interest or other
payments on the debt securities when due (taking account of any extension
period), the holders of the trust preferred securities may direct the property
trustee to enforce its rights under the subordinated indenture. If the property
trustee fails to enforce its rights under the indenture in respect of an event
of default under the indenture, any holder of record of trust preferred
securities may, to the fullest extent permitted by applicable law, institute a
legal proceeding against us to enforce the property trustee's rights under the
indenture without first instituting any legal proceeding against the property
trustee or any other person or entity. Notwithstanding the foregoing, if a trust
enforcement event has occurred and is continuing and such event is attributable
to our failure to pay interest or principal on the debt securities on the date
such interest or principal is otherwise payable, then a holder of trust
preferred securities may institute a direct action against us for payment.
If we fail to make payments under the guarantee, a holder of trust preferred
securities may institute a proceeding directly against us for enforcement of the
guarantee for such payments.
LIMITED PURPOSE OF TRUST
The trust preferred securities evidence undivided beneficial ownership
interests in the Trust, and the Trust exists for the sole purpose of issuing and
selling the trust securities and using the proceeds to purchase our debt
securities. A principal difference between the rights of a holder of trust
preferred securities and a holder of debt securities is that a holder of debt
securities is entitled to receive from us
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the principal amount of and interest accrued on the debt securities held, while
a holder of trust preferred securities is entitled to receive distributions and
other payments from the Trust (or from us under the guarantee) only if and to
the extent the Trust has funds available for the payment of such distributions
and other payments.
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution, winding-up or liquidation of
the Trust involving the redemption or repayment of the debt securities, the
holders of the trust securities will be entitled to receive, out of assets held
by the Trust, subject to the rights of creditors of the Trust, if any, the
liquidation distribution in cash. Because we are the guarantor under the
guarantee and, as issuer of the debt securities, have agreed to pay for all
costs, expenses and liabilities of the Trust (other than the Trust's obligations
to the holders of the trust securities), the positions of a holder of trust
securities and a holder of debt securities relative to other creditors and to
our stockholders in the event of liquidation or bankruptcy of UtiliCorp would be
substantially the same.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating
holders to purchase from us, and us to sell to the holders, a specified number
of shares of common stock at a future date or dates, which we refer to herein as
"stock purchase contracts." The price per share of common stock and the number
of shares of common stock may be fixed at the time the stock purchase contracts
are issued or may be determined by reference to a specific formula set forth in
the stock purchase contracts. The stock purchase contracts may be issued
separately or as part of units consisting of a stock purchase contract and debt
securities, trust preferred securities or debt obligations of third parties,
including U.S. treasury securities, securing the holders' obligations to
purchase the common stock under the stock purchase contracts, which we refer to
herein as "stock purchase units." The stock purchase contracts may require us to
make periodic payments to the holders of the stock purchase units or vice versa,
and such payments may be unsecured or refunded on some basis. The stock purchase
contracts may require holders to secure their obligations thereunder in a
specified manner.
The applicable prospectus supplement will describe the terms of the stock
purchase contracts or stock purchase units. The description in the prospectus
supplement will not necessarily be complete, and reference will be made to the
stock purchase contracts, and, if applicable, collateral or depositary
arrangements, relating to the stock purchase contracts or stock purchase units.
Material United States federal income tax considerations applicable to the stock
purchase units and the stock purchase contracts will also be discussed in the
applicable prospectus supplement.
PLAN OF DISTRIBUTION
We and the Trust may sell securities in any of three ways:
- through underwriters or dealers;
- directly to a limited number of institutional purchasers or to a single
purchaser; or
- through agents.
Any underwriter, dealer or agent, may be deemed to be an underwriter within
the meaning of the Securities Act of 1933. The terms of the offering of the
securities with respect to which this prospectus is being delivered will be set
forth in the applicable prospectus supplement and will include:
- the name or names of any underwriters, dealers or agents;
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- the purchase price of the securities and the proceeds to us from such
sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- the public offering price; and
- any discounts or concessions which may be allowed or reallowed or paid to
dealers and any securities exchanges on which the securities may be
listed.
If underwriters are used in the sale of securities, the securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters acting alone. Unless otherwise set forth in the applicable
prospectus supplement, the obligations of the underwriters to purchase the
securities described in the applicable prospectus supplement will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all of the securities if any are so purchased by them. Any public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The securities may be sold from time to time directly by us or the Trust
through agents designated by us or the Trust. Any agents involved in the offer
or sale of the securities in respect of which this prospectus is being
delivered, and any commissions payable by us or the Trust to such agents, will
be set forth in the applicable prospectus supplement. Unless otherwise indicated
in the applicable prospectus supplement, any agent will be acting on a best
efforts basis for the period of its appointment.
If dealers are utilized in the sale of any securities, we or the Trust will
sell the securities to the dealers, as principals. Any dealer may resell the
securities to the public at varying prices to be determined by the dealer at the
time of resale. The name of any dealer and the terms of the transaction will be
set forth in the prospectus supplement with respect to the securities being
offered.
Securities may also be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms, which we refer to herein as the "remarketing firms,"
acting as principals for their own accounts or as our or the Trust's agents, as
applicable. Any remarketing firm will be identified and certain terms of its
agreement, if any, with us or the Trust and its compensation will be described
in the applicable prospectus supplement. Remarketing firms may be deemed to be
underwriters, as that term is defined in the Securities Act in connection with
the securities remarketed thereby.
If so indicated in the applicable prospectus supplement, we or the Trust
will authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase the securities to which this prospectus and
the applicable prospectus supplement relates from us or the Trust at the public
offering price set forth in the applicable prospectus supplement, plus, if
applicable, accrued interest, pursuant to delayed delivery contracts providing
for payment and delivery on a specified date in the future. These contracts will
be subject only to those conditions set forth in the applicable prospectus
supplement, and the applicable prospectus supplement will set forth the
commission payable for solicitation of the contracts.
Underwriters will not be obligated to make a market in any securities. No
assurance can be given regarding the activity of trading in, or liquidity of,
any securities.
Agents, dealers, underwriters and remarketing firms may be entitled, under
agreements entered into with us or the Trust (or both), to indemnification by us
or the Trust (or both) against certain civil liabilities, including liabilities
under the Securities Act, or to contribution to payments they may be required to
make in respect thereof. Agents, dealers, underwriters and remarketing firms may
be
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customers of, engage in transactions with, or perform services for, us and/or
the Trust in the ordinary course of business.
Each series of securities will be a new issue and, other than the common
stock, which is listed on the New York, Pacific and Toronto Stock Exchanges,
will have no established trading market. We may elect to list any series of
securities on an exchange, and in the case of the common stock, on any
additional exchange, but, unless otherwise specified in the applicable
prospectus supplement, we shall not be obligated to do so. No assurance can be
given as to the liquidity of the trading market for any of the securities.
Agents, underwriters, dealers and remarketing firms may be customers of,
engage in transactions with, or perform services for, us and our subsidiaries in
the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the equity securities, the debt
securities, the debt securities, the trust preferred securities, the guarantee,
the stock purchase contracts and stock purchase units offered by the prospectus
will be passed upon for us by Blackwell Sanders Peper Martin LLP, Two Pershing
Square, 2300 Main Street, Kansas City, Missouri 64108. Certain matters of
Delaware law relating to the validity of the trust preferred securities will be
passed upon on behalf of the Trust by Richards, Layton & Finger, P.A., counsel
to the Trust. Milbank, Tweed, Hadley & McCloy LLP provides legal services to us
from time to time.
EXPERTS
Our annual consolidated financial statements and schedules incorporated in this
prospectus by reference from our 1998 Annual Report on Form 10-K have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, and are incorporated herein in reliance upon
the authoring of said firm as experts in giving said reports.
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PART II INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The aggregate estimated expenses, other than underwriting discounts and
commissions, in connection with the offering pursuant to this registration
statement are currently anticipated to be as follows (all amounts except for the
Securities and Exchange Commission filing fee are estimated):
<TABLE>
<S> <C>
Registration Fee.................................................. $ 222,384
Printing and Engraving Expenses................................... 150,000
Legal Fees and Expenses........................................... 250,000
Accounting Fees and Expenses...................................... 50,000
Transfer Agent and Registrar Fees................................. 50,000
Trustees' Fees.................................................... 10,000
Exchange Listing Fees............................................. 40,000
Miscellaneous..................................................... 2,616
---------
Total............................................................. $ 775,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law confers broad powers
upon corporations incorporated in that State with respect to indemnification of
any person against liabilities incurred by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation or other business entity. The provisions of
Section 145 are not exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement or otherwise.
The Certificate of Incorporation of the Company contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty to the
fullest extent permitted by the Delaware General Corporation Law.
There is in effect for the Company a dual phase insurance policy providing
directors and officers with indemnification, subject to certain exclusions and
to the extent not otherwise indemnified by the Company, against loss (excluding
expenses incurred in the defense of actions, suits or proceedings in connection
therewith) arising from any negligent act, error, omission or breach of duty
while acting in their capacity as directors and officers of the Company. The
policy also reimburses the Company for liability incurred in the indemnification
of its directors and officers.
There is also in effect a Bylaw provision entitling officers and directors
to be indemnified by the Company against costs or expenses, attorneys' fees,
judgments, fines and amounts paid in settlement that are actually and reasonably
incurred in connection with any action, suit or proceeding, including actions
brought by or in the right of the Company, to which such persons are made or
threatened to be made a party, by reason of their being a director or officer.
Such right, however, may be made only as authorized by (i) a majority vote of a
quorum of disinterested directors, or (ii) if such quorum is not obtainable or,
if obtainable, a majority thereof so directs, by independent legal counsel, or
(iii) by the stockholders of the Company, upon a determination that the person
seeking indemnification acted in good faith and in the manner that he or she
reasonably believed to be in or not opposed to the Company's best interest, or,
if the action is criminal in nature, upon a determination that the person
seeking indemnification had no reasonable cause to believe that such person's
conduct was unlawful. This provision also requires the Company, upon
authorization by the Board of Directors, to advance costs and expenses,
including attorneys' fees, reasonably incurred in defending such actions;
provided,
II-1
<PAGE>
that any person seeking such an advance first provide the Company with an
undertaking to repay any amount as to which it may be determined such person is
not entitled.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------------- -----------------------------------------------------------------
<C> <S>
*1(a) --Form of Underwriting Agreement for Debt Securities. (Exhibit
1(a) to UtiliCorp United Inc.'s Registration Statement No.
333-6707, filed November 10, 1998.)
*1(b) --Form of Underwriting Agreement for Common Stock. (Exhibit 1(b)
to UtiliCorp United Inc.'s Registration Statement No. 333-6707,
filed November 10, 1998.)
**1(c) --Form of Underwriting Agreement for PEPS Units.
**1(d) --Form of Remarketing Agreement for the Trust Preferred
Securities.
*4(a)(1) --Certificate of Incorporation of the Registrant. (Exhibit
4(a)(1) to UtiliCorp United Inc.'s Annual Report on Form 10-K
for the fiscal year ended December 31, 1991.)
*4(a)(2) --Certificate of Amendment to Certificate of Incorporation of
UtiliCorp United Inc. (Exhibit 4(a)(1) to Registration
Statement No. 33-16990, filed September 3, 1987.)
*4(a)(3) --Certificate of Amendment to Certificate of Incorporation of
UtiliCorp United Inc. Exhibit 4(a)(5) to the Registration
Statement No. 33-50260, filed July 31, 1992.)
*4(a)(4) --Certificate of Amendment to Certificate of Incorporation of
UtiliCorp United Inc. (Exhibit 3.2 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the period ended June 30,
1998.)
*4(b) --Bylaws of UtiliCorp United Inc., as amended. (Exhibit 3.1 to
UtiliCorp United Inc.'s Quarterly Report on Form 10-Q for the
period ended June 30, 1998).
*4(c) --Twentieth Supplemental Indenture, dated as of May 26, 1989,
Supplemental to Indenture of Mortgage and Deed of Trust, dated
July 1, 1951. (Exhibit 4(d) to Registration Statement No.
33-45382.)
*4(d)(1) --Indenture, dated as of November 1, 1990, between UtiliCorp
United Inc. and The First National Bank of Chicago, Trustee.
(Exhibit 4(a) to UtiliCorp United's Current Report on Form 8-K,
dated November 30, 1990.)
*4(d)(2) --First Supplemental Indenture, dated as of November 27, 1990.
(Exhibit 4(b) to UtiliCorp United Inc.'s Current Report on Form
8-K, dated November 30, 1990).
*4(d)(3) --Second Supplemental Indenture, dated as of November 15, 1991.
(Exhibit (a) to UtiliCorp United Inc.'s Current Report on Form
8-K, dated December 19, 1991.)
*4(d)(4) --Third Supplemental Indenture, dated as of January 15, 1992.
(Exhibit 4(c)(4) to UtiliCorp United Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1991).
*4(d)(5) --Fourth Supplemental Indenture, dated as of February 24, 1993.
(Exhibit 4(c)(5) to UtiliCorp United Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1992.)
*4(d)(6) --Fifth Supplemental Indenture, dated as of April 1, 1993.
(Exhibit 4(c)(6) to UtiliCorp United Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1993.)
*4(d)(7) --Sixth Supplemental Indenture, dated as of November 1, 1994.
(Exhibit 4(d)(7) to UtiliCorp United Inc.'s Registration
Statement No. 33-57167, filed January 4, 1995.)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------------- -----------------------------------------------------------------
<C> <S>
*4(d)(8) --Seventh Supplemental Indenture, dated as of June 1, 1995.
(Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form
10-Q for the period ended June 30, 1995.)
*4(d)(9) --Eighth Supplemental Indenture, dated as of October 1, 1996.
(Exhibit 4(b)(9) to UtiliCorp United Inc.'s Annual Report on
10-K for the year ended December 31, 1996.)
*4(d)(10) --Ninth Supplemental Indenture, dated as of September 1, 1997.
(Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form
10-Q for the period ended September 30, 1997.)
*4(d)(11) --Tenth Supplemental Indenture, dated as of March 31, 1999.
(Exhibit 4(c)(11)) to UtiliCorp United Inc.'s Registration
Statement No. 333-83979, filed July 29, 1999.)
*4(d)(12) --Eleventh Supplemental Indenture, dated as of July 20, 1999.
(Exhibit 4(c)(12) to UtiliCorp United Inc.'s Registration
Statement No. 333-83979, filed July 29, 1999.)
*4(d)(13) --Form of Supplemental Indenture (Exhibit 4(d)(11) to Utilicorp
United Inc.'s Registration Statement No. 333-6707, filed
November 10, 1998.)
*4(e) --Form on Rights Agreement between UtiliCorp United Inc. and
First Chicago Trust Company of New York, as Rights Agent.
(Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form
10-Q for the period ended September 30, 1996.)
*4(f)(1) --Indenture, dated as of June 1, 1995, Junior Subordinated
Debentures. (Exhibit 4(d)(1) to UtiliCorp United Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1995.)
*4(f)(2) --First Supplemental Indenture, dated as of June 1, 1995,
Supplement to Indenture dated June 1, 1995. (Exhibit 4(d)(2) to
UtiliCorp United Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1995.)
Long-term debt instruments of UtiliCorp United Inc. in amounts
not exceeding 10 per cent of the total assets of UtiliCorp
United Inc. and its subsidiaries on a consolidated basis will
be furnished to the Commission upon request.
4(g) --Form of Subordinated Indenture.
4(h) --Form of Guarantee Agreement to be delivered by UtiliCorp United
Inc.
***4(i) --Certificate of Trust of UCU Capital Trust I.
***4(j) --Declaration of Trust of UCU Capital Trust I, dated August 30,
1999.
4(k) --Form of Amended and Restated Declaration of Trust of UCU
Capital Trust I.
4(l) --Form of Preferred Security (included as Exhibit A to the Form
of Amended and Restated Declaration of Trust to be filed as
Exhibit 4(k).)
4(m) --Form of Purchase Contract Agreement.
4(n) --Form of Pledge Agreement.
5(a) --Opinion of Blackwell Sanders Peper Martin LLP.
5(b) --Opinion of Richards, Layton & Finger, P.A.
***12 --Computation of Ratio of Earnings to Fixed Changes.
23(a) --Consent of Arthur Andersen LLP, Kansas City, Missouri.
23(b) --Consent of Blackwell Sanders Peper Martin LLP. (included in
opinion filed as Exhibit 5(a).)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------------- -----------------------------------------------------------------
<C> <S>
23(c) --Consent of Richards, Layton & Finger, P.A. (included in opinion
filed as Exhibit 5(b).)
***24(a) --Power of Attorney executed by certain officers and a majority
of the Board of Directors of UtiliCorp United Inc.
24(b) --Power of Attorney executed by Dwayne L. Hart.
***25(a) --Form T-1 Statement of Eligibility of The Chase Manhattan Bank
as the Indenture Trustee.
***25(b) --Form T-1 Statement of Eligibility of The Chase Manhattan Bank
as the Guarantee Trustee.
***25(c) --Form T-1 Statement of Eligibility of The Chase Manhattan Bank
as the Property Trustee under the Amended and Restated
Declaration of Trust of UCU Capital Trust I.
25(d) Form T-1 Statement of Eligibility of The First National Bank of
Chicago as Indenture Trustee.
25(e) --Form T-1 Statement of Eligibility of The First National Bank of
Chicago as the Guarantee Trustee.
25(f) --Form T-1 Statement of Eligibility of the First National Bank of
Chicago as Property Trustee under the Amended and Restated
Declaration of Trust of UCU Capital Trust I.
</TABLE>
- ------------------------
* Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
** To be filed subsequent to the effectiveness of this Registration Statement
by an amendment to the Registration Statement or incorporated by reference
pursuant to a Current Report on Form 8-K in connection with the offering of
securities.
*** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of the prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
II-4
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrants will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 1 to Registration Statement No. 333-86299 to
be signed on behalf of the undersigned, in the City of Kansas City, State of
Missouri, on the 9th day of September, 1999.
<TABLE>
<S> <C> <C>
UTILICORP UNITED INC.
By: /s/ DALE J. WOLF
-----------------------------------------
Dale J. Wolf
VICE PRESIDENT, FINANCE, TREASURER
AND CORPORATE SECRETARY
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement No. 333-86299 has been signed by the following
persons in the capacities indicated on the 9th day of September, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
Chairman of the Board and
RICHARD C. GREEN, JR.* Chief Executive Officer
- ------------------------------ (Principal Executive
Richard C. Green, Jr.* Officer)
Senior Vice President and
/s/ DWAYNE L. HART Chief Financial Officer
- ------------------------------ (Principal Financial
Dwayne L. Hart Officer and Principal
Accounting Officer)
RICHARD C. GREEN, JR.*
JOHN R. BAKER*
HERMAN CAIN*
ROBERT K. GREEN*
A majority of the Board of
IRVINE O. HOCKADAY, JR.* Directors
STANLEY O. IKENBERRY*
ROBERT F. JACKSON, JR.
L. PATTON KLINE*
AVIS G. TUCKER*
</TABLE>
<TABLE>
<S> <C> <C>
*By: /s/ DALE J. WOLF
-------------------------
Dale J. Wolf
AS ATTORNEY-IN-FACT FOR
THE ABOVE-NAMED OFFICERS
AND DIRECTORS PURSUANT TO
POWERS OF ATTORNEY DULY
EXECUTED BY SUCH PERSONS
</TABLE>
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 1 to Registration Statement No. 333-86299 to
be signed on behalf of the undersigned, in the City of Kansas City, State of
Missouri, on the 9th day of September, 1999.
<TABLE>
<S> <C> <C>
UCU CAPITAL TRUST I
By: UtiliCorp United Inc., Sponsor
By: /s/ DALE J. WOLF
-----------------------------------------
Dale J. Wolf
VICE PRESIDENT, FINANCE, TREASURER
AND CORPORATE SECRETARY
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------------- -----------------------------------------------------------------
<C> <S>
*1(a) --Form of Underwriting Agreement for Debt Securities. (Exhibit
1(a) to UtiliCorp United Inc.'s Registration Statement No.
333-6707, filed November 10, 1998.)
*1(b) --Form of Underwriting Agreement for Common Stock. (Exhibit 1(b)
to UtiliCorp United Inc.'s Registration Statement No. 333-6707,
filed November 10, 1998.)
**1(c) --Form of Underwriting Agreement for PEPS Units.
**1(d) --Form of Remarketing Agreement for the Trust Preferred
Securities.
*4(a)(1) --Certificate of Incorporation of the Registrant. (Exhibit
4(a)(1) to UtiliCorp United Inc.'s Annual Report on Form 10-K
for the fiscal year ended December 31, 1991.)
*4(a)(2) --Certificate of Amendment to Certificate of Incorporation of
UtiliCorp United Inc. (Exhibit 4(a)(1) to Registration
Statement No. 33-16990, filed September 3, 1987.)
*4(a)(3) --Certificate of Amendment to Certificate of Incorporation of
UtiliCorp United Inc. Exhibit 4(a)(5) to the Registration
Statement No. 33-50260, filed July 31, 1992.)
*4(a)(4) --Certificate of Amendment to Certificate of Incorporation of
UtiliCorp United Inc. (Exhibit 3.2 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the period ended June 30,
1998.)
*4(b) --Bylaws of UtiliCorp United Inc., as amended. (Exhibit 3.1 to
UtiliCorp United Inc.'s Quarterly Report on Form 10-Q for the
period ended June 30, 1998).
*4(c) --Twentieth Supplemental Indenture, dated as of May 26, 1989,
Supplemental to Indenture of Mortgage and Deed of Trust, dated
July 1, 1951. (Exhibit 4(d) to Registration Statement No.
33-45382.)
*4(d)(1) --Indenture, dated as of November 1, 1990, between UtiliCorp
United Inc. and The First National Bank of Chicago, Trustee.
(Exhibit 4(a) to UtiliCorp United's Current Report on Form 8-K,
dated November 30, 1990.)
*4(d)(2) --First Supplemental Indenture, dated as of November 27, 1990.
(Exhibit 4(b) to UtiliCorp United Inc.'s Current Report on Form
8-K, dated November 30, 1990).
*4(d)(3) --Second Supplemental Indenture, dated as of November 15, 1991.
(Exhibit (a) to UtiliCorp United Inc.'s Current Report on Form
8-K, dated December 19, 1991.)
*4(d)(4) --Third Supplemental Indenture, dated as of January 15, 1992.
(Exhibit 4(c)(4) to UtiliCorp United Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1991).
*4(d)(5) --Fourth Supplemental Indenture, dated as of February 24, 1993.
(Exhibit 4(c)(5) to UtiliCorp United Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1992.)
*4(d)(6) --Fifth Supplemental Indenture, dated as of April 1, 1993.
(Exhibit 4(c)(6) to UtiliCorp United Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1993.)
*4(d)(7) --Sixth Supplemental Indenture, dated as of November 1, 1994.
(Exhibit 4(d)(7) to UtiliCorp United Inc.'s Registration
Statement No. 33-57167, filed January 4, 1995.)
*4(d)(8) --Seventh Supplemental Indenture, dated as of June 1, 1995.
(Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form
10-Q for the period ended June 30, 1995.)
*4(d)(9) --Eighth Supplemental Indenture, dated as of October 1, 1996.
(Exhibit 4(b)(9) to UtiliCorp United Inc.'s Annual Report on
10-K for the year ended December 31, 1996.)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------------- -----------------------------------------------------------------
<C> <S>
*4(d)(10) --Ninth Supplemental Indenture, dated as of September 1, 1997.
(Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form
10-Q for the period ended September 30, 1997.)
*4(d)(11) --Tenth Supplemental Indenture, dated as of March 31, 1999.
(Exhibit 4(c)(11)) to UtiliCorp United Inc.'s Registration
Statement No. 333-83979, filed July 29, 1999.)
*4(d)(12) --Eleventh Supplemental Indenture, dated as of July 20, 1999.
(Exhibit 4(c)(12) to UtiliCorp United Inc.'s Registration
Statement No. 333-83979, filed July 29, 1999.)
*4(d)(13) --Form of Supplemental Indenture (Exhibit 4(d)(11) to UtiliCorp
United Inc.'s Registration Statement No. 333-67.)
*4(e) --Form on Rights Agreement between UtiliCorp United Inc. and
First Chicago Trust Company of New York, as Rights Agent.
(Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form
10-Q for the period ended September 30, 1996.)
*4(f)(1) --Indenture, dated as of June 1, 1995, Junior Subordinated
Debentures. (Exhibit 4(d)(1) to UtiliCorp United Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1995.)
*4(f)(2) --First Supplemental Indenture, dated as of June 1, 1995,
Supplement to Indenture dated June 1, 1995. (Exhibit 4(d)(2) to
UtiliCorp United Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1995.)
Long-term debt instruments of UtiliCorp United Inc. in amounts
not exceeding 10 per cent of the total assets of UtiliCorp
United Inc. and its subsidiaries on a consolidated basis will
be furnished to the Commission upon request.
4(g) --Form of Subordinated Indenture.
4(h) --Form of Guarantee Agreement to be delivered by UtiliCorp United
Inc.
***4(i) --Certificate of Trust of UCU Capital Trust I.
***4(j) --Declaration of Trust of UCU Capital Trust I, dated August 30,
1999.
4(k) --Form of Amended and Restated Declaration of Trust of UCU
Capital Trust I.
4(l) --Form of Preferred Security (included as Exhibit A to the Form
of Amended and Restated Declaration of Trust to be filed as
Exhibit 4(k).)
4(m) --Form of Purchase Contract Agreement.
4(n) --Form of Pledge Agreement.
5(a) --Opinion of Blackwell Sanders Peper Martin LLP.
5(b) --Opinion of Richards, Layton & Finger, P.A.
***12 --Computation of Ratio of Earnings to Fixed Changes.
23(a) --Consent of Arthur Andersen LLP, Kansas City, Missouri.
23(b) --Consent of Blackwell Sanders Peper Martin LLP. (included in
opinion filed as Exhibit 5(a).)
23(c) --Consent of Richards, Layton & Finger, P.A. (included in opinion
filed as Exhibit 5(b).)
***24(a) --Power of Attorney executed by certain officers and a majority
of the Board of Directors of UtiliCorp United Inc.
24(b) --Power of Attorney executed by Dwayne L. Hart.
***25(a) --Form T-1 Statement of Eligibility of The Chase Manhattan Bank
as the Indenture Trustee.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------------- -----------------------------------------------------------------
<C> <S>
***25(b) --Form T-1 Statement of Eligibility of The Chase Manhattan Bank
as the Guarantee Trustee.
***25(c) --Form T-1 Statement of Eligibility of The Chase Manhattan Bank
as the Property Trustee under the Amended and Restated
Declaration of Trust of UCU Capital Trust I.
25(d) --Form T-1 Statement of Eligibility of The First National Bank of
Chicago as Indenture Trustee.
25(e) --Form T-1 Statement of Eligibility of The First National Bank of
Chicago as the Guarantee Trustee.
25(f) --Form T-1 Statement of Eligibility of the First National Bank of
Chicago as Property Trustee under the Amended and Restated
Declaration of Trust of UCU Capital Trust I.
</TABLE>
- ------------------------
* Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
** To be filed subsequent to the effectiveness of this Registration Statement
by an amendment to the Registration Statement or incorporated by reference
pursuant to a Current Report on Form 8-K in connection with the offering of
securities.
*** Previously filed.
<PAGE>
EXHIBIT 4(g)
=====================================================================
UTILICORP UNITED INC.
AND
THE CHASE MANHATTAN BANK, as Trustee
SUBORDINATED INDENTURE
Dated as of September ___, 1999
Providing for Issuance of Debt Securities
=====================================================================
<PAGE>
UTILICORP UNITED, INC.
Reconciliation and Tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of September ___, 1999.
<TABLE>
<CAPTION>
<S> <C>
Trust Indenture Indenture
Act Section Section(s)
----------- ----------
(S)310 (a)(1)..................................................... 609
(a)(2)..................................................... 609
(a)(3)..................................................... Not Applicable
(a)(4)..................................................... Not Applicable
(a)(5)..................................................... 609
(b)........................................................ 608, 610
(c)........................................................ Not Applicable
(S)311 (a)........................................................ 613
(b)........................................................ 613
(c)........................................................ 613
(S)312 (a)........................................................ 701, 702(a)
(b)........................................................ 702(a)
(c)........................................................ 702(b)
(S)313 (a)........................................................ 703(a)
(b)........................................................ 703(b)
(c)........................................................ 703(c)
(d)........................................................ 703(c)
(S)314 (a)........................................................ 704
(a)(4)..................................................... 101, 1009
(b)........................................................ Not Applicable
(c)(1)..................................................... 102
(c)(2)..................................................... 102
(c)(3)..................................................... Not Applicable
(d)........................................................ Not Applicable
(e)........................................................ 102
(f)........................................................ Not Applicable
(S)315 (a)........................................................ 601
(b)........................................................ 602
(c)........................................................ 601
(d)........................................................ 601
(e)........................................................ 514
(S)316 (a)(1)(A).................................................. 502, 512
(a)(1)(B).................................................. 513
(a)(2)..................................................... Not Applicable
(b)........................................................ 508
(c)........................................................ 104
(S)317 (a)(1)..................................................... 503
(a)(2)..................................................... 504
i
<PAGE>
<S> <C>
(b)........................................................ 1003
(S)318 (a)........................................................ 108
</TABLE>
NOTE: This Reconciliation and Tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
ARTICLE ONE Definitions and Other Provisions of General Application..............................................1
SECTION 1.01. Definitions......................................................................................1
SECTION 1.02. Compliance Certificates and Opinions............................................................7
SECTION 1.03. Form of Documents Delivered to Trustee..........................................................8
SECTION 1.04. Acts of Holders; Record Dates...................................................................8
SECTION 1.05. Notices, etc., to Trustee and the Company......................................................10
SECTION 1.06. Notice to Holders of Securities; Waiver........................................................11
SECTION 1.07. Language of Notices, etc.......................................................................11
SECTION 1.08. Conflict with Trust Indenture Act..............................................................12
SECTION 1.09. Effect of Headings and Table of Contents.......................................................12
SECTION 1.10. Successors and Assigns.........................................................................12
SECTION 1.11. Separability Clause............................................................................12
SECTION 1.12. Benefits of Indenture..........................................................................12
SECTION 1.13. Governing Law..................................................................................12
SECTION 1.14. Legal Holidays.................................................................................12
SECTION 1.15. Appointment of Agent for Service...............................................................13
SECTION 1.16. No Adverse Interpretation of Other Agreements..................................................13
SECTION 1.17. Execution in Counterparts......................................................................13
ARTICLE TWO Security Forms......................................................................................13
SECTION 2.01. Forms Generally................................................................................13
SECTION 2.02. Form of Trustee's Certificate of Authentication................................................14
SECTION 2.03. Securities in Global Form......................................................................14
SECTION 2.04. Form of Legend for Global Securities...........................................................15
<PAGE>
<S> <C>
SECTION 2.05. Form of Legend for Bearer Securities...........................................................15
ARTICLE THREE The Securities....................................................................................15
SECTION 3.01. Amount Unlimited; Issuable in Series...........................................................15
SECTION 3.02. Denominations..................................................................................18
SECTION 3.03. Execution, Authentication, Delivery and Dating.................................................18
SECTION 3.04. Temporary Securities...........................................................................20
SECTION 3.05. Registration, Registration of Transfer and Exchange............................................21
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities...............................................24
SECTION 3.07. Payment of Interest; Interest Rights Preserved.................................................25
SECTION 3.08. Persons Deemed Owners..........................................................................26
SECTION 3.09. Cancellation...................................................................................27
SECTION 3.10. Computation of Interest........................................................................27
SECTION 3.11. Form of Certification by a Person Entitled to Receive a Bearer Security.......................27
ARTICLE FOUR Satisfaction and Discharge.........................................................................28
SECTION 4.01. Satisfaction and Discharge of Indenture........................................................28
SECTION 4.02. Application of Trust Money.....................................................................29
ARTICLE FIVE Remedies...........................................................................................30
SECTION 5.01. Events of Default...............................................................................30
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.............................................31
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................................32
SECTION 5.04. Trustee May File Proofs of Claim...............................................................33
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities or Coupons.........................34
SECTION 5.06. Application of Money Collected.................................................................34
SECTION 5.07. Limitation on Suits............................................................................34
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SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest......................35
SECTION 5.09. Restoration of Rights and Remedies.............................................................35
SECTION 5.10. Rights and Remedies Cumulative.................................................................35
SECTION 5.11. Delay or Omission Not Waiver...................................................................36
SECTION 5.12. Control by Holders of Securities...............................................................36
SECTION 5.13. Waiver of Past Defaults........................................................................36
SECTION 5.14. Undertaking for Costs..........................................................................36
SECTION 5.15. Waiver of Stay or Extension Laws...............................................................37
ARTICLE SIX The Trustee.........................................................................................37
SECTION 6.01. Certain Duties and Responsibilities............................................................37
SECTION 6.02. Notice of Defaults.............................................................................38
SECTION 6.03. Certain Rights of Trustee......................................................................38
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.........................................39
SECTION 6.05. May Hold Securities............................................................................40
SECTION 6.06. Money Held in Trust............................................................................40
SECTION 6.07. Compensation and Reimbursement.................................................................40
SECTION 6.08. Disqualification; Conflicting Interests........................................................41
SECTION 6.09. Corporate Trustee Required; Eligibility........................................................41
SECTION 6.10. Resignation and Removal; Appointment of Successor..............................................41
SECTION 6.11. Acceptance of Appointment by Successor.........................................................42
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business....................................43
SECTION 6.13. Preferential Collection of Claims Against Company..............................................44
SECTION 6.14. Appointment of Authenticating Agent............................................................44
ARTICLE SEVEN Holders' Lists and Reports by Trustee and the Company.............................................45
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders......................................45
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SECTION 7.02. Preservation of Information; Communications to Holders.........................................46
SECTION 7.03. Reports by Trustee.............................................................................46
SECTION 7.04. Reports by Company.............................................................................46
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease..............................................47
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms...........................................47
SECTION 8.02. Successor Corporation Substituted..............................................................48
ARTICLE NINE Supplemental Indentures............................................................................48
SECTION 9.01. Supplemental Indentures without Consent of Holders.............................................48
SECTION 9.02. Supplemental Indentures with Consent of Holders................................................49
SECTION 9.03. Execution of Supplemental Indentures...........................................................50
SECTION 9.04. Effect of Supplemental Indentures..............................................................51
SECTION 9.05. Conformity with Trust Indenture Act............................................................51
SECTION 9.06. Reference in Securities to Supplemental Indentures.............................................51
ARTICLE TEN Covenants...........................................................................................51
SECTION 10.01. Payment of Principal, Premium and Interest....................................................51
SECTION 10.02. Maintenance of Office or Agency...............................................................51
SECTION 10.03. Money for Securities Payments to Be Held in Trust.............................................53
SECTION 10.04. Additional Amounts............................................................................54
SECTION 10.05. Corporate Existence...........................................................................54
SECTION 10.06. Maintenance of Properties.....................................................................55
SECTION 10.07. Payment of Taxes and Other Claims.............................................................55
SECTION 10.08. Restrictions on Liens.........................................................................55
SECTION 10.09. Statement as to Default.......................................................................57
SECTION 10.10. Waiver of Certain Covenants...................................................................57
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ARTICLE ELEVEN Redemption of Securities.........................................................................57
SECTION 11.01. Applicability of Article......................................................................57
SECTION 11.02. Election to Redeem; Notice to Trustee.........................................................58
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.............................................58
SECTION 11.04. Notice of Redemption..........................................................................58
SECTION 11.05. Deposit of Redemption Price...................................................................59
SECTION 11.06. Securities Payable on Redemption Date.........................................................59
SECTION 11.07. Securities Redeemed in Part...................................................................60
ARTICLE TWELVE Sinking Funds....................................................................................60
SECTION 12.01. Applicability of Article......................................................................60
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.........................................61
SECTION 12.03. Redemption of Securities for Sinking Fund.....................................................61
ARTICLE THIRTEEN Meetings of Holders of Securities..............................................................61
SECTION 13.01. Purposes for Which Meetings May be Called.....................................................61
SECTION 13.02. Call Notice and Place of Meeting..............................................................62
SECTION 13.03. Persons Entitled to Vote at Meetings..........................................................62
SECTION 13.04. Quorum; Action................................................................................62
SECTION 13.05. Determination of Voting Rights; Conduct and Adjournment of Meetings..........................63
SECTION 13.06. Counting Votes and Recording Action of Meetings...............................................64
SECTION 13.07. Action Without Meeting........................................................................64
ARTICLE FOURTEEN Immunity of Incorporators, Stockholders, Officers, Directors and Employees....................64
SECTION 14.01. Liability Solely Corporate....................................................................64
ARTICLE FIFTEEN Subordination of Securities.....................................................................65
SECTION 15.01. Agreement of Subordination....................................................................65
SECTION 15.02. Limitations on Payments to Holders............................................................65
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SECTION 15.03. Payments in Bankruptcy........................................................................66
SECTION 15.04. Subrogation of Securities.....................................................................67
SECTION 15.05. Authorization by Holders......................................................................68
SECTION 15.06. Notice to Trustee.............................................................................68
SECTION 15.07. Trustee's Relation to Senior Indebtedness.....................................................69
SECTION 15.08. Acts of Holders of Senior Indebtedness........................................................69
</TABLE>
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INDENTURE, dated as of September ___, 1999 among UtiliCorp
United, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office
at 20 West Ninth Street, Kansas City, Missouri 64105 and The Chase Manhattan
Bank, a corporation duly organized and existing under the laws of New York,
having its principal corporate trust office at 450 West 33rd Street, New
York, New York 10001, as Trustee (herein called the "Trustee').
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured, Subordinated Securities, notes or other evidences of indebtedness
(herein collectively called the "Securities", and individually called a
"Security"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done. This
Indenture is subject to the provisions of the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except as
otherwise herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the United
States of America at the date of such computation;
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(4) the words "herein," "hereof," "hereto" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for
example, the phrase "A or B" means "A or B or both," not "either A or B but
not both"). Certain terms used principally in certain Articles are defined in
those Articles.
"Act" when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person or Persons
authorized by the Trustee to act on behalf of the Trustee to authenticate one
or more series of Securities.
"Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
"Bearer Security" means any Security in the form for Bearer
Securities set forth in Section 203 or established pursuant to Section 201
which is payable to bearer and shall bear the legend specified in Section 205.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified
by the Corporate Secretary or an Assistant Corporate Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to a particular
location specified in the Securities or this Indenture, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which state or
national banks in such location are authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act
of 1934, as amended, or, if at any
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time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee of a series of Securities at which at any
particular time its corporate trust business shall be administered, which
office on the date of execution of this Indenture is located at 450 West 33rd
Street, New York, New York 10001, Attention: Global Trust Services, except
that with respect to presentation of Securities of a series for payment or
for registration of transfer or exchange, such term shall mean the office or
agency of the Trustee of such series at which, at any particular time, its
corporate agency business shall be conducted which office or agency on the
date of execution of this Indenture is located at 55 Water Street, Room 234,
New York, New York 10041.
"Corporation" includes any corporation, association,
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Global Securities, a clearing agency registered under the Securities Exchange
Act of 1934, as amended, specified for that purpose as contemplated by
Section 301 or any successor clearing agency registered under such Act as
contemplated by Section 305, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any series
shall mean the Depositary with respect to the Securities of such series.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.4
"Global Security" means a Security bearing the legend
specified in Section 204 evidencing all or part of a series of Securities,
issued to the Depositary for such series or its nominee, and registered in
the name of such Depositary or nominee.
"Holder" when used with respect to any Security, means in
the case of a Registered Security the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
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"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity," when used with respect to any Security, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the
President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Corporate Secretary or an Assistant Corporate Secretary of the Company
that complies with the requirements of Section 314(c) of the Trust Indenture
Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company and who shall be acceptable to the
Trustee, that complies with the requirements of Section 314(c) of the Trust
Indenture Act.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding" when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons thereto
appertaining; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and (iii) Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company; provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding
Securities have been given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders of
Securities for quorum purposes, Securities
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owned by the Company, or any other obligor upon the Securities or any
Affiliate of the Company, or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company, or any other obligor
upon the Securities or any Affiliate of the Company, or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of (and premium, if any) or interest on any Securities
on behalf of the Company.
"Person" means any individual, Corporation, partnership,
joint venture, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the
Securities of any series, means the place or places where the principal of
(and premium, if any) and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Preferred Securities" means the preferred securities
issued from time to time by the Trust representing beneficial ownership
interests in the Trust.
"Redemption Date," when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Request" or "Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Corporate Secretary or an Assistant
Corporate Secretary, and delivered to the Trustee.
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"Responsible Officer," when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any Vice
President, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the 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
his knowledge of and familiarity with the particular subject.
"Securities" and "Security" have the meanings stated in the
first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; provided, however, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" of the Company means the principal
of, premium, if any, interest on and any other payment due pursuant to any of
the following, whether outstanding at the date of execution of this Indenture
or thereafter incurred, created or assumed: (a) all indebtedness of the
Company evidenced by notes, Securities, debentures bonds, or other securities
sold by the Company for money, (b) all indebtedness of others of the kinds
described in the preceding clause (a) assumed by or guaranteed in any manner
by the Company or in effect guaranteed by the Company through an agreement to
purchase, contingent or otherwise, and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in any of the preceding
clauses (a) and (b); unless, in the case of any particular indebtedness,
renewal, extension or refunding, the instrument creating or evidencing the
same or the assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Securities.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security
or any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
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"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Act or provision, as the case
may be, as amended or replaced from time to time or as supplemented from time
to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"United States" means the United States of America
(including the States and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for
United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.
"Vice President" when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents. Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. If Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders may, alternatively, be
embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such instrument or
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by
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any Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided
in Section 1306.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be given or taken by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of
customary practices governing the exercise of the rights of the Depositary
(or its nominee) as Holder of any Security.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by
a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
or pursuant to this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may give its proxy or
proxies to the Depositary's participants or the beneficial owners of
interests in any such Global Security, as the case may be, through such
Depositary's standing instructions and customary practices.
Subject to the next succeeding paragraph, the Company may,
in the circumstances permitted by the Trust Indenture Act, fix any day as the
record date for the purpose of determining the Holders of Securities of any
series entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of Securities of such
series. If not set by the Company prior to the first solicitation of a Holder
of Securities of such series made by any Person in respect of any such
action, or in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day prior to such first
solicitation or vote, or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701, as the case may be.
With regard to any record date for action to be taken by the Holders of one
or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action. The Trustee shall fix a record date
for the purpose of determining the Persons who are beneficial owners of
interests in any permanent Global Security held by a Depositary and who are
entitled under the procedures of such Depositary to make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
or pursuant to this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice,
consent, waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
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(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person executing any such instrument or writing as a
Holder of Securities, and the date of his holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person executing such instrument or writing as a Holder of
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some
other Person, or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding.
(e) The fact and date of execution of any such instrument
or writing, the authority of the Person executing the same, the principal
amount and serial numbers of Bearer Securities held by the Person so
executing such instrument or writing and the date of holding the same may
also be proved in any other reasonable manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(f) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.05. Notices, etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of Holders of a series of Securities
or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with, (1) the Trustee of such series by any
Holder of a Security of such series or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee of such series at its Corporate Trust Office, or (2) the
Company by the Trustee of such series or by any Holder of a Security of such
series shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Corporate
Secretary, at [address for corporate secretary] or at any other address
previously furnished in writing to the Trustee of such series by the Company.
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SECTION 1.06. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Securities (of any series) of any
event, (1) such notice shall be sufficiently given to Holders of Registered
Securities of such series if in writing and mailed, first-class postage prepaid,
to each Holder of a Registered Security of such series affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
Notice; and (2) such notice shall be sufficiently given to Holders of Bearer
Securities of such series if published in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and, if the Securities of such series are
then listed on The Stock Exchange of the United Kingdom and the Republic of
Ireland and such stock exchange shall so require, in London and, if the
Securities of such series are then listed on the Luxembourg Stock Exchange and
such stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange outside the United
States and such stock exchange shall so require, in any other required city
outside the United States or, if not practicable, in Europe, on a Business Day
at least twice, the first such publication to be not earlier than the earliest
date and not later than the latest date prescribed for the giving of such
notice. In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case
where notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice by publication to Holders of Bearer Securities given as provided
above. In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities of any
series as provided above, then such notification to Holders of such Bearer
Securities as shall be given with the approval of the Trustee for such series
shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.07. Language of Notices, etc.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall be
in the English language, except that any published notice may be in an official
language of the country of publication.
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SECTION 1.08. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind their respective successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause.
In case any provision in this Indenture or the Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders of Securities and coupons, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13. Governing Law.
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons) payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
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SECTION 1.15. Appointment of Agent for Service.
By the execution and delivery of this Indenture, the Company
hereby appoint the Trustee as their agent upon which process may be served in
any legal action or proceeding which may be instituted in any Federal or State
court in the Borough of Manhattan, The City of New York, arising out of or
relating to the Securities, the coupons or this Indenture. Service of process
upon such agent at the office of such agent at 450 West 33rd Street, New York,
New York 10001, Attention: Global Trust Services (or such other address in the
Borough of Manhattan, The City of New York, as may be the Corporate Trust Office
of the Trustee), and written notice of said service to the Company by the Person
serving the same addressed as provided in Section 105, shall be deemed in every
respect effective service of process upon the Company in any such legal action
or proceeding, and the Company hereby submits to the jurisdiction of any such
court in which any such legal action or proceeding is so instituted. Such
appointment shall be irrevocable so long as the Holders of Securities or coupons
shall have any rights pursuant to the terms thereof or of this Indenture until
the appointment of a successor by the Company with the consent of the Trustee
and such successor's acceptance of such appointment. The Company further agrees
to take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such designation
and appointment of such agent or successor. By the execution and delivery of
this Indenture, the Trustee hereby agrees to act as such agent and undertakes
promptly to notify the Company of receipt by it of service of process in
accordance with this Section.
SECTION 1.16. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company, or any Affiliate. No such
indenture, loan or debt agreement may be used to interpret this Indenture.
SECTION 1.17. Execution in Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons and the Global
Securities, if any, issued pursuant to this Indenture shall be in such form as
shall be established by or pursuant to a Board Resolution of the Company or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing
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such Securities or coupons, as evidenced by their execution of the Securities
or coupons. If the forms of Securities or coupons of any series are
established by action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Order of the
Company contemplated by Section 303 for the authentication and delivery of
such Securities or coupons.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article or Article Six.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall be
issuable in global and registered form without coupons. If so provided as
contemplated by Section 301, the Securities of a series also shall be issuable
in bearer form, with or without interest coupons attached. The definitive
Securities and coupons, if any, shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities or coupons.
SECTION 2.02. Form of Trustee's Certificate of
Authentication.
Subject to Section 614, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series referred to in the
within mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
-------------------------------
Authorized Officer
SECTION 2.03. Securities in Global Form.
If Securities of a series are issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Order of the Company to be delivered pursuant to Sections 303 or 304 with
respect thereto. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Order of the Company. If the Order of the
Company pursuant to Sections 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but
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need not be accompanied by or contained in an Officers' Certificate and need
not be accompanied by an Opinion of Counsel.
SECTION 2.04. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form, or in such other form
that is acceptable to the Depositary and the Trustee:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
SECTION 2.05. Form of Legend for Bearer Securities.
Any Bearer Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"Any United States person who holds this Security will be
subject to limitations under the United States income tax laws, including the
limitation provided in Sections 165(j) and 1287(a) of the Internal Revenue Code
of 1986, as amended."
ARTICLE THREE
The Securities
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution of the Company, and set forth in an Officers' Certificate
of the Company, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other series
issued by the Company);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities
of the series is payable;
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(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or any method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on Registered Securities on any Interest
Payment Date;
(5) the right, if any, to extend the interest payment periods
and the duration of such extension;
(6) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable;
(7) whether Securities of such series may be redeemed, and if
so, the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) whether Bearer Securities of the series are to be
issuable;
(10) if Bearer Securities of the series are to be issuable,
whether interest in respect of any portion of a temporary Bearer Security in
global form (representing all of the Outstanding Bearer Securities of the
series) payable in respect of an Interest Payment Date prior to the exchange of
such temporary Bearer Security for definitive Securities of the series shall be
paid to any clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;
(11) the date as of which any Bearer Securities of the series,
any temporary Bearer Security in global form and any Global Securities shall be
dated if other than the date of original issuance of the first Security of the
series to be issued;
(12) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer Securities of
the series, if any, shall be issuable if other than the denomination of $5,000;
(13) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable (if other
than the currency of the United States of America);
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(14) if the amount of payments of principal of (and premium,
if any) or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(16) any Events of Default or covenants of the Company
pertaining to the Securities of the series;
(17) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a Person who is a
United States Alien in respect of taxes or similar charges withheld or deducted
and, if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts;
(18) whether any Securities of the series are to be issuable
in whole or in part in the form of one or more Global Securities and, if so, (a)
the Depositary with respect to such Global Security or Securities and (b) the
circumstances under which beneficial owners of interests in any such Global
Security may exchange such interest for Securities of the same series and of
like tenor and of any authorized form and denomination, and the circumstances
under which any such exchange may occur, if other than as set forth in Section
305;
(19) if any of such Securities are to be issued in global form
and are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form and terms of
such certificates, documents, or conditions; and
(20) any other terms of the series (which terms shall not be
inconsistent with the terms of this Indenture).
All Securities of any one series and the coupons appertaining
to Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto. If
any of the terms of the series are established by action taken pursuant to a
Board Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting forth the terms of
the series. Such Board Resolution may provide general terms or parameters for
Securities of such series and may provide that the specific terms of particular
Securities of such series, and the Persons authorized to determine such terms or
parameters, may be determined in accordance with or pursuant to the Order of the
Company referred to in the third paragraph of Section 303.
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SECTION 3.02. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Registered Securities of each series
shall be issuable in denominations of $1,000 or any integral multiple thereof
and the Bearer Securities of each series, if any, shall be issuable in the
denomination of $5,000.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Corporate Secretary or one
of its Assistant Corporate Secretaries. The signature of any of these officers
on the Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Company. Securities
and coupons bearing the manual or facsimile signatures of individuals who were
at any time relevant to the authorization thereof the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed on behalf
of the Company to the Trustee for authentication by the Trustee together with an
Order of the Company for the authentication and delivery of such Securities, and
the Trustee in accordance with such Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original issuance, a
Bearer Security may be delivered only outside the United States and only if the
Trustee shall have received from the Person entitled to receive such Bearer
Security a certificate in the form required by Section 311; provided, further,
that, with respect to Securities of a series constituting a medium term note
program, the Trustee shall authenticate and deliver Securities of such series
for original issue from time to time in the aggregate principal amount
established for such series pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by an Order
of the Company. The maturity dates, original issue dates, interest rates and any
other terms of the Securities of such series shall be determined by or pursuant
to such Order of the Company and procedures. If provided for in such procedures,
such Order of the Company may authorize authentication and delivery pursuant to
oral instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through 315(d) of the Trust Indenture Act) shall be fully protected in relying
upon:
(a) the Board Resolution of the Company or indenture
supplemental hereto establishing the form of the Securities of that series
pursuant to Section 201 and the terms of the Securities of that series pursuant
to Section 301 (or, in the case of a Board Resolution, pursuant to which such
form and terms are established);
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(b) an Officer's Certificate pursuant to Sections 201 and 301
and complying with Section 102; and
(c) an Opinion of Counsel complying with Section 102 stating,
(i) that the forms of such Securities and coupons, if any, have been established
by or pursuant to a Board Resolution of the Company or by an indenture
supplemental hereto, as permitted by Section 201 and in conformity with the
provisions of this Indenture; (ii) that the terms of such Securities have been
established by or pursuant to a Board Resolution of the Company or by an
indenture supplemental hereto, as permitted by Sections 201 and 301 and in
conformity with the provisions of this Indenture; (iii) that such Securities,
together with the coupons, if any, appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture, enforceable in accordance with their respective terms, except to
the extent that the enforcement of such obligations may be subject to bankruptcy
laws or insolvency laws or other similar laws, general principles of equity and
such other qualifications as such counsel shall conclude are customary or do not
materially affect the rights of the Holders of such Securities; (iv) that all
laws and requirements in respect of the execution and delivery of the Securities
have been complied with; and (v) such other matters as the Trustee may
reasonably request. With respect to Securities of a series constituting a medium
term note program, the Trustee may conclusively rely on the documents and
opinion delivered pursuant to Sections 201 and 301 and this Section 303, as
applicable (unless revoked by superseding comparable documents or opinions) as
to the authorization of the Board of Directors of any Securities delivered
hereunder, the form thereof and the legality, validity, binding effect and
enforceability thereof.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the documents
otherwise required pursuant to the preceding clauses (a), (b) or (c) prior to or
at the time of issuance of each Security, but such documents shall be delivered
prior to or at the time of issuance of the first Security of such series. After
any such first delivery, any separate Request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
If such forms or terms have been so established by or pursuant
to a Board Resolution of the Company or by an indenture supplemental hereto as
permitted by Sections 201 and 301, the Trustee shall have the right to decline
to authenticate and deliver any Securities of such series:
(i) if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken;
(ii) if the Trustee in good faith by its board of directors,
executive committee or a trust committee of directors or Responsible Officers of
the Trustee in good faith determines that
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such action would expose the Trustee to personal liability to Holders of any
Outstanding series of Securities; or
(iii) if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties and immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Order of the Company with respect
to such series, authenticate and deliver one or more Global Securities in
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) shall bear a legend as required by Section 204.
Each Registered Security shall be dated the date of its
authentication. Each Global Security, each Bearer Security and any temporary
Bearer Security in global form shall be dated as of the date specified as
contemplated by Section 301.
No Security or related coupon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured and paid or
payment duly provided for have been detached and canceled.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon an Order of the Company the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities. In
the case of Bearer Securities of any series, such temporary Securities may be in
global form, representing all of the outstanding Bearer Securities of such
series. Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the
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temporary Securities of such series at the office or agency of the Company in
a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor (at an office or agency of the Company in the case of
Bearer Securities) a like principal amount of definitive Securities of the
same series of authorized denominations and of like tenor; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no definitive
Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the Person entitled to
receive the definitive Bearer Security a certificate in the form required by
Section 311. Until so exchanged, the temporary Securities of any series,
including temporary Securities in global form, shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.05. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at one of its offices or
agencies designated pursuant to Section 1002 a register (referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities of each series and of transfers and exchanges of Registered
Securities of such series. Said office or agency is hereby appointed the
security registrar (referred to as the "Security Registrar") for the purpose of
registering Registered Securities of each series and transfers and exchanges of
Registered Securities of such series as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment maintained
for such purpose for such series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, Stated
Maturity and original issue date, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Registered Securities of any
series (except a Global Security representing all or a portion of such series)
may be exchanged for Registered Securities of the same series, Stated Maturity
and original issue date, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series, Stated Maturity
and original issue date, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
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may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, to register the transfer of or
to exchange Securities of any series during a period of 15 Business Days
immediately preceding the date notice is given identifying the serial numbers of
the Securities of that series called for redemption, or (ii) to issue, to
register the transfer of or to exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series, provided that such Registered Security shall be
immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any Global Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 306, 906 or 1107 for Securities
registered in the name of, and a transfer of a Global Security
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of any series may be registered to, any Person other than the Depositary for
such Global Security or its nominee only if:
(i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time
such Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor Depositary is not appointed by
the Company within 90 days;
(ii) the Company executes and delivers to the Trustee an Order
of the Company that such Global Security shall be so exchangeable and the
transfer thereof so registrable; or
(iii) there shall have occurred and be continuing an Event of
Default or an event which, with the giving of notice or lapse of time, would
constitute an Event of Default with respect to the Securities of such series.
Upon the occurrence in respect of any Global Security of any
series of any one or more of the conditions specified in clauses (i), (ii) or
(iii) of the preceding sentence or such other conditions as may be specified as
contemplated by Section 301 for such series, then without unnecessary delay, but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities of
that series in aggregate principal amount equal to the principal amount of such
Global Security, executed by the Company.
On or after the earliest date on which such interests may be
so exchanged, such Global Securities shall be surrendered from time to time by
the Depositary and in accordance with instructions given to the Trustee and the
Depositary (which instructions shall be in writing but need not be contained in
or accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Order of the Company with respect thereto
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or in part, for definitive Securities of the same series without service
charge. The Trustee shall authenticate and make available for delivery, in
exchange for each portion of such surrendered Global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such Global Security to be
exchanged which (unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the Global Security shall be issuable only in the form
in which the Securities are issuable, as specified as contemplated by Section
301) shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 Business Days before any selection of Securities of
that series to be redeemed and ending on the relevant Redemption Date; and
provided, further, that (unless otherwise specified as contemplated by Section
301) no Bearer Security delivered in exchange for a portion of a Global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such Global
Security shall be returned by the Trustee to the Depositary in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a Global
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Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date for such Security and before
the opening of business at such office or agency on the next Interest Payment
Date, or (ii) any Special Record Date for such Security and before the
opening of business at such office or agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, interest shall
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may
be, only to the Person to whom interest in respect of such portion of such
Global Security is payable in accordance with the provisions of this
Indenture.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series, Stated Maturity and original issue date, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
Request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series, Stated Maturity
and original issue date, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains. In case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security or coupon; provided, however, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States; and provided, further,
that, with respect to any such coupons, interest represented thereby (but not
any additional amounts payable as provided in Section 1004), shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security, or in exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional
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contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon shall be at any time enforceable by anyone,
and any such new Security and coupons, if any, shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest. Interest, if any, is
paid on Bearer Securities to Holders of coupons. In case a Bearer Security of
any series is surrendered in exchange for a Registered Security of such
series after the close of business (at an office or agency in a Place of
Payment for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture. Any
interest on any Registered Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this clause. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of
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such series at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publication shall not
be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions
of this Indenture. (2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the Person in whose name such Registered
Security is registered as the absolute owner of such Registered Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by any notice to
the contrary. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary (or its nominee) shall have any rights under
this Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global
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Security or any Security represented thereby for all purposes whatsoever.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of
a Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 3.09. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by the
Trustee. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities and coupons held by the Trustee shall be destroyed
and certification of their destruction delivered to the Company, unless an
Order of the Company shall direct that canceled Securities be returned to the
Company.
The repayment of any principal amount of Securities
pursuant to such option of the Holder to require repayment of Securities
before their Stated Maturity, for purposes of this Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with an Order that such
Securities be canceled.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section
3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
SECTION 3.11. Form of Certification by a Person Entitled to
Receive a Bearer Security.
Whenever any provision of this Indenture or the form of
Security contemplates that certification be given by a Person entitled to
receive a Bearer Security, such certification shall be provided substantially
in the form of the following certificate, with only such changes as shall be
approved by the Company:
[Form of Certificate to Be Given By Person Entitled to Receive
Bearer Security] Certificate
[Name of Security]
This is to certify that the above-captioned Security is not
being acquired by or on behalf of a United States person, or for offer to
resell or for resale to a United States person, or, if a beneficial interest
in the Security is being acquired by a United States person, that such person
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is a financial institution or is acquiring through a financial institution
and that the Security is held by a financial institution that has agreed in
writing to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder and that such person or financial institution is not purchasing
for offer to resell or for resale within the United States. If this
certificate is being provided by a clearing organization, it is based on
statements provided to it by its member organizations. As used herein,
"United States" means the United States of America (including the States and
the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction, and "United States person" means any citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof and any estate or trust the income of which is
subject to United States Federal income taxation regardless of its source. If
the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the
above-captioned Securities in bearer form purchased from it; provided,
however, that, if the undersigned has actual knowledge that the information
contained in such a certificate is false, the undersigned will not deliver a
Security in temporary or definitive bearer form to the person who signed such
certificate notwithstanding the delivery of such certificate to the
undersigned.
We undertake to advise you by telecopy if the above
statement as to beneficial ownership is not correct on the date of delivery
of the above-captioned Securities in bearer form as to all of such
Securities. We understand that this certificate is required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings. Dated: __________, 19__
ARTICLE FOUR
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon a Request of the Company cease to
be of further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for, and any
right to receive additional amounts, as provided in Section 1004), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(1) either
(A) all Securities theretofore authenticated and delivered
and all coupons appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 3.05, (ii) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 11.06, and (iv)
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Securities and coupons for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (B)(i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust dedicated
solely for such purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with. In the event there are
Securities of two or more series hereunder, the Trustee shall be required to
execute an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Securities of all series
as to which it is Trustee and if the other conditions thereto are met. In the
event there are two or more Trustees hereunder, then the effectiveness of any
such instrument shall be conditioned upon receipt of such instruments from
all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Sections 305, 306, 402, 1002 and 1003 shall survive.
SECTION 4.02. Application of Trust Money.
Subject to the provision of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the
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Trustee, but such money need not be segregated from other funds, except to
the extent required by law.
ARTICLE FIVE
Remedies
SECTION 5.01. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of any interest
(including any additional amounts due under Section 10.04 as specified
therein) upon any Security of that series when it becomes due and payable and
continuance of such default for a period of 30 days; or
(2) the Company defaults in the payment of the principal
(including any additional amounts due under Section 10.04 as specified
therein) of (or premium, if any, on) any Security of that series at its
Maturity and continuance of such default for a period of three Business Days
thereafter; or
(3) the Company defaults in the deposit of any sinking fund
payment when and as due by the terms of a Security of that series and
continuance of such default for a period of three Business Days thereafter;
(4) the Company defaults in the performance or breach of
any covenant or warranty of the Company, as the case may be, in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in or pursuant to this Indenture solely for the
benefit of one or more series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than that series) or
under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company (including this Indenture), whether such indebtedness
now exists or shall hereafter be created, which default shall constitute a
failure to pay in excess of $5,000,000 of the principal or interest of such
indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or shall have resulted in such indebtedness
in an amount in excess of $5,000,000 becoming or being declared due and
payable prior to the date
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on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled within a period of 90 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such indebtedness
to be discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; provided,
however, that, subject to the provisions of Sections 601 and 602, the Trustee
shall not be deemed to have knowledge of such default unless either (A) a
Responsible Officer of the Trustee assigned to Global Trust Services (or any
successor division or department of the Trustee) shall have actual knowledge
of such default or (B) the Trustee shall have received written notice thereof
from the Company, from any Holder, from the holder of any such indebtedness
or from the trustee under any such mortgage, Indenture or other instrument;
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of any of the
Company, in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than the Company, or
any of its Affiliates seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for any of the Company, or
for any substantial part of the property of the Company, or ordering the
liquidation or winding up of the affairs of any of the Company and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days;
(7) the commencement by the Company of a case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of it in a case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official in respect of it or any substantial part of
its property, or the making by it of an assignment for the benefit of
creditors, or its admission in writing of its inability to pay its debts
generally as they become due, or its taking of corporate action in
furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 33% in principal amount of
the Outstanding Securities of that series may declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such
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portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue interest on all Securities of that series;
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in
such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 607;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission and annulment shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such default
continues for a period of three Business Days, the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holders of such Securities
and coupons, the whole amount then due and payable on such Securities and
coupons for principal (and premium, if any) and interest, with interest on
any overdue principal
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(and premium, if any) and on any overdue interest, to the extent that payment
of such interest shall be legally enforceable, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due to the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, or any other obligor
upon the Securities or the property of the Company, or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company or any other obligor for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 607) and of the Holders of Securities and coupons allowed in
such judicial proceeding; and (ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder of Securities and coupons to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders of Securities and
coupons, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or coupons or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Securities or Coupons.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest on the Securities and
coupons in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities and coupons for principal (and
premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 5.07. Limitation on Suits.
No Holder of any Security of any series or any related
coupons shall have any right to institute any proceeding, judicial or
otherwise with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series; it
being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture except in the manner herein or therein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 307) interest on such Security or payment of such
coupon on the Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Securities and coupons shall be restored severally
and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise shall, not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders of
Securities or coupons may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, expose the Trustee to personal liability or be
unduly prejudicial to Holders not joined therein; and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default:
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series; or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any
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party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Holder of any Security or coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security or the payment
of any coupon on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
The Trustee
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series:
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (2) in
the absence of bad faith on its part, the Trustee may, with respect to
Securities of such series, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to Securities
of any series has occurred and is continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section; (2) the Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; (3) the 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 a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and (4) no provision
of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the Trustee shall
transmit, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, notice of all such defaults hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series
or in the payment of any sinking fund installment with respect to Securities
of such series, the 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 or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.03. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other paper
or
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document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Request or Order and any
resolution of the Board of Directors of the Company shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the 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, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(g) the 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 Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) except as otherwise provided in Section 501(5), the
Trustee shall not be charged with knowledge of any Event of Default with
respect to the Securities of any series for which it is acting as Trustee
unless either (1) a Responsible Officer of the Trustee assigned to Global
Trust Services (or any successor division or department of the Trustee) shall
have actual knowledge of the Event of Default or (2) written notice of such
Event of Default shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such Securities.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) and in any coupons shall be
taken as the statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their
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correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, or of the Securities or coupons, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder
and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and
coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company or an Affiliate of either with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel and any
Authenticating Agent), except any such expense, disbursement or advance as
may be attributable to its negligence, willful misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, willful
misconduct 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 of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on particular Securities.
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SECTION 6.08. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310(b)
of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, or any other Person permitted
by the Trust Indenture Act to act as trustee under an indenture qualified
under the Trust Indenture Act and that has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of
at least $50,000,000, is subject to supervision or examination by Federal,
State or District of Columbia authority and is not otherwise ineligible under
Section 310(a)(5) of the Trust Indenture Act. If such Corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the Company or
by any such Holder; or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation; then, in any such case, (i) the Company, by Board
Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all other similarly situated Holders, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 611, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such Series are
issuable as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
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successor Trustee, without any further act, deed or conveyance shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or on the request of the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or on the request of
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien provided for in Section 607,
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article,
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without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of Section 311 and any other provision of the Trust Indenture
Act regarding the collection of claims against the Company (or any such other
obligor).
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of not less than $50,000,000 and subject
to supervision or examination by Federal, State or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an
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Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall (i) mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issuable as
Bearer Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor Authenticating Agent
has its principal office if such office is located outside the United States.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section. The Trustee agrees to
pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments in accordance with the provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form: This is one of
the Securities of the series referred to in the within- mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By ______________________________
As Authenticating Agent
By ______________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and the Company
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders.
In accordance with Section 312(a) of the Trust Indenture Act,
the Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company, or
any of its Paying Agents other than the Trustee, as to
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the names and addresses of the Holders of Securities as of the preceding May
15 or November 15, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to
Holders.
(a) The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of any of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312 of the Trust Indenture
Act.
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15 with respect to
any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding May 15 and the
date of this Indenture. (b) The Trustee shall transmit the reports
required by Section 313(b) of the Trust Indenture Act at the times
specified therein. (c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Sections
313(c) and 313(d) of the Trust Indenture Act.
SECTION 7.04. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of said sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a
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security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the Corporation formed by any such consolidation or into
which it is merged or the Person which acquires by conveyance or transfer, or
which leases, its properties and assets substantially as an entirety shall be a
Corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, in the case of the Company, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities; in the
case of the Company the performance of every covenant of this Indenture on the
part of the Company;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease complies with this Section 801 and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
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SECTION 8.02. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Corporation or any conveyance, transfer or lease of the
Company's properties and assets substantially as an entirety in accordance with
Section 801, the successor Corporation formed by such consolidation or into
which it is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company, as applicable, under this Indenture with the same effect as if such
successor Corporation had been named as the Company, as applicable, herein, and
thereafter, except in the case of a lease, the predecessor Corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders of Securities or coupons,
the Company, when authorized by Board Resolutions, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the
Company and the assumption by any such successor of the covenants of the
Company, herein and in the Securities and coupons; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal (or premium,
if any) on Registered Securities or of principal (or premium, if any) or any
interest on Bearer Securities, to permit Registered Securities to be exchanged
for Bearer Securities or to permit the issuance of Securities in uncertificated
form,
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provided any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series, to contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series or any related coupons
in any material respect; or
or
(10) to conform this Indenture to any amendments to the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolutions, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security or coupon affected
thereby:
(1) change the Stated Maturity of the principal of, or of any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the method of calculating the rate of
interest thereon, or change any obligation of the Company to pay
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additional amounts pursuant to Section 1004 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or change any Place of Payment in the United States where, or
the coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1304 for quorum or voting; or
(3) change any obligation of the Company to maintain an office
or agency in each Place of Payment, or any obligation of the Company to maintain
an office or agency outside the United States pursuant to Section 1002; or
(4) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder of a Security or coupon with respect to changes in the references
to "the Trustee" and concomitant changes in this Section and Section 1009, or
the deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof. The Company shall have the right to set a record date for the
solicitation of any consents under this Article Nine, which record date shall be
set in accordance with Section 104.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 315 of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which
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affects the Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in accordance
with the terms of the Securities, any coupons appertaining thereto and this
Indenture. Any interest due on Bearer Securities on or before Maturity, other
than additional amounts, if any, payable as provided in Section 1004 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 10.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series (but,
except as otherwise provided below, unless such Place of Payment is located
outside the United States, not Bearer Securities) may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in
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respect of the Securities of that series and this Indenture may be served.
The Company initially hereby appoints the Trustee, its office or agency for
each of said purposes. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for such series
which is located outside the United States where Securities of such series
and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of such
series pursuant to Section 1004); provided, however that if the Securities of
such series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London or Luxembourg or
any other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect
of any series of Securities or shall fail to furnish the Trustee with the
address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1004) at the place specified for the purpose
pursuant to Section 301 or, if no such place is specified, at the main office
of the Trustee in London, and the Company hereby appoints the Trustee as its
agent to receive such respective presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest in U.S. dollars
(including additional amounts payable in respect thereof) on any Bearer Security
may be made at the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York if (but only if) payment of the full amount of
such principal, premium, interest or additional amounts at all offices outside
the United States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
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SECTION 10.03. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or prior to each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal of (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Order of the Company direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Any sums deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Request of the
Company, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
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thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once in an Authorized Newspaper in
each Place of Payment or mailed to each such Holder, or both, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.04. Additional Amounts.
If the Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Security of any
series or any coupon appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of principal of (or premium, if any) or interest on, or in respect of,
any Security of any series or any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be deemed
to include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or the related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 10.05. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and its rights (charter and statutory) and franchises.
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SECTION 10.06. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business, or the business of the Subsidiaries, to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties or disposing the Company of them if such
discontinuance or disposal is, in the judgment of the Company, desirable in the
conduct of its business or the business of the Subsidiaries and not
disadvantageous in any material respect to the Holders of Securities.
SECTION 10.07. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon it, or upon the income, profits
or property of the Company or any of the Subsidiaries, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any of the Subsidiaries; provided, however,
that none of the Company or any of the Subsidiaries shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
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SECTION 10.08. Statement as to Default.
(a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof, a
certificate, signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company stating whether or not to
the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(b) The Company will deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after notice or
lapse of time would become an Event of Default pursuant to clause (4) of Section
501.
SECTION 10.9. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1006 and 1007 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 11.01. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
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SECTION 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of all of the Securities of any series, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 11.03. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series (other than Securities of such series held by the
Company), not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless otherwise provided
in the Securities of a series, partial redemptions must be in an amount not less
than $1,000,000 principal amount of Securities.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case. A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest, if any, on,
all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 1002); and provided,
further, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside of the United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires with respect to any Registered Security, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series, Stated Maturity and of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
Except as otherwise specified as contemplated by Section 301,
if a Global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary in global form, without
service charge, a new Global Security or Securities of the same series, Stated
Maturity and of any authorized denomination as requested by the Depositary, in
an aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Global Security so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series
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is herein referred to as an "optional sinking fund payment." If provided for
by the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any series
as provided for by the terms of Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 and stating the basis for such credit
and that such Securities have not previously been so credited and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 13.01. Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
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SECTION 13.02. Call Notice and Place of Meeting.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 13.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 13.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned
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meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 13.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting
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to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 13.06. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 13.07. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
SECTION 14.01. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part thereof,
or for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer, director
or employee, as such, past, present or future of the Company or of any
predecessor or successor Corporation (either directly or through the Company or
a predecessor or successor Corporation of either of them), whether by virtue of
any constitutional provision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly agreed and
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understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer, director or employee,
past, present or future, of the Company or of any predecessor or successor
Corporation of either of them, either directly or indirectly through the
Company, or any predecessor or successor Corporation of either of them,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or to be implied herefrom or therefrom, and that any
such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issuance of the Securities; provided, however, that nothing
in this Section 1401 shall be interpreted to relieve of its corporate
obligations set forth in this Indenture by virtue of it being a stockholder
of the Company.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 15.01. Agreement of Subordination.
The Company covenants and agrees, and each Holder of
Securities issued hereunder by his acceptance thereof likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this
Article Fifteen; and each Holder of Securities, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest
on all Securities issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Fifteen shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 15.02. Limitations on Payments to Holders.
In the event and during the continuation of any default in the
payment of principal, premium, interest or any other payment due on any Senior
Indebtedness continuing beyond the period of grace, if any, specified in the
instrument evidencing such Senior Indebtedness, unless and until such default
shall have been cured or waived or shall have ceased to exist, and in the event
that the maturity of any Senior Indebtedness has been accelerated because of a
default, then no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or premium, if
any, or interest on the Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any holder when such payment is prohibited
by the preceding paragraph of this Section 15.02, such payment shall be held in
trust for the benefit of, and shall be paid over or
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delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant
to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the holders of
the Senior Indebtedness (or their representative or representatives or a
trustee) notify the Trustee within 90 days of such payment of the amounts
then due and owing on the Senior Indebtedness and only the amounts specified
in such notice to the Trustee shall be paid to the holders of Senior
Indebtedness.
SECTION 15.03. Payments in Bankruptcy.
Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is made on account of
the principal (and premium, if any) or interest on the Securities; and upon any
such dissolution or winding-up or liquidation or reorganization any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provisions of this Article
Fifteen, shall by paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders of
Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the Holders of the Securities before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Fifteen, the words, "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or
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securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least
to the extent provided in this Article Fifteen with respect to the Securities
to the payment of all Senior Indebtedness which may at the time be
outstanding; provided that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of the Senior Indebtedness are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 15.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in this Indenture. Nothing in Section 15.02 or in this Section 15.03
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
SECTION 15.04. Subrogation of Securities.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Fifteen, and no payment over
pursuant to the provisions of this Article Fifteen, to or for the benefit of the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article Fifteen are and are intended solely for the
purposes of defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of the Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of any Securities
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Fifteen
of the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
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Upon any payment or distribution of assets of the Company
referred to in this Article Fifteen, the Trustee, subject to the provisions of
Section 601, and the Holders of the Securities shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount hereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen.
SECTION 15.05. Authorization by Holders.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice to Trustee.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company which would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Fifteen. Notwithstanding
the provisions of this Article Fifteen or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article Fifteen,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the principal office of the Trustee from the Company
or a holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided that if the Trustee shall not have received the
notice provided for in this Section 15.06 at least two business days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (or
premium, if any) or interest on any Debenture), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two business days prior to such date.
The Trustee, subject to the provisions of Section 601, shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Fifteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
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held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Fifteen, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 15.07. Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Fifteen in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fifteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 601, the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders of Securities, the Company or any other Person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article Fifteen or otherwise.
SECTION 15.08. Acts of Holders of Senior Indebtedness.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Fifteen or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UTILICORP UNITED, INC.
By:
------------------------------------
Name: [ ]
Attest:
Title: President
The Chase Manhattan Bank, as Trustee
By:
------------------------------------
Name:
Attest:
Title: Senior Trust Officer
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EXHIBIT 4(h)
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GUARANTEE AGREEMENT
UCU CAPITAL TRUST I
Dated as of ______ __, 1999
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<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _______ ___, 1999,
is executed and delivered by UTILICORP UNITED, INC., a Delaware corporation (the
"Guarantor"), and The Chase Manhattan Bank, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Securities (as defined herein) and of UCU Capital Trust I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of _______ __, 1999, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Issuer, the Issuer
is issuing on the date hereof _________ preferred securities, stated liquidation
amount $25 per security, having an aggregate liquidation amount of $___________,
designated the Preferred Securities (the "Preferred Securities"); and
WHEREAS, as an incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay in full, to the Holders of the 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
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
Unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above shall have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Guarantee shall have the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" shall be to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections or recitals
shall be to Articles and Sections of, or recitals to, this Guarantee unless
otherwise specified;
(e) a term defined in the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation (the "Trust Indenture Act") shall
have the same meaning when used in this Guarantee unless otherwise defined in
this Guarantee; and
(f) a reference to the singular shall include the plural and vice versa,
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable.
GUARANTEE AGREEMENT
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(g) the following terms shall have the following meanings:
"Affiliate" of any specified Person shall mean any other Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person shall mean the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" shall have meanings correlative to
the foregoing.
"Authorized Officer" of a Person shall mean any Person that is authorized
to bind such Person.
"Business Day" shall mean any day other than a Saturday or Sunday or a day
on which banking institutions in New York City are authorized or required by law
or executive order to remain closed, or a day on which the trustee under the
Indenture or the principal office of the Property Trustee under the Declaration
is closed for business.
"Corporate Trust Office" shall mean the principal office of the Guarantee
Trustee, at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at [450 West 33rd
Street, 15th Floor, New York, New York 10001, Attention: Corporate Trust
Administration.]
"Covered Person" shall mean any Holder or beneficial owner of Securities.
"Debentures" shall mean the series of debentures to be issued by the
Debenture Issuer under the Indenture and to be purchased by the Issuer and held
by the Property Trustee.
"Debenture Issuer" shall mean Utilicorp United Inc., in its capacity as
issuer of the Debentures under the Indenture.
"Direction" by a person shall mean 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" shall mean the failure of the Guarantor to perform any
of its payment or other obligations under this Guarantee.
"Guarantee Payments" shall mean the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid or
made by the Issuer: (i) any accumulated and unpaid Distributions (as defined in
the Declaration) that are required to be paid on the Securities, to the extent
the Issuer has funds available therefor, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption with respect
to the Securities upon redemption of the related Debentures by the Debenture
Issuer upon the occurrence of a Tax Event Redemption or upon repayment of the
Debentures at the maturity thereof, to the extent the Issuer has funds available
therefor, and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than following redemption of the Securities or
the distribution of Debentures to the Holders in exchange for the Securities),
the lesser of (a) the aggregate of the stated liquidation amount and all
accumulated
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and unpaid Distributions on the Securities to the date of payment,
to the extent the Issuer has funds available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders of the
Securities in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" shall mean The Chase Manhattan Bank, until a Successor
Guarantee Trustee to any of them has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter shall mean
each such Successor Guarantee Trustee.
"Holder" shall have the meaning given such term in the Declaration.
"Indemnified Person" shall mean the Guarantee Trustee, any Affiliate of
the Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Guarantee Trustee.
"Indenture" shall mean the indenture, dated as of _________ __, 1999,
among the Guarantor and The Chase Manhattan Bank, as trustee, as amended and
supplemented (including provisions of the Trust Indenture Act that are deemed
incorporated therein), pursuant to which the Debentures are to be issued.
"Majority in Liquidation Amount" shall mean, except as provided in the
terms of the Securities or the Trust Indenture Act, the Holders of outstanding
Securities, voting together as a single class, or, as the context may require,
the Holders of outstanding Preferred Securities or the Holders of outstanding
Common Securities, voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Officers' Certificate" shall have the meaning given such term in the
Declaration.
"Person" shall mean 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.
"Property Trustee" shall mean The Chase Manhattan Bank, in its capacity as
property trustee under the Declaration.
"Responsible Officer" shall mean, with respect to the Guarantee Trustee,
any officer within the Corporate Trust Office, including any vice- president,
any assistant vice-president, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the Corporate Trust Office customarily
performing functions similar to those performed by any of the above designated
officers and also shall mean, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred due to that officer's
knowledge of and familiarity with the particular subject.
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"Successor Guarantee Trustee" shall mean a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Tax Event Redemption" shall have the meaning given such term in the
Declaration.
"Trust Enforcement Event" shall have the meaning given such term in the
Declaration.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act: Application.
(a) This Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and, to the extent applicable,
shall be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee conflicts
with the duties imposed by Section 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties of the Trust Indenture Act shall control.
SECTION 2.2. List of Holders of 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 Securities ("List of Holders") (i) within one Business Day
after January 1 and July 1 of each year, and (ii) at any other time, within 30
days of receipt by the Guarantor of a written request from the Guarantee Trustee
for a List of Holders as of a date no more than 15 days before such List of
Holders is given to the Guarantee Trustee. If at any time the List of Holders
does not differ from the most recent List of Holders given to the Guarantee
Trustee by the Guarantor, the Guarantor shall not be obligated to provide such
List of Holders. The Guarantee Trustee shall preserve, in as current form as is
reasonably practicable, all information contained in Lists of Holders it
receives in its capacity as Guarantee Trustee; provided that 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, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Preferred Securities), the Guarantee
Trustee shall provide to the Holders of the 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 also shall comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4. Periodic Reports to Guarantee Trustee.
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The Guarantor shall provide to the 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.
SECTION 2.5. Evidence of Compliance 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
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 the Securities may, by
vote, on behalf of the Holders of all of the 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. No such waiver shall
extend to any subsequent Event of Default or other default or impair any right
consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all Events of Default actually known to a
Responsible Officer of 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 a Responsible
Officer of the Guarantee Trustee determines in good faith that the withholding
of such notice is in the interests of the Holders of the 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 of the Guarantee Trustee, charged with the
administration of the Declaration, shall have obtained actual knowledge.
SECTION 2.8. Conflicting Interests.
The Declaration and the Indenture shall be deemed to be specifically
described in this 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 GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
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(a) This Guarantee shall be held by the Guarantee Trustee for the benefit
of the Holders of the Securities. The Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Securities exercising his or her
rights 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 pursuant to Section 4.2. 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 actually known to a Responsible Officer of a
Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall
enforce this Guarantee for the benefit of the Holders of the Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only those duties specifically set forth in this
Guarantee, and no implied covenants shall be read into this Guarantee 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 the rights and powers vested in it by this Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent individual would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee 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 such Events of Default that may have occurred: (A) the duties and
obligations of the Guarantee Trustee shall be determined solely by reference to
the express provisions of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of those duties and obligations specifically
set forth in this Guarantee, and no implied covenants or obligations shall be
read into this Guarantee 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; but in
the case of any such certificates or opinions that are specifically required to
be furnished to the Guarantee Trustee under this Guarantee, the Guarantee
Trustee shall be under a duty to examine such certificates or opinions to
determine whether or not they conform to the requirements of this Guarantee;
(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
<PAGE>
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Majority in Liquidation Amount of the Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of this Guarantee, or the exercise of any trust or power
conferred upon each Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee or indemnity, reasonably satisfactory to the
Guarantee Trustee, 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 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 Guarantee
shall be sufficiently evidenced by a Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Guarantee, 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 specifically prescribed in this Guarantee) may
request, in the absence of bad faith on its part, and conclusively 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 record, file or register
any instrument (or rerecord, refile or reregister such instrument).
(v) The Guarantee Trustee may consult with counsel of its choice or other
experts. The advice or opinion of such counsel and experts with respect to legal
matters or advice within the scope of such experts' area of expertise, and the
written advice or opinion of such counsel with respect to such matters, shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by the Guarantee Trustee under this Guarantee 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
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee 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 at the request or direction
of any Holder of the Securities, unless such Holder has provided to the
Guarantee Trustee security and indemnity, reasonably
<PAGE>
-8-
satisfactory to the Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred thereby,
including such reasonable advances as may be requested by the Guarantee Trustee.
The foregoing will not relieve the Guarantee Trustee, upon the occurrence of an
Event of Default under this Guarantee, of its obligation to exercise the rights
and powers vested in it by this Guarantee.
(vii) The Guarantee Trustee shall be bound to investigate the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or powers
vested in it by this Guarantee or perform any duties imposed upon it by this
Guarantee either directly or by or through agents, nominees, custodians or
attorneys, and the Guarantee Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed by the Guarantee
Trustee with due care under this Guarantee.
(ix) Any action taken by the Guarantee Trustee or its agents under this
Guarantee shall bind the Holders of the 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 investigate the
authority of the Guarantee Trustee so to act or the Guarantee Trustee's
compliance with any of the terms and provisions of this Guarantee, both of which
shall be evidenced conclusively by the Guarantee Trustee's or its agent's taking
such action.
(x) Whenever in the administration of this Guarantee, the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the Holders of a Majority in
Liquidation Amount of the Securities, (B) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received and
(C) shall be protected in conclusively relying on or acting in accordance with
such instructions.
(b) No provision of this Guarantee 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 to act 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.
<PAGE>
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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 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
the requirements of the applicable supervising or examining authority, 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 published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.l(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set forth 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 Trustees.
(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 a written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor Guarantee
Trustee has been appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or subsequent accounting)
by a written instrument 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 a written
instrument 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 shall
have 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
<PAGE>
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jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, it may deem proper, appoint a
Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions of any
Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts accrued to the date of such termination, removal
or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
To the extent set forth in this Guarantee, the Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders of the Securities the
Guarantee Payments (without duplication of amounts 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 of the Securities or by causing the Issuer to pay such
amounts to the Holders of the Securities.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee and of
any liability to which this Guarantee 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 Guarantee 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 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 Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with, the Securities;
<PAGE>
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(c) any failure, omission, delay or lack of diligence on the part of the
Holders of the Securities to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders of the Securities pursuant to the terms
of the Securities, or any action on the part of the Issuer granting indulgence
or an 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 Securities;
(f) the settlement or compromise of any obligation guaranteed or incurred
in this Guarantee; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of the Guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor under this Guarantee
shall be absolute and unconditional under any and all circumstances. There shall
be no obligation of the Holders of the Securities 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 Securities have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee in respect of this Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, any Holder
of the Securities may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee, without first instituting
a legal proceeding directly against the Issuer, the Guarantee Trustee or any
other Person. Notwithstanding the foregoing, if the Guarantor has failed to make
a Guarantee Payment, a Holder of Securities may directly institute a proceeding
against the Guarantor for enforcement of this Guarantee for such payment. The
Guarantor waives any right or remedy to require that any action on this
Guarantee be brought first against the Issuer or any other Person before
proceeding directly against the Guarantor.
SECTION 5.5. Guarantee of Payment.
This Guarantee constitutes a guarantee of payment and not of collection.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all the rights, if any, of the
Holders of the Securities against the Issuer with respect to any amounts paid to
such Holders by the Guarantor under this 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
<PAGE>
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of payment under this Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this 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 of the Securities and to pay over such
amount to such 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 Securities, and that the
Guarantor shall be liable as principal and as debtor under this Guarantee to
make Guarantee Payments pursuant to the terms of this Guarantee notwithstanding
the occurrence of any event referred to in subsections (a) through (g) of
Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.
As long as any Securities remain outstanding, if an Event of Default
occurs under the Guarantee or a Trust Enforcement Event occurs under the
Declaration and written notice of such event has been given to the Guarantor,
then the Guarantor may not (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire, or make a liquidation payment with respect to any
of the Guarantor's capital stock or (ii) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor that rank on a parity with or junior in interest to the Debentures or
make any guarantee payments with respect to any guarantee by the Guarantor of
the debt securities of any subsidiary of the Guarantor if such guarantee ranks
on a parity with or junior in interest to the Debentures (other than (a)
purchases or acquisitions of capital stock of the Guarantor in connection with
the satisfaction by the Guarantor of its obligations under any employee benefit
plans or the satisfaction by the Guarantor of its obligations pursuant to any
contract or security outstanding on the date of such event requiring the
Guarantor to purchase capital stock of the Guarantor, (b) as a result of a
reclassification of the Guarantor's capital stock or the exchange or conversion
of one class or series of the Guarantor's or Industries' capital stock for
another class or series of the Guarantor's capital stock, (c) the purchase of
fractional interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) dividends or distributions in capital stock of the
Guarantor, (e) redemptions or repurchases of any rights pursuant to a rights
agreement and (f) payments under this Guarantee).
SECTION 6.2. Ranking.
If a Trust Enforcement Event has occurred and is continuing under the
Declaration, the rights of the Holders of the Common Securities to receive
Guarantee Payments will be subordinated to the rights of the Holders of
Preferred Securities to receive Guarantee Payments.
ARTICLE VII
<PAGE>
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TERMINATION
SECTION 7.1. Termination.
This Guarantee will terminate upon (i) the Guarantor's full payment of the
redemption price of all the Securities [in the event of a Tax Event Redemption
or at the maturity of the Debentures], (ii) distribution of the Debentures held
by the Issuer to the Holders of the Securities or (iii) payment in full of the
amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of the Securities must restore payment of any sums paid under the Securities or
under this 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 by such Indemnified Person in
good faith in accordance with this 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 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 the Holders of the 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 by such Indemnified Person in good faith in accordance with this
Guarantee Agreement 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
indemnified 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.
<PAGE>
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(b) To the fullest extent permitted by applicable law, reasonable
out-of-pocket expenses (including legal fees) incurred by an Indemnified 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 Indemnified 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).
(c) The provisions set forth in this Section 8.2 shall survive the
termination of the Guarantee or the resignation or removal of the Guarantee
Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Securities then
outstanding.
SECTION 9.2. Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Holders of the Securities in any material respect, in which case no
consent of Holders will be required, this Guarantee may be amended only with the
prior approval of the Holders of at least a Majority in Liquidation Amount of
the Securities. The provisions of Section 11.2 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 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 Guarantee Trustee, at the mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to the
Holders of the Securities):
The Chase Manhattan Bank [450 West 33rd Street New York, New York 10001]
Attention: Corporate Trust Administration, Telecopy No.: __________________
(b) If given to the Guarantor, at the mailing address set forth below (or
such other address as the Guarantor may give notice of to the Holders of the
Securities):
Utilicorp United, Inc. [___________________], Attention:
[_______________], Telecopy No.: [__________].
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(c) If given to any Holder of the Securities, at such Holder's address as
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 shall be solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable from
the Securities.
SECTION 9.5. Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.6. Governing Law.
This Guarantee may contain more than one counterpart of the signature
page, and this Guarantee may be executed by the affixing of the signature of
each of the parties to one of such counterpart signature pages. All such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
<PAGE>
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THIS GUARANTEE is executed as of the day and year first above written.
UTILICORP UNITED INC.,
as Guarantor
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Guarantee Trustee
By:_______________________________
Name:
Title:
<PAGE>
EXHIBIT 4(k)
AMENDED
AND
RESTATED
DECLARATION OF TRUST
<PAGE>
TABLE OF CONTENTS
ARTICLE 1: INTERPRETATION AND DEFINITIONS . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Interpretation and Definitions . . . . . . . . . . . . . . 1
ARTICLE 2: TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . 12
SECTION 2.2 Lists of Holders of the Securities . . . . . . . . . . . . 12
SECTION 2.3 Reports by the Property Trustee. . . . . . . . . . . . . . 13
SECTION 2.4 Periodic Reports to the Property Trustee . . . . . . . . . 13
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . 13
SECTION 2.6 Trust Enforcement Events; Waiver . . . . . . . . . . . . . 13
SECTION 2.7 Trust Enforcement Event; Notice. . . . . . . . . . . . . . 15
ARTICLE 3: ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.1 Name and organization. . . . . . . . . . . . . . . . . . . 15
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.3 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.5 Title to Property of the Trust . . . . . . . . . . . . . . 16
SECTION 3.6 Powers and Duties of the Regular Trustees . . . . . . . . . 16
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees. . . . 18
SECTION 3.8 Powers and Duties of the Property Trustee. . . . . . . . . 19
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee 21
SECTION 3.10 Certain Rights of Property Trustee. . . . . . . . . . . . 23
SECTION 3.11 Delaware Trustee. . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.12 Execution of Documents. . . . . . . . . . . . . . . . . . 25
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities. . 25
SECTION 3.14 Duration of Trust.. . . . . . . . . . . . . . . . . . . . 25
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.16 Property Trustee May File Proofs of Claim . . . . . . . . 27
ARTICLE 4: THE SPONSOR. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.1 Responsibilities of the Sponsor. . . . . . . . . . . . . . 28
i
<PAGE>
SECTION 4.2 Indemnification and Expenses of the Trustees . . . . . . . 28
ARTICLE 5: THE HOLDERS OF THE COMMON SECURITIES . . . . . . . . . . . . . . 29
SECTION 5.1 Debenture Issuer's Purchase of the Common Securities . . . 29
SECTION 5.2 Covenants of the Debenture Issuer. . . . . . . . . . . . . 29
ARTICLE 6: THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.1 Number of Trustees . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.2 Delaware Trustee; Eligibility. . . . . . . . . . . . . . . 30
SECTION 6.3 Property Trustee; Eligibility. . . . . . . . . . . . . . . 30
SECTION 6.4 Qualifications of the Regular Trustees Generally . . . . . 31
SECTION 6.5 Initial Regular Trustees . . . . . . . . . . . . . . . . . 31
SECTION 6.6 Appointment, Removal and Resignation of the Trustees . . . 31
SECTION 6.7 Vacancies among Trustees . . . . . . . . . . . . . . . . . 32
SECTION 6.8 Effect of Vacancies. . . . . . . . . . . . . . . . . . . . 33
SECTION 6.9 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.10 Delegation of Power by the Regular Trustees . . . . . . . 33
SECTION 6.11 Merger, Consolidation, Conversion or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 7: TERMS OF THE SECURITIES. . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.1 General Provisions Regarding the Securities. . . . . . . . 34
SECTION 7.2 Distributions. . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.3 Redemption of Securities . . . . . . . . . . . . . . . . . 38
SECTION 7.4 Redemption Procedures. . . . . . . . . . . . . . . . . . . 39
SECTION 7.5 Voting Rights of the Preferred Securities. . . . . . . . . 40
SECTION 7.6 Voting Rights of the Common Securities . . . . . . . . . . 42
SECTION 7.7 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.8 Listing. . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.9 Transfer of the Preferred Securities . . . . . . . . . . . 43
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates . . . . 44
SECTION 7.11 Deemed Holders. . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.12 Global Securities . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.13 Remarketing . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 8: DISSOLUTION AND TERMINATION OF THE TRUST. . . . . . . . . . . . . 50
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SECTION 8.1 Dissolution and Termination of the Trust . . . . . . . . . 50
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust . . 51
ARTICLE 9: LIMITATION OF LIABILITY OF HOLDERS OF THE SECURITIES,
THE DELAWARE TRUSTEE AND OTHERS . . . . . . . . . . . . . . . . 51
SECTION 9.1 Liability. . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.2 Exculpation. . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.3 Fiduciary Duty. . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.4 Indemnification. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.5 Outside Businesses . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 10: ACCOUNTING. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.2 Certain Accounting Matters. . . . . . . . . . . . . . . . 56
SECTION 10.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 11: AMENDMENTS AND MEETINGS . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.1 Amendments. . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.2 Meetings of the Holders of the Securities; Action by
Written Consent . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 12: REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 12.1 Representations and Warranties of the Property Trustee.. . 61
SECTION 12.2 Representations and Warranties of the Delaware Trustee. . 62
ARTICLE 13: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.3 Intention of the Parties. . . . . . . . . . . . . . . . . 63
SECTION 13.4 Headings. . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 13.5 Successors and Assigns. . . . . . . . . . . . . . . . . . 64
SECTION 13.6 Partial Enforceability. . . . . . . . . . . . . . . . . . 64
SECTION 13.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 64
iii
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
This Amended and Restated Declaration of Trust ("Declaration"), dated as of
September __, 1999, by and among UtiliCorp United Inc., a Delaware corporation,
as Sponsor, Dale J. Wolf, Ellen E. Fairchild, and Kenneth C. Jones, as the
initial Regular Trustees, The Chase Manhattan Bank, as the initial Property
Trustee, and Chase Manhattan Bank Delaware, as the initial Delaware Trustee, not
in their individual capacities but solely as Trustees, and the Holders, from
time to time, of the Securities representing undivided beneficial ownership
interests in the assets of the Trust to be issued pursuant to this Declaration.
WHEREAS, the Trustees and the Sponsor established UCU Capital Trust I (the
"Trust"), a business trust under the Business Trust Act, pursuant to a
Declaration of Trust dated as of August 30, 1999, (the "Original Declaration")
and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary
of State of the State of Delaware on August 30, 1999; and
WHEREAS, the sole purpose of the Trust shall be to sell and issue
certain securities representing undivided beneficial interests in the assets
of the Trust, to invest the proceeds from such sales in the Debentures issued
by the Debenture Issuer and to engage in only those activities necessary or
incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and restate each
and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE 1: INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. Unless the context otherwise
requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above shall have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration shall have the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" shall be to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections, Recitals and
Exhibits shall be to Articles and Sections of, or Recitals and Exhibits to, this
Declaration unless otherwise specified;
<PAGE>
(e) unless otherwise defined in this Declaration, a term defined in the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), shall have
the same meaning when used in this Declaration; and
(f) a reference to the singular shall include the plural and vice versa,
and a reference to any masculine form of a term shall include the feminine or
neuter form of a term, as applicable.
(g) the following terms shall have the following meanings:
"Affiliate" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person shall mean
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Applicable Margin" shall mean the spread determined as set forth
below, based on the prevailing rating of the senior notes of the Debenture
Issuer in effect at the close of business on the Business Day immediately
preceding the date of a Failed Remarketing:
<TABLE>
<CAPTION>
Prevailing Rating Spread
----------------- ------
<S> <C>
AA/ "Aa" . . . . . . . . 3.00%
A/ "a" . . . . . . . . . 4.00%
BBB/ "Baa" . . . . . . . 5.00%
Below BBB/ "Baa" . . . . 7.00%
</TABLE>
For purposes of this definition, the "prevailing rating" of the Remarketed
Securities shall be:
(i) AA/ "Aa" if the senior notes of the Debenture Issuer have a
credit rating of AA or better by S&P and "Aa3" or better by Moody's or the
equivalent of such ratings by such agencies or a comparable rating agency
or comparable rating agencies selected by the Remarketing Agents (after
consultation with the Company);
(ii) if not under clause (i) above, then A/"a" if the senior notes
of the the Debenture Issuer have a credit rating of A- or better by S&P and
"A3" or better by Moody's or the equivalent of such ratings by such
agencies or a comparable rating agency or comparable rating agencies
selected by the Remarketing Agents (after consultation with the Company);
(iii) if not under clauses (i) or (ii) above, then BBB/"Baa" if the
senior notes of the Debenture Issuer have a credit rating of BBB- or better
by S&P and "Baa" or better by Moody's or the equivalent of such ratings by
such agencies or a comparable rating agency or comparable rating agencies
selected by the Remarketing Agents (after consultation with the Company);
or
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<PAGE>
(iv) if not under clauses (i) through (iii) above, then Below
BBB/"Baa".
Notwithstanding the foregoing, (A) if (i) the credit rating of the senior notes
of the Company by S&P shall be on the "Credit Watch" of S&P with a designation
of "negative implications" or "developing," or (ii) the credit rating of the
senior notes of the Company by Moody's shall be on the "Corporate Credit Watch
List" of Moody's with a designation of "downgrade" or "uncertain," or, in each
case, on any successor list of S&P or Moody's with a comparable designation, the
prevailing ratings of the senior notes of the Company shall be deemed to be
within a range one full level lower in the above table than those actually
assigned to the senior notes of the Company by Moody's and S&P and (B) if the
senior notes of the Company are rated by only one rating agency on or before the
Remarketing Date, the prevailing rating shall at all times be determined without
reference to the rating of any other rating agency; provided that if no such
rating agency shall have in effect a rating for the senior notes of the Company,
and the Remarketing Agent is unable to identify a comparable rating agency or
rating agencies, as required above, the prevailing rating shall be Below BBB/
"baa."
"Applicable Ownership Interest" shall mean, with respect to a PEPS
Units and the U.S. treasury securities in the Treasury Portfolio, (A) a 1/40, or
2.5%, undivided beneficial ownership interest in a $1,000 face amount of a
principal or interest strip in a U.S. treasury security included in such
Treasury Portfolio that matures on or prior to _____________, ____ and (B) for
each scheduled interest payment date on the Debentures after the Tax Event
Redemption Date, a 1/40, or 2.5%, undivided beneficial ownership interest in a
$1,000 face amount of such U.S. treasury security that is a principal or
interest strip maturing on such date.
"Applicable Principal Amount" shall mean either (A) if the Tax Event
Redemption Date occurs prior to the Purchase Contract Settlement Date, the
aggregate principal amount of the Debentures corresponding to the aggregate
stated liquidation amount of the Preferred Securities that are components of the
PEPS Units on the Tax Event Redemption Date or (B) if the Tax Event Redemption
Date occurs on or after the Purchase Contract Settlement Date, the aggregate
principal amount of the Debentures corresponding to the aggregate stated
liquidation amount of the Preferred Securities outstanding on such Tax Event
Redemption Date.
"Authorized Officer" of a Person shall mean any Person that is
authorized to bind such Person.
"Beneficial Owner" shall mean, with respect to a Global Security, a
Person who is the beneficial owner of such book-entry interest as reflected on
the books of the Depositary or on the books of a Person maintaining an account
with such Depositary (directly as a Depositary Participant or as an indirect
participant, in each case in accordance with the rules of such Depositary).
"Business Day" shall mean any day other than a Saturday or Sunday or a
day on which banking institutions in New York City are authorized or required by
law or executive order to remain closed or a day on which the principal office
of the Indenture Trustee or the Property Trustee is closed for business.
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<PAGE>
"Business Trust Act" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Cash Settlement" shall have the meaning specified in the Purchase
Contract Agreement.
"Certificate" shall mean a Common Security Certificate or a Preferred
Security Certificate.
"Closing Date" shall mean the date on which the Preferred Securities
are issued and sold.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific section
of the Code refers not only to-such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Collateral Agent" shall mean The First National Bank of Chicago.
"Commission" shall mean the Securities and Exchange Commission.
"Common Security" shall have the meaning specified in Section
7.1(a)(ii).
"Common Security Certificate" shall mean a definitive certificate in
fully registered form representing a Common Security, substantially in the form
of Exhibit B hereto.
"Company" shall mean UtiliCorp United Inc., a Delaware corporation,
the Sponsor Debenture Issuer, and the parent of the Trust.
"Corporate Trust Office" shall mean the principal office of the
Property Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the date hereof is located at 450 West
33rd Street, 15th Floor, New York, New York 10001.
"Covered Person" shall mean (A) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (B) any Holder.
"Debentures" shall mean the series of subordinated debentures to be
issued by the Debenture Issuer under the Indenture and to be purchased by the
Trust and held by the Property Trustee.
"Debenture Issuer" shall mean UtiliCorp United Inc., a Delaware
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" shall mean (A) any Regular
Trustee, (B) any Affiliate of any Regular Trustee, (C) any officers, directors,
shareholders, members,
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<PAGE>
partners, employees, representatives or agents of any Regular Trustee or any
Affiliate thereof or (D) any officer, employee or agent of the Trust or its
Affiliates.
"Depositary" shall mean, with respect to Securities issuable in whole
or in part in-the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as depositary for
such Securities, and initially shall be The Depository Trust Company.
"Depositary Participant" shall mean a member of, or participant in,
the Depositary.
"Direct Action" shall have the meaning specified in Section 3.8(e).
"Distribution" shall mean a distribution payable to the Holders in
accordance with Section 7.2.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Failed Remarketing" shall have the meaning specified in Section
7.13(h).
"Fiduciary Indemnified Person" shall have the meaning set forth in
Section 9.4(b).
"Fiscal Year" shall have the meaning specified in Section 10.1.
"Global Security" shall mean a global Preferred Security Certificate
registered in the name of a Depositary or its nominee.
"Guarantee" shall mean the Guarantee Agreement, dated as of September
_____, 1999, of the Sponsor in respect of the Preferred Securities.
"Holder" shall mean any holder of Preferred Securities or Common
Securities, as registered on the books and records of the Trust, such holder
being a beneficial owner within the meaning of the Business Trust Act, provided
that in determining whether the Holders of the requisite liquidation amount of
Preferred Securities have voted on any matter provided for in this Declaration,
then for the purpose of such determination only (and not for any other purpose
hereunder), if the Preferred Securities remain in the form of one or more Global
Securities and if the Depositary that is the holder of such Global Securities
has sent an omnibus proxy to the Depositary Participants to whose accounts the
Preferred Securities are credited on the record date, the term "Holders" shall
mean such Depositary Participants acting at the direction of the Beneficial
Owners.
"Indemnified Person" shall mean a Debenture Issuer Indemnified Person
or a Fiduciary Indemnified Person.
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<PAGE>
"Indenture" shall mean the Subordinated Indenture, dated as of
September _____, 1999, between the Debenture Issuer and the Indenture Trustee
(including the provisions of the Trust Indenture Act that are deemed
incorporated therein), pursuant to which the Debentures are to be issued
"Indenture Event of Default" shall have the meaning given to the term
"Event of Default" in the Indenture.
"Indenture Trustee" shall mean The Chase Manhattan Bank, in its
capacity as trustee under the Indenture, until a successor is appointed
thereunder, and thereafter shall mean such successor trustee.
"Investment Company" shall mean an investment company as defined in
the Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" shall have the meaning specified in Section 3.6(f).
"List of Holders" shall have the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" shall mean, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holders of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding Securities
or Preferred Securities, as the case may be.
"Moody's" shall mean Moody's Investors Service, Inc.
"New York Stock Exchange" shall mean the New York Stock Exchange, Inc
or any successor thereto.
"Officers' Certificate" shall mean, when delivered by the Trust, a
certificate signed by a majority of the Regular Trustees of the Trust and, when
delivered by the Sponsor, a certificate signed by (A) the Chairman of the Board,
President or a Vice President of the Sponsor and (B) the Treasurer, Assistant
Treasurer or Secretary of the Sponsor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration shall include, where applicable:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(ii) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
6
<PAGE>
(iii) 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
(iv) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Over-allotment Option" shall mean any over-allotment option contained
in an underwriting agreement pursuant to which the PEPS Units are sold.
"Paying Agent" shall have the meaning specified in Section 3.8(h).
"Payment Amount" shall have the meaning specified in Section 7.2(c).
"PEPS Units" shall mean a security consisting of a unit comprised
of (A) a purchase contract under which (i) the holder of the unit will
purchase from the Company, for $25.00 in cash, a certain number of shares of
common stock, par value $1.00 per share, of the Company and (ii) the
Debenture Issuer will pay such holder contract adjustment payments and (B)
beneficial ownership of a Preferred Security or Debenture, or in certain
circumstances following the occurrence of a Tax Event, the appropriate
Applicable Ownership Interest of the Treasury Portfolio.
"Person" shall mean 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.
"Pledge Agreement" shall mean the Pledge Agreement dated as of
September _____, 1999 among the Company, the Collateral Agent, The First
National Bank of Chicago, as Securities Intermediary, and the Purchase Contract
Agent.
"Preferred Security" shall have the meaning specified in Section
7.1(a)(i).
"Preferred Security Certificate" shall mean a definitive certificate
in fully registered form representing a Preferred Security, substantially in the
form of Exhibit A.
"Primary Treasury Dealer" shall mean a primary U.S. government
securities dealer in New York City.
"Property Account" shall have the meaning specified in Section 3.8(c)
"Property Trustee" shall mean the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" shall mean pro rata to each Holder according to the
aggregate liquidation amount of the Securities held by such Holder in relation
to the aggregate liquidation amount of all Securities outstanding.
"Purchase Contract Agent" shall mean The Chase Manhattan Bank.
7
<PAGE>
"Purchase Contract Agreement" shall mean the Purchase Contract
Agreement dated as of September __, 1999 between the Company and The Chase
Manhattan Bank, as Purchase Contract Agent.
"Purchase Contract Settlement Date" shall mean_____________, ____.
"Quorum" shall mean a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Quotation Agent" shall mean (A)_______________and any respective
successor, provided that if_______________or any respective successor ceases to
be a Primary Treasury Dealer, the Sponsor shall substitute another Primary
Treasury Dealer therefor or (B) any other Primary Treasury Dealer selected by
the Sponsor.
"Redemption Amount" shall mean, for each Debenture, the product of the
principal amount of such Debenture and a fraction, the numerator of which shall
be the Treasury Portfolio Purchase Price and the denominator of which shall be
the Applicable Principal Amount.
"Redemption/Distribution Notice" shall have the meaning specified in
Section 7.4(a).
"Redemption Price" shall mean the amount for which the Securities will
be redeemed, which amount will equal the lesser of (i) the redemption price paid
by the Debenture Issuer to repay or redeem, in whole or in part, the Debentures
held by the Trust plus an amount equal to accumulated and unpaid Distributions
on such Securities through the date of their redemption or (ii) the amount
received by the Trust in respect of the Debentures so repaid or redeemed.
"Regular Trustee" shall mean any trustee of the Trust other than
the Property Trustee and the Delaware Trustee.
"Remarketing" shall mean the operation of the procedures for
remarketing specified in Section 7.13.
"Remarketed Securities" shall mean (i) so long as the Trust has not
been dissolved, the Preferred Securities or (ii) if the Trust has been
dissolved, the Debentures.
"Remarketing Agents" shall mean_____________________or if any of
the Remarketing Agents are removed, any successor remarketing agent selected
by the Sponsor.
"Remarketing Agreement" shall mean the Remarketing Agreement dated as
of________________, 1999 among the Company, the Trust and the Remarketing
Agents.
"Remarketing Date" shall mean the third Business Day preceding August
__, ____.
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<PAGE>
"Remarketing Settlement Date" shall mean the date, if any, on which
the settlement of the Remarketed Securities has occurred through the normal
settlement procedures in effect at such time of the Depositary or any successor
Depositary.
"Reset Rate" shall mean the distribution rate per annum, as determined
by the Remarketing Agents, that results from the Remarketing pursuant to Section
7.13.
"Responsible Officer" shall mean, with respect to the Property
Trustee, any officer with direct responsibility for the administration of this
Declaration and also shall mean, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred due to that officer's
knowledge of and familiarity with the particular subject.
"Rule 3a-5" shall mean Rule 3a-5 under the Investment Company Act or
any successor rule thereunder.
"S&P" shall mean Standard & Poor's Corporation.
"Scheduled Remarketing Settlement Date" shall mean the date, if any,
on which the settlement of the Remarketed Securities is scheduled to occur.
"Securities" shall mean the Common Securities and the Preferred
Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"66 2/3% in Liquidation Amount" shall mean Holders of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities voting separately as a class, who
are the record owners of 66 2/3% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities or Preferred
Securities, as the case may be.
"Sponsor" shall mean UtiliCorp United Inc., a Delaware corporation, or
any successor entity in a merger, consolidation, conversion, amalgamation or
replacement by or conveyance, transfer or lease of its properties substantially
as an entirety, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" shall have the meaning specified in
Section 6.6(b).
"Successor Entity" shall have the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" shall have the meaning specified in
Section 6.6(b).
"Successor Security" shall have the meaning specified in Section
3.15(b)(i)(B).
"Supermajority" shall have the meaning specified in Section
2.6(a)(ii).
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<PAGE>
"Tax Event" shall mean the receipt by the Sponsor and the Trust of an
opinion of counsel, rendered by Blackwell Sanders Peper Martin LLP or another
law firm having a recognized national tax practice, to the effect that, as a
result of any amendment to, change in or announced proposed change in the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative decision, pronouncement, judicial decision or action
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, action or decision is
announced on or after the Closing Date, there is more than an insubstantial
increase in the risk that (i) the Trust is, or within 90 days of the date of
such opinion will be, subject to United States federal income tax with respect
to income received or accrued on the Debentures, (ii) interest payable by the
Debenture Issuer on the Debentures is not, or within 90 days of the date of such
opinion will not be, deductible by the Debenture Issuer, in whole or in part,
for United States federal income tax purposes, or (iii) the Trust is, or within
90 days of the date of such opinion will be, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Tax Event Redemption" shall mean that a Tax Event has occurred and is
continuing and the Debentures have been called for redemption pursuant to the
Indenture.
"Tax Event Redemption Date" shall mean the date of the Tax Event
Redemption specified by the Debenture Issuer.
"10% in Liquidation Amount" shall mean, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"Termination Event" shall have the meaning set forth in Section 1.1 of
the Purchase Contract Agreement.
"Treasury PEPS Units" shall mean a PEPS Units with respect to which
Treasury Securities have been substituted for the Preferred Securities or
Applicable Ownership Interest of the Treasury Portfolio component, as
applicable.
"Treasury Portfolio" shall mean, with respect to the Applicable
Principal Amount of Debentures, (A) if the Tax Event Redemption Date occurs
prior to the Purchase Contract Settlement Date, a portfolio of zero-coupon U.S.
treasury securities consisting of (i) principal or interest strips of U.S.
treasury securities that mature on or prior to the Purchase Contract Settlement
Date in an aggregate amount at maturity equal to the Applicable Principal Amount
and (ii) with respect to each scheduled interest payment date on the Debentures
that occurs after the Tax Event Redemption Date, principal or interest strips of
U.S. treasury securities that mature on or prior to such date in an aggregate
amount at maturity equal to the aggregate interest payment that would have been
due on the Applicable Principal Amount of the Debentures on
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<PAGE>
such date and (B) if the Tax Event Redemption Date occurs on or after the
Purchase Contract Settlement Date, a portfolio of zero-coupon U.S. treasury
securities consisting of (i) principal or interest strips of U.S. treasury
securities that mature on or prior to November 16, 2004 in an aggregate
amount at maturity equal to the Applicable Principal Amount and (ii) with
respect to each scheduled interest payment date on the Debentures that occurs
after the Tax Event Redemption Date, principal or interest strips of such
U.S. treasury securities that mature on or prior to such date in an aggregate
amount at maturity equal to the aggregate interest payment that would have
been due on the Applicable Principal Amount of the Debentures on such date.
"Treasury Regulations" shall mean the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Department of the Treasury, as such regulations may be amended
from time to time (including corresponding provisions of succeeding
regulations).
"Treasury Securities" shall mean zero-coupon U.S. Treasury Securities
(CUSIP Number_________) that are the principal strip of the___% U.S. Treasury
Securities that mature on ________________, ____.
"Trust" shall have the meaning specified in the Recitals hereto.
"Trust Enforcement Event" in respect of the Securities shall mean that
an Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trustee" or "Trustees" shall mean each Person that has signed this
Declaration as a trustee, so long as such Person continues in office in
accordance with the terms hereof, and all other Persons that from time to time
may be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Two-Year Benchmark Treasury Rate" shall mean the bid side rate
displayed at 10:00 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date for direct
obligations of the United States (which may be obligations traded on a
when-issued basis only) having a maturity comparable to the remaining term to
maturity of the Remarketed Securities, as agreed upon by the Company and the
Lead Remarketing Agents in the Telerate system (or if the Telerate system is
(a) no longer available on the third Business Day immediately preceding the
Purchase Contract Settlement Date or (b) in the opinion of the Lead
Remarketing Agents (after consultation with the Company) no longer an
appropriate system from which to obtain such rate, such other nationally
recognized quotation system as, in the opinion of the Lead Remarketing Agents
(after consultation with the Company) is appropriate. If such rate is not so
displayed, the rate for the Two-Year Benchmark Treasury Rate shall be, as
calculated by the Lead Remarketing Agent, the yield to maturity for the
Preferred Securities, expressed as a bond equivalent on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis, and computed
by taking the arithmetic mean of the secondary market bid rates, as of 10:30
A.M., New York City time, on the third Business Day
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immediately preceding the Purchase Contract Settlement Date of three leading
United States government securities dealers selected by the Lead Remarketing
Agent (after consultation with the Company) (which may include the Lead
Remarketing Agent or an affiliate thereof).
ARTICLE 2: TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and, to the extent
applicable, shall be governed by such provisions.
(b) The Property Trustee shall be the only Trustee that is a trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties of the Trust Indenture Act shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United
States federal income tax purposes and shall not affect the nature of the
Securities as equity securities representing undivided beneficial interests
in the assets of the Trust.
SECTION 2.2 Lists of Holders of the Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee a list of the names and addresses of the
Holders of the Securities in such form as the Property Trustee may reasonably
require ("List of Holders") (i) as of the record date relating to the payment of
any Distribution, at least one Business Day prior to the date for payment of
such Distribution, except while the Preferred Securities are represented by one
or more Global Securities, and (ii) at any other time, within 30 days of receipt
by the Trust of a written request from the Property Trustee for a List of
Holders as of a date no more than 15 days before such List of Holders is
provided to the Property Trustee. If at any time the List of Holders does not
differ from the most recent List of Holders provided to the Property Trustee by
the Sponsor and the Regular Trustees on behalf of the Trust, then neither the
Sponsor nor the Regular Trustees shall be obligated to deliver such List of
Holders. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders provided
to it or that it receives in its capacity as Paying Agent (if acting in such
capacity); provided that the Property Trustee may destroy any List of Holders
previously provided to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
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SECTION 2.3 Reports by the Property Trustee.
Within 60 days after _____________ of each year (commencing with the
year of the first anniversary of the issuance of the Preferred Securities), the
Property 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 Property Trustee also shall comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property 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.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration 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 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Preferred Securities, any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, then the Trust
Enforcement Event under this Declaration also shall not be waivable; and
(ii) requires the vote or consent of the holders of greater than a
majority in principal amount of the Debentures (a "Supermajority") to be
waived under the Indenture, the related Trust Enforcement Event under this
Declaration only may be waived by the vote or written consent of the
Holders of at least the same Supermajority in aggregate stated liquidation
amount of the Preferred Securities outstanding.
The foregoing provisions of this Section 2.6 shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act, and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
Trust Enforcement Event in respect of the Preferred Securities shall be deemed
to have been cured for every purpose of this Declaration and the Preferred
Securities, but no such waiver shall extend to any subsequent or other Trust
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Enforcement Event with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of a
Trust Enforcement Event with respect to the Preferred Securities also shall be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Trust Enforcement Event with respect to the Common Securities for all
purposes of this Declaration without any further act, vote or consent of the
Holders of the Common Securities.
(b) The Holders of the Common Securities may waive, by vote or written
consent, any past Trust Enforcement Event in respect of the Common Securities
and its consequences, provided that if the underlying Indenture Event of
Default is not waivable under the Indenture, then, except where the Holders
of the Common Securities have been deemed to have waived such Trust
Enforcement as provided below in this Section 2.6(b), the related Trust
Enforcement Event under this Declaration also shall not be waivable. The
Holders of the Common Securities shall be deemed to have waived any and all
Trust Enforcement Events in respect of the Common Securities and the
consequences thereof until all Trust Enforcement Events in respect of the
Preferred Securities have been cured, waived or otherwise eliminated. Until
all Trust Enforcement Events in respect of the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee shall be
deemed to be acting solely on behalf of the Holders of the Preferred
Securities, and only the Holders of the Preferred Securities shall have the
right to direct the Property Trustee. The foregoing provisions of this
Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act, and Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Subject to the
foregoing provisions of this Section 2.6(b), upon such cure, waiver or other
elimination, any Trust Enforcement Event in respect of the Common Securities
shall be deemed to have been cured for every purpose of this Declaration and
the Common Securities, but no such waiver shall extend to any subsequent or
other Trust Enforcement Event with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Indenture Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities
shall constitute a waiver of the corresponding Trust Enforcement Event under
this Declaration. Any such waiver by the Holders of the Preferred Securities
also shall be deemed to constitute a waiver by the Holders of the Common
Securities of any such Trust Enforcement Event with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities. The foregoing provisions of
this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act, and Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) Within 90 days after the occurrence of a Trust Enforcement Event
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit by mail, first class postage prepaid, to the Holders of
the Securities, notice of such Trust Enforcement Event, unless such Trust
Enforcement Event has been cured before the giving of such notice; provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of
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the Debentures, the Property Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Property Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
Trust Enforcement Event except for:
(i) a default under Sections 501(l) and 501(2) of the Indenture;
or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of this Declaration shall have
actual knowledge.
ARTICLE 3: ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "UCU Capital Trust I," as such
name may be modified from time to time by the Regular Trustees following written
notice to the Holders of the Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is in care of
UtiliCorp United Inc., 20 West Ninth Street, Kansas City, Missouri 64105. On
ten Business Days' written notice to the Holders of the Securities, the Regular
Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell the Securities, (b) to use the gross proceeds from such sale to
acquire the Debentures and (c) except as otherwise limited herein, to engage
in only those other activities necessary or incidental thereto. The Trust
shall not borrow money, issue debt, reinvest proceeds derived from
investments, pledge any of its assets or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified as a
grantor trust for United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor,
the Holders of the Preferred Securities or the Common Securities or the
Beneficial Owners of the Preferred Securities will take any position that is
contrary to the classification of the Trust as a grantor trust for United
State federal income tax purposes.
SECTION 3.4 Authority.
(a) Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. Any action taken by
the Regular Trustees in accordance with their powers
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shall constitute the act of and shall serve to bind the Trust, and any action
taken by the Property Trustee in accordance with its powers shall constitute
the act of and shall serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into
the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by or with the consent of any one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee may delegate to any other natural person over the age of 21, by power of
attorney consistent with applicable law, his or her power for the purposes of
signing any documents that the Regular Trustees have power and authority to
cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Account or as otherwise provided in this Declaration, legal title
to all assets of the Trust shall be vested in the Trust. The Holders of the
Securities shall not have legal title to any part of the assets of the Trust but
shall have undivided beneficial ownership interests in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Securities in the manner
specified in Section 7.1 and to issue and sell the Securities in accordance
with this Declaration; provided that the Trust may issue no more than one
series of Preferred Securities and no more than one series of Common
Securities; and provided further that there shall be no interests in the
Trust other than the Securities, and the issuance of the Securities shall be
limited to a one-time, simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date, subject to the issuance of additional
Securities pursuant to the exercise of any Over-allotment Option;
(b) to acquire the Debentures with the proceeds of the sale of the
Securities; provided that the Regular Trustees shall cause legal title to the
Debentures to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Securities;
(c) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Tax Event; provided that the Regular Trustees shall consult
with the Sponsor and the Property Trustee before taking or refraining from
taking any action in relation to any such Tax Event;
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(d) to establish a record date with respect to all actions to be taken
hereunder that require a record date to be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of the Securities as to such actions and
applicable record dates;
(e) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(f) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(g) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services;
(h) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(i) to give to the Property Trustee the certificate required by Section
314(a)(4) of the Trust Indenture Act, which certificate may be executed by
any Regular Trustee;
(j) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(k) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(l) to take all action that may be necessary or appropriate for the
preservation and continuation of the Trust's valid existence, rights,
franchise and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities
or to enable the Trust to effect the purposes for which it was created;
(m) to take any action not inconsistent with applicable law that the
Regular Trustees determine in their discretion to be necessary or desirable
in carrying out the purposes and functions of the Trust as set forth in
Section 3 or the activities of the Trust as set forth in this Section 3.6,
including:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
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(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes;
(n) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed;
(o) to prepare, execute and file a Certificate of Cancellation of the
Certificate of Trust of the Trust pursuant to Section 8.1(b); and
(p) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the
Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall cause the Trust
not to:
(i) invest any proceeds received by the Trust in connection with
its ownership of the Debentures, but shall distribute all such proceeds to
the Holders of the Securities pursuant to the terms of this Declaration and
of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess property for any purpose other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary
the Trust's assets;
(vi) possess any power or otherwise act in such a way as to vary
the terms of the Securities in any way whatsoever (except to the extent
expressly authorized in this Declaration or by the terms of the
Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
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(viii) other than as provided in this Declaration or by the terms of
the Securities, (A) direct the time, method and place of exercising any
trust or power conferred upon the Indenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under the
Indenture, (C) exercise a right to rescind or annul any declaration that
the principal of all the Debentures shall be due and payable or (D) consent
to any amendment, modification or termination of the Indenture or the
Debentures where such consent is required, unless the Trust has received an
opinion of counsel to the effect that such modification will not cause more
than an insubstantial increase in the risk that the Trust will not be
classified as a grantor trust for United States federal income tax
purposes;
(ix) take any action inconsistent with the status of the Trust as
grantor trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by vote of
the Holders of the Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Trust and the Holders of the Securities. The right, title and interest of
the Property Trustee to the Debentures shall vest automatically in each
Person that hereafter may be appointed as Property Trustee in accordance with
Section 6.6. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Debentures have been
executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees nor to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the Holders of the Securities
and, upon the receipt of payments of funds made in respect of the
Debentures, deposit such funds into the Property Account and make payments
to the Holders of the Securities from the Property Account in accordance
with Section 7.2. Funds in the Property Account shall be held uninvested
until disbursed in accordance with this Declaration. The Property Account
shall be an account that is maintained with a banking institution, the
rating on whose long-term unsecured indebtedness is at least equal to the
rating assigned to the Company's senior notes by a "nationally recognized
statistical rating organization" within the meaning of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Securities to the extent the
Debentures are redeemed or mature; and
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(iii) upon written direction by the Sponsor to dissolve the Trust,
to engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to the Holders of
the Securities in exchange for the Securities.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms
of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action that arises out of
or in connection with (i) a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or (ii) the Property
Trustee's duties and obligations under this Declaration or the Trust
Indenture Act; provided that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on
the redemption date), then a Holder of Preferred Securities may institute a
proceeding directly against the Debenture Issuer to enforce payment to such
Holder of the principal or interest on Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder (a "Direct Action").
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation have been distributed to the Holders of the Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debentures under the
Indenture and, if a Trust Enforcement Event actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property
Trustee shall enforce, for the benefit of Holders of the Securities, its
rights as holder of the Debentures subject to the rights of the Holders of
the Securities pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities, and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Property Trustee at any time, and a
successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the
Trust set out in Section 3.3, and the
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Property Trustee shall have no power to, and shall not, take any action that
is inconsistent with the purposes and functions of the Trust set out in
Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the cure or waiver of all Trust Enforcement
Events that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Declaration, and no implied covenants
shall be read into this Declaration against the Property Trustee. If a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Property Trustee has
actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Declaration and shall use the same degree of care
and skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property 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 a Trust Enforcement Event and after
the cure or waiver of all such Trust Enforcement Events that may have
occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of
this Declaration, and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the
Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property 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 Property Trustee and
conforming to the requirements of this Declaration; but
in the case of any such certificates or opinions that
by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine such certificates or
opinions to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it has been proven that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it without negligence, in good faith
in accordance with the direction of the Holders of not less than a Majority
in Liquidation Amount of the
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Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the Property
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 it has reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe-keeping and physical preservation of the Debentures and the Property
Account shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it otherwise may agree with the Sponsor.
Money held by the Property Trustee need not be segregated from other funds
held by it except in relation to the Property Account maintained by the
Property Trustee pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Property Trustee be liable for
any default or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) The Property 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 Sponsor contemplated by this
Declaration shall be sufficiently evidenced by an Officers' Certificate.
(iii) Whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or
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omitting any action hereunder, the Property Trustee (unless other evidence
is herein specifically prescribed) may request, in the absence of bad faith
on its part, and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Sponsor.
(iv) The Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof.
(v) The Property Trustee may consult with counsel of its choice or
other experts, and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area
of expertise 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 Sponsor or any of its Affiliates and may include any of its
employees. The Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration from any
court of competent jurisdiction.
(vi) The Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request
or direction of any Holder of Securities, unless such Holder of Securities
has provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Property
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 Property Trustee; provided
that nothing contained in this Section 3.10(A) shall be taken to relieve
the Property Trustee, upon the occurrence of an Indenture Event of Default,
of its obligation to exercise the rights and powers vested in it by this
Declaration.
(vii) The Property 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 Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it sees fit.
(viii) The Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys, and the Property 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 Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient
and effective to perform any such action, and no third party shall be
required to inquire as to the authority of the Property Trustee to so act
or as
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to its compliance with any of the terms and provisions of this Declaration,
both of which shall be evidenced conclusively by the Property Trustee's or
its agent's taking such action.
(x) Whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (A) may request instructions from the
Holders of the Securities, which instructions only may be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Property Trustee under this Declaration
in respect of such remedy, right or action, (B) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received and (C) shall be protected in conclusively
relying on or acting in accordance with such instructions.
(xi) Except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration.
(xii) The Property Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it without negligence, in good faith and
reasonably believed by it to be authorized or within the discretion, rights
or powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty
or obligation on the Property 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 Property 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 Property Trustee shall be
construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers
of, nor shall the Delaware Trustee have any of the duties and responsibilities
of, the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act. If the Property Trustee, meeting the requirements of
Section 6.2, also acts as Delaware Trustee, this Section 3.11 shall not apply.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or
applicable law, any Regular Trustee is authorized to execute on behalf of the
Trust any documents that the Regular Trustees have the power and authority to
execute pursuant to Section 3.6.
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SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until dissolved pursuant to the provisions of
Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate with, convert into, amalgamate or
merge with or into, be replaced by or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or other body, except
as described in Section 3.15(b) and (c) or Section 8.2.
(b) At the request of the Sponsor and with the consent of the Regular
Trustees or, if there are more than two, a majority of the Regular Trustees and
without the consent of the Holders of the Preferred Securities, the Delaware
Trustee or the Property Trustee, the Trust may consolidate with, convert into,
amalgamate or merge with or into, be replaced by or convey, transfer or lease
its properties substantially as an entirety to a trust organized as such under
the laws of any state; provided that:
(i) if the Trust is not the successor entity, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
with respect to the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the
"Successor Securities"), so long as such Successor
Securities rank the same as the Securities with respect
to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Debenture Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and duties as the Property
Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are or,
upon notification of issuance will be, listed on any national securities
exchange or with any other or organization on which the Preferred
Securities are then listed or quoted;
(iv) such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any
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Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease, the Sponsor has received an
opinion of independent counsel to the Trust experienced in such matters to
the effect that:
(A) such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any
Successor Securities) in any material respect;
(B) following such consolidation, conversion, amalgamation,
merger, replacement, conveyance, transfer or lease,
neither the Trust nor such Successor Entity will be
required to register as an Investment Company under the
Investment Company Act; and
(C) following such consolidation, conversion, amalgamation
or merger, replacement, conveyance, transfer or lease,
the Trust (or such Successor Entity) will continue to
be classified as a grantor trust for United States
federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all of
the Common Securities and guarantees the obligations of such Successor
Entity under the Successor Securities, at least to the extent provided by
the Guarantee; and
(ix) such Successor Entity expressly assumes all of the obligations
of the Trust.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate with, convert into, amalgamate or merge with or into, be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to, any other entity or permit any other entity to consolidate
with, convert into, amalgamate, merge with or into, or replace it, if such
consolidation, conversion, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or any successor Entity to be classified
as other than a grantor trust for United States federal income tax purposes or
would cause each Holder of Securities not to be treated as owning an undivided
beneficial ownership interest in the Debentures.
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SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities are then due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee has
made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount securities, such portion of the liquidation amount as
may be specified in the terms of such securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders of the Securities allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Property Trustee and, in
the event the Property Trustee consents to the making of such payments directly
to the Holders, to pay to the Property Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt, on behalf of any Holder of
Securities, any plan of reorganization, arrangement, adjustment or compensation
affecting the Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder of Securities in
any such proceeding.
ARTICLE 4: THE SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the sale and issuance of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare, execute and file with the Commission, on behalf of the
Trust, a registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments or supplements thereto, and to take any
other action relating to the registration and sale of the Preferred Securities
under federal and state securities laws;
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(b) if necessary, to determine the states in which to take appropriate
action to qualify or register for sale all or part of the PEPS Units and to do
any and all such acts, other than actions that must be taken by the Trust, and
advise the Trust of actions it must take; to prepare, execute and file, on
behalf of the Trust, any documents it deems necessary or advisable in order to
comply with the applicable laws of any such states; and to prepare, execute and
file, on behalf of the Trust, any such documents or take any acts determined by
it to be necessary in order to qualify or register all or part of the PEPS Units
in any state in which it has determined to qualify or register such PEPS Units
for sale;
(c) if necessary, to prepare, execute and file on behalf of the Trust,
an application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Preferred Securities;
(d) if necessary, to prepare, execute and file with the Commission, on
behalf of the Trust, a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the Exchange
Act, including any amendments thereto; and
(e) to negotiate the terms of, and execute and enter into, an
underwriting agreement providing for the sale of the PEPS Units and a
remarketing agreement providing for the Remarketing.
SECTION 4.2 Indemnification and Expenses of the Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees to
indemnify the Property Trustee and the Delaware Trustee for, and to hold each of
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Property Trustee or the Delaware
Trustee, as the case may be, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers or
duties hereunder. The provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee and the
termination of this Declaration.
ARTICLE 5: THE HOLDERS OF THE COMMON SECURITIES
SECTION 5.1 Debenture Issuer's Purchase of the Common Securities.
On the Closing Date, the Debenture Issuer shall purchase all of
the Common Securities issued by the Trust, in an aggregate liquidation amount
equal to at least three percent of the total capital of the Trust, at such
time as the Preferred Securities are sold and issued. If any additional
Preferred Securities are issued pursuant to the exercise of any
Over-allotment Option, then the Debenture Issuer shall purchase, on the date
of such issuance, an amount of additional Common Securities such that the
aggregate number of Common Securities held by the Debenture Issuer, upon such
purchase, will equal at least three percent of the total capital of the Trust.
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The aggregate stated liquidation amount of the Common Securities
outstanding at any time shall not be less than three percent of the total
capital of the Trust.
SECTION 5.2 Covenants of the Debenture Issuer.
For so long as the Preferred Securities remain outstanding, the
Debenture Issuer shall covenant (i) to maintain, directly or indirectly, 100%
ownership of the Common Securities, (ii) to cause the Trust to remain a
statutory business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Declaration, (iii) to use its
commercially reasonable efforts to ensure that the Trust will not be an
Investment Company required to be registered under the Investment Company Act
and (iv) not to take any action that would be reasonably likely to cause the
Trust to be classified as an association or a publicly traded partnership
taxable as a corporation for United States federal income tax purposes.
ARTICLE 6: THE TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor may
increase or decrease the number of Trustees by written instrument; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of the Common Securities at a
meeting of the Holders of the Common Securities or by written consent in lieu of
such meeting; provided that the number of Trustees shall be at least three; and
provided further that: (i) the Delaware Trustee, in the case of a natural
person, shall be a person who is a resident of the State of Delaware or that, if
not a natural person, is an entity that has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law;
(ii) at least one Regular Trustee is an employee or officer of, or is affiliate
with, the Sponsor; and (iii) one Trustee shall be the Property Trustee for so
long as this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Property Trustee also may serve as Delaware Trustee if
it meets the applicable requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity that has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, provided that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee also shall be the Delaware Trustee and
Section 3.11 shall have no application.
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SECTION 6.3 Property Trustee; Eligibility.
(a) There shall be at all times one Trustee (which may be the Delaware
Trustee) that shall act as Property Trustee that shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the law of
the United States of America or any state or territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
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 fifty 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 purpose of this Section 6.3(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 published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee immediately shall resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holders of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall comply
in all respects with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of the Regular Trustees Generally.
Each Regular Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be Dale J. Wolf, Ellen E.
Fairchild, and Kenneth C. Jones, the business address of all of whom is in care
of UtiliCorp United Inc., 20 West Ninth Street, Kansas City, Missouri 64105.
SECTION 6.6 Appointment, Removal and Resignation of the Trustees.
(a) Subject to Section 6.6(b), the Trustees may be appointed or removed
without cause at any time:
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(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by a vote of the Holders
of the Common Securities at a meeting of the Holders of the Common
Securities or by written consent in lieu of such meeting.
(b) The Property Trustee shall not be removed in accordance with
Section 6.6(a) until a successor Trustee possessing the qualifications to act as
Property Trustee under Section 6.3(a) (a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular Trustees and the
Sponsor. The Delaware Trustee shall not be removed in accordance with Section
6.6(a) until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 6.2 and 6.4 (a "Successor Delaware Trustee") has
been appointed and has accepted such appointment by written instrument executed
by such Successor Delaware Trustee and delivered to the Regular Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until a successor
has been appointed, until death or dissolution or until removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by written instrument executed by such Trustee and delivered to the
Sponsor and the other Trustees, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided that:
(i) no such resignation of the Property Trustee shall be
effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by written instrument
executed by such Successor Property Trustee and
delivered to the Regular Trustees, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
Holders of the Securities; and
(ii) no such resignation of the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may-be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as
the case may be, has been appointed and accepted appointment as provided in this
Section 6.6 within 60 days after delivery of an instrument of resignation or
removal, the resigning or removed Property Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction for
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appointment of a Successor Property Trustee or Successor Delaware Trustee, as
applicable. Such court may thereupon, after prescribing such notice, if any,
as it may deem proper, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust nor to
terminate this Declaration. Whenever a vacancy in the number of Regular
Trustees shall occur until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 6.6, the Regular Trustees in office,
regardless of the number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 4
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided a Quorum
is present, or without a meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee, any and all action of
such Regular Trustee shall be evidenced by a written consent of such Regular
Trustee.
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SECTION 6.10 Delegation of Power by the Regular Trustees.
(a) Any Regular Trustee may delegate to any natural person over the age
of 21, by power of attorney consistent with applicable law, his, her or its
power for the purpose of executing any documents contemplated in Section 3.6.
(b) The Regular Trustees shall have the power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Consolidation, Conversion or Succession to Business.
Any entity into which the Property Trustee, the Delaware Trustee or
any Regular Trustee that is not a natural person may be merged or converted or
with such Trustee may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Trustee is a party, or any entity
succeeding to all or substantially all the corporate trust business of such
Trustee, shall be the successor of such Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided that such entity otherwise is qualified and eligible under this
Article.
ARTICLE 7: TERMS OF THE SECURITIES
SECTION 7.1 General Provisions Regarding the Securities.
(a) The Regular Trustees shall issue, on behalf of the Trust, one
class of preferred securities representing undivided beneficial interests in
the assets of the Trust and one class of common securities representing
undivided beneficial interests in the assets of the Trust.
(i) Preferred Securities. The Preferred Securities of the Trust
shall have an aggregate stated liquidation amount with respect to the
assets of the Trust of _____ dollars ($___________) (subject to increase to
not more than __________ dollars ($______________) in the event of the
exercise of any Over-allotment Option) and a stated liquidation amount with
respect to the assets of the Trust of $25 per Preferred Security. The
Preferred Securities are hereby designated for identification purposes only
as the Preferred Securities. The Preferred Security Certificates shall be
substantially in the form of Exhibit A hereto, with such changes and
additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice.
(ii) Common Securities. The Common Securities of the Trust shall
have an aggregate liquidation amount with respect to the assets of the
Trust of __________________ ($______________) (subject to increase to not
more __________________ dollars ($_______________) in the event of the
exercise of any Over-allotment Option) and a liquidation amount with
respect to the assets of the Trust of $25 per Common Security. The Common
Securities are hereby designated for
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identification purposes only as the Common Securities. The Common
Security Certificates shall be substantially in the form of Exhibit B
hereto, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice.
(b) Payment of Distributions on, and any payment of the Redemption
Price upon a redemption of, the Preferred Securities and the Common Securities,
as applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided that if on any date on
which amounts payable on distribution or redemption, an Indenture Event of
Default has occurred and is continuing, then such amounts payable shall not be
made on any of the Common Securities, and no other payment on account of the
redemption, liquidation or other acquisition of such Common Securities shall be
made, until all accumulated and unpaid Distributions, or payments of the
Redemption Price, as the case may be, on all of the outstanding Preferred
Securities for which Distributions are to be paid or that have been called for
redemption, as the case may be, are fully paid. All funds available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price of, the Preferred Securities then due
and payable.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be validly issued, fully paid and non-assessable
beneficial ownership interests in the assets of the Trust.
(e) Every Person, by virtue of having become a Holder of Securities or
a Beneficial Owner of Preferred Securities in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration, the Guarantee, the Indenture, the
Purchase Contract Agreement, the Pledge Agreement and the Debentures.
(f) The Holders of the Securities shall not have any preemptive or
similar rights.
(g) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. If a Regular Trustee of the Trust
who has signed any of the Certificates ceases to be a Regular Trustee before
such signed Certificates have been delivered by the Trust, such Certificates
nevertheless may be delivered as though the Person who signed such Certificates
had not ceased to be a Regular Trustee. Any Certificate may be signed on behalf
of the Trust by such Persons who, at the actual date of execution of such
Certificate, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of this Declaration any such Person was not such a
Regular Trustee. Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be required
to comply with any law or with any rule or regulation of any stock exchange on
which the Securities may be listed, or to conform to usage.
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A Preferred Security Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the Property
Trustee. Such signature shall be conclusive evidence that such Preferred
Security Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee,
the Property Trustee shall authenticate the Preferred Security Certificates for
original issue. The aggregate number of Preferred Securities outstanding at any
time shall not exceed the liquidation amount set forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Certificates. An authenticating agent may
authenticate Certificates whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee shall
include authentication by such agent. An authenticating agent shall have the
same rights as the Property Trustee to deal with the Sponsor or an Affiliate of
the Sponsor.
(h) Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, upon original issuance
(including Preferred Securities, if any, issued pursuant to the exercise of any
Over-allotment Option), shall be issued as Global Securities in the form of one
or more fully registered global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to The Depository Trust Company, the initial
Depositary, by or on behalf of the Trust. Such Global Certificates initially
shall be registered on the books and records of the Trust in the name of "Cede &
Co.," the nominee of the initial Depositary. No Beneficial Owner of Preferred
Securities shall receive a definitive Preferred Security Certificate
representing such Beneficial Owner's interests in such Global Certificates,
except as provided in Section 7.12. Unless and until definitive, fully
registered Preferred Security Certificates have been issued to the Beneficial
Owners of Preferred Securities pursuant to Section 7.12,
(i) the provisions of this Section 7.1 shall be in full force and
effect;
(ii) the Trust and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents thereunder) as the Holder of the Preferred Securities and the sole
of Holder of the Global Certificates and, except as set forth herein or in
Rule 3a-7 (if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7) with respect to the Property
Trustee, shall have no obligation to the Beneficial Owners of the Preferred
Securities;
(iii) to the extent that the provisions of this Section 7.1 conflict
with any other provisions of this Declaration, the provisions of this
Section 7.1 shall control; and
(iv) the rights of the Beneficial Owners of the Preferred
Securities shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such Beneficial
Owners and the clearing agency and/or the Depositary Participants. The
Depositary shall make book-entry transfers among Depositary Participants
and receive and transmit Distributions on the Global Certificates to such
Depositary Participants; provided that solely for the purposes of
determining
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whether the Holders of the requisite amount of Preferred Securities have
voted on any matter provided for in this Declaration, so long as
definitive Preferred Security Certificates have not been issued, the
Trustees may rely conclusively on, and shall be protected in relying
on, any written instrument (including a proxy) delivered to the Trustees by
the Depositary setting forth the votes of the Beneficial Owners of the
Preferred Securities or assigning the right to vote on any matter to any
other Persons either in whole or in part.
Whenever a notice or other communication to the Holder of the
Preferred Securities is required to be given under this Declaration, unless and
until definitive Preferred Security Certificates have been issued pursuant to
Section 7.1(g), the Trustees shall deliver all such notices and communications
specified herein to be given to the Holders of the Preferred Securities to the
Depositary, and, with respect to any Preferred Security Certificate registered
in the name of a Depositary or the nominee of a Depositary, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Depositary
setting forth the votes of the Beneficial Owners of the Preferred Securities or
assigning the right to vote on any matter or any other Persons either in whole
or in part.
SECTION 7.2 Distributions.
(a) Holders of the Securities shall be entitled to receive
Distributions that shall accumulate and be payable at the rate per annum of
_____% of the stated liquidation amount of $25 per Security until the
Remarketing Settlement Date, and at the Reset Rate thereafter. The amount of
Distributions payable for any period shall be computed (i) for any full
quarterly distribution period, on the basis of a 360-day year of twelve 30-day
months and (ii) for any period shorter than a full quarterly distribution
period, on the basis of a 30-day month and, for any period of less than one
month, on the basis of the actual number of days elapsed per 30-day month.
Subject to Section 7.1(b), Distributions shall be made on the Securities on a
Pro Rata basis. Distributions on the Securities shall accumulate from the date
of original issue, shall be cumulative and shall be payable quarterly, in
arrears, on____________,__________,__________and____________of each year,
commencing_____________, 1999, when, as and if available for payment, by the
Property Trustee, except as otherwise described below. Distributions shall be
payable only to the extent that payments are made to the Trust in respect of the
Debentures held by the Property Trustee and to the extent that the Trust has
funds available for the payment of such Distributions in the Property Account.
(b) Distributions not paid on the scheduled payment date shall
accumulate and compound quarterly at the rate of____% per annum through and
including the Remarketing Settlemetn Date, and at the Reset Rate thereafter
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a payment of
principal of and any premium or interest on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
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(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. If the Preferred Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business on the Business Day preceding such Distribution payment date, unless a
different regular record date is established or provided for the corresponding
interest payment date on the Debentures. The relevant record dates for the
Common Securities shall be the same as for the Preferred Securities. If the
Preferred Securities are not represented by one or more Global Securities, the
relevant record dates for the Preferred Securities shall be selected by the
Regular Trustees and shall be the fifteenth Business Day prior to the relevant
Distribution payment dates. At all times, the Distribution payment dates shall
correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, shall cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution instead shall be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with this Declaration. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date shall be made on the next day that is a
Business Day (and without any interest or other payment in respect of any such
delay), except that if such Business Day is in the next calendar year, such
payment shall be made on the preceding Business Day, with the same force and
effect as if made on such payment date.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities, subject to Section
7.1(b).
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Debentures
or upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be simultaneously applied Pro Rata (subject to
Section 7.1(b)) to redeem Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so repaid or redeemed
at the Redemption Price. Holders of the Securities shall be given not less than
30 nor more than 60 days notice of such redemption in accordance with Section
7.4.
(b) If the Debenture Issuer redeems the Debentures upon the occurrence
and continuance of a Tax Event, the proceeds from such redemption shall be
applied by the Property Trustee to redeem the Securities in whole (but not in
part) at a redemption price per Security equal to the Redemption Amount plus any
accumulated and unpaid Distributions thereon to the Tax Event Redemption Date.
If, following the occurrence of a Tax Event, the Debenture Issuer exercises its
option to redeem the Debentures, the Debenture Issuer shall appoint the
Quotation Agent; if a Tax Event Redemption occurs prior to the Purchase Contract
Settlement Date, the redemption price payable in liquidation of the Securities
will be distributed to _________, acting as the securities intermediary under
the Pledge Agreement, which in turn will apply that amount to purchase the
Treasury Portfolio and remit the remaining portion, if any, of such price to
_________, acting as the purchase contract agent under the Purchase Contract
Agreement, for
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payment to the Holders of the Securities. If a Tax Event Redemption occurs
after the Purchase Contract Settlement Date, the Treasury Portfolio shall not
be purchased and the Property Trustee shall distribute to the Holders of the
Securities on the Tax Event Redemption Date the Redemption Price payable in
liquidation of such Holders' interests in the assets of the Trust.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, shall be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged at least 30 but no more than 60
days before the date fixed for redemption or exchange thereof which, in the case
of a redemption, shall be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the dates
on which notices are given pursuant to this Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to the Holders of
the Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of the Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(b) Subject to the Trust's fulfillment of the notice requirements set
forth in Section 7.4(a), if Securities are to be redeemed, then (provided that
the Debenture Issuer has paid the Property Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures) (i)
with respect to the Preferred Securities represented by one or more Global
Securities, by 12:00 noon, New York City time, on the redemption date, the
Property Trustee will deposit irrevocably with the Depositary or its nominee
funds sufficient to pay the applicable Redemption Price, and the Property
Trustee shall give the Depositary irrevocable instructions and authority to pay
the Redemption Price to the Beneficial Owners of the Preferred Securities, and
(ii) with respect to Securities not represented by one or more Global
Securities, the Property Trustee shall pay the applicable Redemption Price to
the Holders of such Securities by check mailed to the address of each Holder
appearing on the register of the Trust on the redemption date. If any date
fixed for redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next Business Day
(without any interest thereon), except that if such Business Day falls in the
next calendar year, such payment shall be made on the preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. Notwithstanding the foregoing, so long as the Holder of any
Preferred Securities is the Collateral Agent or the Purchase Contract Agent, the
payment of the Redemption Price in respect of the Preferred Securities held by
the Collateral Agent or the Purchase Contract Agent shall be made no later than
12:00 noon, New York City time, on the redemption date by check or wire transfer
in immediately available funds at such place and to such account as may be
designated by the Collateral Agent or the Purchase Contract Agent. If payment
of the Redemption Price in respect of any Securities is improperly witheld or
refused and not paid either by the Trust or by the Sponsor as guarantor pursuant
to the Guarantee, then Distributions on such Securities shall continue to
accumulate at the then applicable rate, from the original redemption date to the
actual date of payment, in which case the actual payment date shall be the date
fixed for redemption for purposes of calculating the
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Redemption Price. For these purposes, the applicable Redemption Price shall
not include Distributions that are being paid to Holders of Securities who
were not Holders of Securities on a relevant record date. If a
Redemption/Distribution Notice has been given and funds have been deposited
or paid as required, then immediately prior to the close of business on the
date of such deposit or payment, Distributions will cease to accumulate on
the Securities called for redemption, and all rights of Holders of such
Securities so called for redemption shall cease, except the right of the
Holders of such Securities to receive the Redemption Price, but without
interest on such Redemption Price, and from and after the date fixed for
redemption, such Securities will cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except for the unredeemed portion of any Securities being
redeemed in part.
(c) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or its
Affiliates may purchase, at any time and from time to time, outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of the Preferred Securities.
(a) Except as provided under this Section 7.5 and Section 11.1 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d), the Holders of a
Majority in Liquidation Amount of the Preferred Securities, voting separately as
a class, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or to direct
the exercise of any trust or power conferred upon the Property Trustee under
this Declaration, including the right to direct the Property Trustee, as Holder
of the Debentures, to (i) exercise the remedies available to it under the
Indenture, (ii) consent to any amendment or modification of the Indenture or the
Debentures where such consent is required or (iii) waive any past default and
its consequences that are waivable under Section ___ of the Indenture; provided
that if an Indenture Event of Default has occurred and is continuing, then the
Holders of 25% of the aggregate stated liquidation amount of the Preferred
Securities may direct the Property Trustee to declare the principal of and
interest on the Debentures due and payable; and provided further that where a
consent or action under the Indenture would require the consent or act of the
Holders of a Supermajority of the aggregate principal amount of Debentures
affected thereby, the Property Trustee only may give such consent or take such
action at the direction of the Holders of at least the same Supermajority in
aggregate stated liquidation amount of the Preferred Securities.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may institute, to the fullest extent
permitted by law, a legal proceeding directly against the
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Debenture Issuer to enforce the Property Trustee's rights under the Indenture
without first instituting any legal proceeding against the Property Trustee
or any other Person. In addition, if a Trust Enforcement Event has occurred
and is continuing and such event is attributable to the failure of the
Debenture Issuer to make any interest, principal or other required payments
when due under the Indenture, then a Holder of Preferred Securities may
institute a Direct Action against the Debenture Issuer on or after the
respective due date specified in the Debentures.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Debenture Issuer with respect to the Debentures. Such notice shall state that
such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clauses (i) and (ii) of Section 7.5(b)
above, unless the Property Trustee has obtained an opinion of independent tax
counsel to the effect that the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes as a result of such action,
and that each Holder of Preferred Securities shall be treated as owning an
undivided beneficial ownership interest in the Debentures.
(e) If the consent of the Property Trustee, as the Holder of the
Debentures, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee shall request the direction
of the Holders of the Securities with respect to such amendment or modification
and shall vote with respect to such amendment or modification as directed by a
Majority in Liquidation Amount of the Securities voting together as a single
class; provided that where a consent under the Indenture would require the
consent of the Holders of a Supermajority of the aggregate principal amount of
the Debentures, the Property Trustee only may give such consent at the direction
of the Holders of at least the same Supermajority in aggregate stated
liquidation amount of the Securities. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities
unless the Property Trustee has obtained an opinion of independent tax counsel
to the effect that the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes as a result of such action,
and that each Holder will be treated as owning an undivided beneficial ownership
interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of the Holders of the Preferred
Securities may be given at a separate meeting of the Holders of the Preferred
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to written consent. The Regular Trustees shall cause a
notice of any meeting at which Holders of the Preferred Securities are entitled
to vote to be mailed to each Holder of record of Preferred Securities. Each
such notice shall include a statement setting forth: (i) the date of such
meeting; (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote; and (iii) instructions for
the delivery of proxies.
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(h) No vote or consent of the Holders of the Preferred Securities shall
be required for the Trust to redeem and cancel the Preferred Securities or
distribute the Debentures in accordance with this Declaration and the terms of
the Securities.
(i) Notwithstanding that the Holders of the Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Debenture Issuer
the Trustees or any entity directly or indirectly controlled by, or under direct
or indirect common control with, the Debenture Issuer or any Trustee shall not
be entitled to vote or consent and shall be treated, for purposes of such vote
or consent, as if such Preferred Securities were not outstanding.
(j) Except as provided under Section 7.5(k), the Holders of the
Preferred Securities shall have no rights to appoint or remove the Trustees, who
may be appointed, removed or replaced solely by the Holders of the Common
Securities.
(k) If an Indenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed [and replaced] at
such time by a Majority in Liquidation Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of the Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 and
Section 11.1 and as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by this Declaration, the
Holders of the Common Securities shall have no voting rights.
(b) Subject to Section 7.5(k), the Holders of the Common Securities
shall be entitled to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees in accordance with Article 6.
(c) Subject to Section 2.6 and only after all Trust Enforcement Event
with respect to the Preferred Securities have been cured, waived, or otherwise
eliminated and subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in this paragraph (c), the
Holders of the Common Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Declaration, including the right to direct the
Property Trustee, as Holder of the Debentures, to (i) exercise the remedies
available to it under the Indenture, (ii) consent to any amendment or
modification of the Indenture or the Debentures where such consent is required
or (iii) waive any past default and its consequences that are waivable under
Section ___ of the Indenture; provided that where a consent or action under the
Indenture would require the consent or act of the Holders of a Supermajority of
the aggregate principal amount of Debentures affected thereby, only the Holders
of at least the same Supermajority of the aggregate stated liquidation amount of
the Common Securities may direct the Property Trustee to give such consent or
take such action. Except with respect to directing the time, method, and place
of conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clause 7.6(c)(i) and (ii)
above unless the Property Trustee has obtained an opinion of
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independent tax counsel to the effect that, as a result of such action, for
United States federal income tax purposes the Trust will not fail to be
classified as a grantor trust and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after the Holders of the Common Securities have made a written
request, the Holders of the Common Securities may institute, to the fullest
extent permitted by law, a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the Debentures without
first instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of the Holders of the Common
Securities may be given at a separate meeting of the Holders of the Common
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to written consent. The Regular Trustees shall cause a
notice of any meeting at which the Holders of the Common Securities are entitled
to vote to be mailed to the Holders of the Common Securities. Such notice shall
include a statement setting forth: (i) the date of such meeting; (ii) a
description of any resolution proposed for adoption at such meeting on which the
Holders of the Common Securities are entitled to vote; and (iii) instructions
for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities shall be
required for the Trust to redeem and cancel the Common Securities or to
distribute Debentures in accordance with this Declaration and the terms of the
Securities.
SECTION 7.7 Paying Agent.
If any Preferred Securities are not represented by one or more
Global Securities, the Trust shall maintain in the Borough of Manhattan, New
York City, State of New York, an office or agency where the Preferred Securities
may be presented for payment ("Paying Agent"). The Regular Trustees shall
appoint the paying agent (which shall be a bank or trust company acceptable to
the Debenture Issuer) and may appoint one or more additional paying agents in
such other locations as they shall determine. The term "Paying Agent" includes
any additional paying agent. The Regular Trustees may change any Paying Agent
without prior notice to the Holders of the Securities. The Regular Trustees
shall notify the Property Trustee of the name and address of any Paying Agent
not a party to this Declaration. If the Trust fails to appoint or maintain
another entity as Paying Agent, the Property Trustee shall act as such. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Property Trustee and the Debenture Issuer.
SECTION 7.8 Listing.
The Sponsor shall use its best efforts to cause the PEPS Units to
be listed for quotation on the New York Stock Exchange.
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SECTION 7.9 Transfer of the Preferred Securities.
(a) The Preferred Securities initially shall be pledged, pursuant to
the terms of the Pledge Agreement, as collateral to secure the obligations of
the Holders of PEPS Units to purchase common shares of the Company in accordance
with the terms of the Purchase Contract Agreement.
(b) The Preferred Securities may be transferred, in whole or in part,
only in accordance with the terms and conditions set forth in this Declaration
and the Preferred Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Preferred Security not made in accordance
with this Declaration shall be null and void.
(c) Subject to this Section 7.9 and Section 7.12, the Preferred
Securities shall be freely transferable.
(d) The Trust shall cause to be kept at the Corporate Trust Office a
register in which, subject to such reasonable regulations as it may prescribe,
the Trust shall provide for the registration of Preferred Securities and of
transfers of Preferred Securities. The Property Trustee is hereby appointed
"Security Registrar" for the purpose of registering Preferred Securities and
transfers of Preferred Securities as herein provided.
(e) Upon surrender for registration of transfer of any Preferred
Securities at an office or agency of the Trust designated for such purpose, a
Regular Trustee shall execute, and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Preferred Securities of any authorized denominations and of a like aggregate
principal amount.
(f) At the option of the Holder, Securities may be exchanged for other
Preferred Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Preferred Securities to be exchanged at
such office or agency. Whenever any Preferred Securities are so surrendered for
exchange, a Regular Trustee shall execute, and the Property Trustee shall
authenticate and deliver, the Preferred Securities that the Holder making the
exchange is entitled to receive.
(g) If so required by the Trust or the Property Trustee, every
Preferred Security presented or surrendered for registration of transfer or for
exchange shall be duly endorsed, or accompanied by a duly executed written
instrument of transfer in form satisfactory to the Trust and the Security
Registrar, by the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be made for any registration of transfer or
exchange of Preferred Securities, but the Trust may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Preferred
Securities.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
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(a) any mutilated Certificates are surrendered to the Regular Trustees,
or if the Regular Trustees receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of the Sponsor and the Trust
harmless, then, in the absence of notice that such Certificate has been acquired
by a bona fide purchaser, any Regular Trustee shall execute and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 7.10, the Regular Trustees
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 7.10 shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate is found at any
time.
SECTION 7.11 Deemed Holders.
The Trustees may treat the Person in whose name any Certificate is
registered on the register of the Trust as the sole holder of such Certificate
and of the Securities represented thereby for purposes of receiving
Distributions and for all other purposes whatsoever. Accordingly, the Trustees
shall not be bound to recognize any equitable or other claim to or interest in
such Certificate or in the Securities represented by such Certificate on the
part of any Person, whether or not the Trust has actual or other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities initially shall be issued in the form of
one or more Global Securities. A Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, one or more
Global Securities that (i) shall represent and be denominated in an amount equal
to the aggregate stated liquidation amount of all of the Preferred Securities to
be issued in the form of Global Securities and not yet canceled, (ii) shall be
registered in the name of the Depositary for the Preferred Securities or the
nominee of such Depositary and (iii) shall be delivered by the Property Trustee
to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within
the meaning of the Declaration and is registered in the
name of The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee of the
Depositary. This Preferred Security is exchangeable
for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in
the limited circumstances described in the Declaration,
and no transfer of this Preferred Security (other than
a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another
nominee
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of the Depositary) may be reregistered except in limited
circumstances.
Unless this certificate is presented by an authorized
representative of the Depositary to UCU Capital Trust I
or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as requested
by an authorized representative of the Depositary (and
any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized
representative of the Depositary), and except as
otherwise provided in the Amended and Restated
Declaration of UCU Capital Trust I dated September
____,1999, as amended from time to time, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein."
Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver any Preferred Securities not
represented by a Global Security to the Persons in whose names such definitive
Preferred Securities are so registered.
At such time as all interests in Global Securities have been redeemed,
repurchased or canceled, such Global Securities shall be canceled, upon receipt
thereof, by the Property Trustee in accordance with standing procedures of the
Depositary. At any time prior to such cancellation, if any interest in a Global
Security is exchanged for Preferred Securities not represented by a Global
Security, redeemed, canceled or transferred to a transferee who receives
Preferred Securities not represented by a Global Security, or if any Preferred
Security not represented by a Global Security is exchanged or transferred for
part of a Global Security, then, in accordance with the standing procedures of
the Depositary, the liquidation amount of such Global Security shall be reduced
or increased, as the case may be, and an endorsement shall be made on such
Global Security by the Property Trustee to reflect such reduction or increase.
The Trust and the Property Trustee, as the authorized representative of the
Holders of the Preferred Securities, may deal with the Depositary for all
purposes of this Declaration, including the making of payments due on the
Preferred Securities and exercising the rights of Holders of the Preferred
Securities hereunder. The rights of any Beneficial Owner shall be limited to
those established by law and agreements between such owners and Depository
Participants; provided that no such agreement shall give to any Person any
rights against the Trust or the Property Trustee without the written consent of
the parties so affected. Multiple requests and directions from and votes of the
Depositary as the Holder of the Preferred Securities represented by Global
Securities with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Preferred
Securities in excess of those held in the name of the Depositary or its nominee.
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If at any time the Depositary notifies the Trust that it is unwilling or
unable to continue as Depositary for the Preferred Securities or if at any time
the Depositary no longer is eligible under this Section 7.12, the Regular
Trustees shall appoint a successor Depositary with respect to the Preferred
Securities. If a successor Depositary is not appointed by the Trust within 90
days after the Trust receives such notice or becomes aware of such
ineligibility, the Trust's election that the Preferred Securities be represented
by one or more Global Securities shall no longer be effective, and a Regular
Trustee shall execute, and the Property Trustee will authenticate and deliver,
Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate stated liquidation amount equal to the aggregate
stated liquidation amount of the Global Securities representing the Preferred
Securities in exchange for such Global Securities.
The Trust at any time and in its sole discretion may determine that the
Preferred Securities issued in the form of one or more Global Securities shall
no longer be represented by Global Securities. In such event a Regular Trustee
on behalf of the Trust shall execute, and the Property Trustee shall
authenticate and deliver, Preferred Securities in definitive registered form, in
any authorized denominations, in an aggregate stated liquidation amount equal to
the aggregate stated liquidation amount of the Global Securities representing
the Preferred Securities, in exchange for such Global Securities.
Notwithstanding any other provisions of this Declaration (other than the
provisions set forth in Section 7.9), Global Securities may not be transferred
as a whole except by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
Interests of Beneficial Owners may be transferred or exchanged for
Preferred Securities not represented by a Global Security, and Preferred
Securities not represented by a Global Security may be transferred or exchanged
for a Global Security or Securities, in accordance with rules of the Depositary
and the provisions of Section 7.9.
SECTION 7.13 Remarketing.
(a) The Debenture Issuer shall request, not later than 15 nor more than
30 calendar days prior to the Remarketing Date, that the Depositary notify the
Holders of the Preferred Securities and the holders of PEPS Units and the
Treasury PEPS Units of the Remarketing and of the procedures that must be
followed if a Holder of Preferred Securities wishes to make a Cash Settlement.
(b) Not later than 5:00 P.M., New York City time, on the, seventh
Business Day preceding ______________, each Holder of Preferred Securities may
elect to have the Preferred Securities held by such Holder remarketed in the
Remarketing. Under Section [5.4] of the Purchase Contract Agreement, holders of
PEPS Units that do not give notice of their intention to make a Cash Settlement
of the Purchase Contract component of their PEPS Units prior to such time in the
manner specified in such Section, or have given such notice but fail to deliver
cash prior to 11:00 A.M., New York City time, on or prior to the fifth Business
Day preceding _____________________, shall be deemed to have consented to the
disposition of the Preferred
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Securities comprising a component of their PEPS Units in the Remarketing.
Holders of the Preferred Securities that are not a component of PEPS Units
wishing to elect to have their Preferred Securities remarketed shall give to
the Property Trustee notice of their election prior to 11:00 A.M., New York
City time on such seventh Business Day. Any such notice shall be irrevocable
and may not be conditioned upon the level at which the Reset Rate is
established in the Remarketing. Promptly after 11:00 A.M., New York City
time, on such fifth Business Day, the Property Trustee, based on the notices
received by it prior to such time (including notices from the Purchase
Contract Agent as to Purchase Contracts for which Cash Settlement has been
elected and cash received), shall notify the Trust, the Sponsor and the
Remarketing Agents of the number of Preferred Securities to be tendered for
purchase in the Remarketing.
(c) If any Holder of Preferred Securities does not give a notice of its
intention to make a Cash Settlement or gives such notice but fails to deliver
cash as-described in Section 7.13(b), or gives a notice of election to have
Preferred Securities that are not a component of PEPS Units remarketed, then the
Preferred Securities of such Holder shall be deemed tendered for purchase in the
Remarketing, notwithstanding any failure by such Holder to deliver or properly
deliver such Preferred Securities to the Remarketing Agents for purchase.
(d) The right of each Holder to have Preferred Securities tendered for
purchase shall be limited to the extent that (i) the Remarketing Agents conduct
a Remarketing pursuant to the terms of the Remarketing Agreement, (ii) the
Preferred Securities tendered have not been called for redemption, (iii) the
Remarketing Agents are able to find a purchaser or purchasers for the tendered
Preferred Securities and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agents.
(e) On the Remarketing Date, the Remarketing Agents shall use
commercially reasonable efforts to remarket, at a price equal to 100% of the
aggregate stated liquidation amount thereof, the Preferred Securities tendered
or deemed tendered for purchase. If a Remarketing of the Preferred Securities
is not successful on the Remarketing Date, the Remarketing Agents shall attempt
to remarket the Preferred Securities approximately every two weeks thereafter
until the earlier of (1) a successful remarketing of the Preferred Securities or
(2) three days prior to the Purchase Contract Settlement Date.
(f) If, as a result of the efforts described in 7.13(e), the
Remarketing Agents have determined that they will be able to remarket all of the
Preferred Securities tendered or deemed tendered for purchase at a price of 100%
of the aggregate stated liquidation amount of such Preferred Securities, the
Remarketing Agents shall determine the Reset Rate, which shall be the rate per
annum (rounded to the nearest one-thousandth (0.001) of one percent per annum)
sufficient to cause the then current aggregate market value of the Preferred
Securities to be at least equal to 100% of the cash purchase price equivalent of
the treasury consideration, as such terms are defined in the Remarketing
Agreement, that the Remarketing Agents determine, in their sole judgment, to be
the lowest rate per annum that will enable them to remarket all of the Preferred
Securities tendered or deemed tendered for Remarketing.
(g) [If none of the Holders of the Preferred Securities or the holders
of the PEPS Units elect to have Preferred Securities remarketed in the
Remarketing, the Reset Rate shall be
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the rate determined by the Remarketing Agents, in their sole discretion, as
the rate that would have been established had a Remarketing been held on the
Remarketing Date.]
(h) If, by 4:00 P.M., New York City time, on the third Business Day
prior to the Purchase Contract Settlement Date, the Remarketing Agents are
unable to remarket all of the Preferred Securities tendered or deemed tendered
for purchase, a failed Remarketing ("Failed Remarketing") shall be deemed to
have occurred and the Remarketing Agents shall so advise by telephone the
Depositary, the Property Trustee, the Indenture Trustee, the Trust and the
Sponsor. In the event of a Failed Remarketing, the Reset Rate shall equal the
Two-Year Benchmark Treasury plus the Applicable Margin.
(i) By approximately 4:30 P.M., New York City time, on the third
Business Day prior to the Scheduled Remarketing Settlement Date, the Remarketing
Agent shall advise, by telephone (i) the Depositary, the Property Trustee, the
Indenture Trustee, the Trust and the Sponsor of the Reset Rate determined in the
Remarketing and the number of Preferred Securities sold in the Remarketing, (ii)
each purchaser (or the Depositary Participant thereof) of the Reset Rate and the
number of Preferred Securities such purchaser is to purchase and (iii) each
purchaser to give instructions to its Depositary Participant to pay the purchase
price on the Remarketing Settlement Date in same day funds against delivery of
the Preferred Securities purchased through the facilities of the Depositary.
(j) In accordance with the Depositary's normal procedures, on the
Remarketing Settlement Date, the transactions described above with respect to
each Preferred Security tendered for purchase and sold in the Remarketing shall
be executed through the Depositary, and the accounts of the respective
Depositary Participants shall be debited and credited and such Preferred
Securities delivered by book-entry as necessary to effect purchases and sales of
such Preferred Securities. The Depositary shall make payment in accordance with
its normal procedures.
(k) If any Holder of the Preferred Securities selling Preferred
Securities in the Remarketing fails to deliver such Preferred Securities, the
Depositary Participant of such selling holder and of any other Person that was
to have purchased Preferred Securities in the Remarketing may deliver to any
such other Person a number of Preferred Securities that is less than the number
of Preferred Securities that otherwise was to be purchased by such Person. In
such event, the number of Preferred Securities to be so delivered shall be
determined by such Depositary Participant, and delivery of such lesser number of
Preferred Securities shall constitute good delivery.
(l) The Remarketing Agents are not obligated to purchase any Preferred
Securities that otherwise would remain unsold in the Remarketing. Neither the
Trust, any Trustee, the Sponsor nor the Remarketing Agents shall be obligated in
any case to provide funds to make payment upon tender of the Preferred
Securities for Remarketing.
(m) Under the Remarketing Agreement, the Sponsor, in its capacity as
Debenture Issuer, shall be liable for, and shall pay, any and all costs and
expenses incurred in connection with the Remarketing, and the Trust shall not
have any liabilities for such costs and expenses.
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(n) The tender and settlement procedures set in this Section 7.13,
including provisions for payment by purchasers of the Preferred Securities in
the Remarketing, shall be subject to modification to the extent required by the
Depositary or if the book-entry system is no longer available for the Preferred
Securities at the time of the Remarketing, to facilitate the tendering and
remarketing of the Preferred Securities in certificated form. In addition, the
Remarketing Agents may modify the settlement procedures set forth herein in
order to facilitate the settlement process.
ARTICLE 8: DISSOLUTION AND TERMINATION OF THE TRUST
SECTION 8.1 Dissolution and Termination of the Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Debenture Issuer;
(ii) the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor; the receipt by the Trust of the consent of the
Holders of at least a Majority in Liquidation Amount of the Securities to
dissolve the Trust and file a certificate of cancellation with respect to
the Trust; or the revocation of the Sponsor's charter and the expiration of
90 days after the date of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the Sponsor
or the Trust;
(iv) the time when all of the Securities shall have been called for
redemption and the amounts then due shall have been paid to the Holders of
the Securities;
(v) upon the direction by the Property Trustee, following the
occurrence and continuation of a Tax Event pursuant to which the Trust has
been dissolved and all of the Debentures have been distributed to the
Holders of the Securities in exchange for all of the Securities;
(vi) at the Sponsor's sole discretion, by notice and direction to
the Property Trustee to distribute the Debentures to the Holders of the
Securities in exchange for all of the Securities; provided that the Sponsor
will be required to obtain an opinion of counsel that the distribution of
the Debentures will not be taxable to the holders of the Preferred
Securities for United States federal income tax purposes; or
(vii) the time when all of the Regular Trustees and the Sponsor have
consented to dissolution of the Trust, provided such action is taken before
the issuance of any Securities.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a) and upon completion of the winding up and liquidation of
the Trust, the Trustees shall terminate the Trust by executing and filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
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(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation shall be entitled to receive, out
of the assets of the Trust available for distribution to the Holders of the
Securities after satisfaction of the Trust's liabilities to creditors, if any,
cash or other immediately available funds in an amount equal to the aggregate of
the stated liquidation amount of $25 per Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"); provided if the Liquidation occurs prior to the Purchase
Contract Settlement Date, the Redemption Price payable to the Collateral Agent,
in liquidation of the Holders' interests in the Preferred Securities, will be
distributed to the Collateral Agent, which in turn will apply an amount equal to
the Redemption Amount of such Redemption Price to purchase the Treasury
Portfolio on behalf of the Holders of the Securities and remit the remaining
portion, if any, of such Redemption Price to the Purchase Contract Agent for
payment to the Holders. If, however, Debentures are to be distributed in
connection with such Liquidation, then the Holders of the Securities shall
receive on a Pro Rata basis Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of, with an interest rate identical to
the distribution rate of, and accrued and unpaid interest equal to accumulated
and unpaid Distributions on, such Securities in exchange for such Securities;
provided if the Liquidation occurs prior to the Purchase Contract Settlement
Date, the Debentures receivable by the Holders shall be transferred to the
Collateral Account.
(b) If, upon any such Liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay the
aggregate Liquidation Distribution in full, then the amounts payable directly by
the Trust on the Securities shall be paid on a Pro Rata basis. The Holders of
the Common Securities shall be entitled to receive the Liquidation Distribution
Pro Rata with the Holders of the Preferred Securities, except that if an
Indenture Event of Default has occurred and is continuing, then the Preferred
Securities shall have a preference over the Common Securities with regard to the
Liquidation Distribution.
(c) After the date fixed for any distribution of Debentures upon
dissolution of the Trust, (i) the Securities no longer shall be deemed to be
outstanding and (ii) the Certificates shall be deemed to represent the
Debentures in a principal amount equal to the stated liquidation amount of the
Securities, bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on the Securities, until such Certificates
are presented to the Regular Trustees or agent for transfer or reissuance.
ARTICLE 9: LIMITATION OF LIABILITY OF
HOLDERS OF THE SECURITIES, THE DELAWARE TRUSTEE AND OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee
and the terms of the Securities, the Sponsor:
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(i) shall not be personally liable for the return of any portion
of the capital contributions (or any return thereon) of the Holders of the
Securities that will be made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any Holder of
the Securities any deficit, upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holder
of the Common Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; provided that the
Holders of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent such debts and obligations are not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holder
of the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or to 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 on behalf of the Trust 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 Declaration 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 gross negligence (or, in
the case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) Each Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters such
Indemnified Person reasonably believes to be within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, 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 the Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property
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Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between a
Covered Person and an Indemnified Person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Trust or
any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 9.4 Indemnification.
(a) (i) Pursuant to the Indenture, the Debenture Issuer shall
indemnify, to the full extent permitted by law, any Debenture Issuer
Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Trust), by reason of the fact that he or
she is or was a Debenture Issuer Indemnified Person against expenses
(including attorney fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action,
suit or proceeding if he or she acted in good faith and in a manner that he
or she reasonably believed to be in or not opposed to the best interests of
the Trust and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the Debenture Issuer
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Indemnified Person did not act in good faith and in a manner that he or she
reasonably believed to be in or not opposed to the best interests of the
Trust and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) Pursuant to the Indenture, the Debenture Issuer shall
indemnify, to the full extent permitted by law, any Debenture Issuer
Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason of the fact
that he or she is or was a Debenture Issuer Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or
suit if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Trust and
except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Debenture Issuer Indemnified Person was
adjudged to be liable to the Trust, unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses that such
Court of Chancery or such other court shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Debenture Issuer Indemnified Person is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in paragraphs (i) and (ii). Such determination shall be made (1)
by a majority vote of a quorum of the Regular Trustees who were not parties
to such action, suit or proceeding, (2) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
Holders of the Common Securities.
(iv) Expenses (including attorneys' fees) incurred by a Debenture
Issuer Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 9.4(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Debenture Issuer
Indemnified Person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by a majority vote of a
quorum of disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion or
(iii) the Holders of the Common Securities, that, based upon the facts
known to the Regular Trustees, counsel or the Holders of the Common
Securities at the time such determination is made, such Debenture Issuer
Indemnified Person acted in bad faith or in a manner that such Person did
not believe to be in or not opposed to the best interests of the Trust, or,
with respect to any criminal proceeding, that
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such Debenture Issuer Indemnified Person believed or had reasonable cause
to believe his or her conduct was unlawful. In no event shall any advance
be made in instances where the Regular Trustees, independent legal counsel
or the Holders of the Common Securities reasonably determine that such
Person deliberately breached his or her duty to the Trust or to the
Holders of the Securities.
(v) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 9.4(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or the Holders of the Preferred Securities or otherwise, both as to
action in an official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
9.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Debenture Issuer Indemnified Person who serves in such
capacity at any time while this Section 9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall not affect any rights or
obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Debenture Issuer
Indemnified Person against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Debenture Issuer would have the power to
indemnify him or her against such liability under the provisions of this
Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any Person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 9.4(a) with respect to the
resulting or surviving entity as he or she would have had with respect to
such constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 9.4(a) shall continue, unless
otherwise provided when authorized or ratified, as to a Person who has
ceased to be a Debenture Issuer Indemnified Person and shall inure to the
benefit of the heirs, executors and administrators of such a Person. The
obligation to indemnify as set forth in this Section 9.4(a) shall survive
the resignation or removal of the Delaware Trustee or the Property Trustee
or the termination of this Declaration.
(b) Pursuant to the Indenture, the Debenture Issuer agrees to
indemnify, to the fullest extent permitted by law, the (i) Property Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee or the
Delaware Trustee and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a
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"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any loss, liability or expense incurred without
gross negligence (or, in the case of the Property Trustee, negligence) or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 9.4(b) shall survive the
satisfaction and discharge of this Declaration.
SECTION 9.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 6.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the activities of the Trust, and the
Trust and the Holders of the Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
activities of the Trust, shall not be deemed wrongful or improper. Each Covered
Person, the Sponsor, the Delaware Trustee and the Property Trustee shall not be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE 10: ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or shall cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
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(b) The Regular Trustees shall cause to be prepared and delivered to
each Holder of Securities, within 90 days after the end of each Fiscal Year of
the Trust, annual financial statements of the Trust, including a balance sheet
of the Trust as of the end of such Fiscal Year, and the related statements of
income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each Holder of Securities an annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority an annual United States federal income tax
return, on Form 1041 or such other form required by United States federal income
tax law, and any other annual income tax returns required to be filed on behalf
of the Trust with any state or local taxing authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided that the Property Trustee shall designate the
signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Regular Trustees shall request, and the Holders of the Securities shall provide
to the Trust, such forms or certificates as are necessary to establish an
exemption from withholding with respect to each Holder of Securities and any
representations and forms as shall reasonably be requested by the Regular
Trustees to assist them in determining the extent of, and in fulfilling, the
Trust's withholding obligations. The Regular Trustees shall file required form
with applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder of Securities, shall remit amounts withheld
with respect to such Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder of Securities, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to such Holder. In the event of any claimed over withholding, a Holder shall be
limited to an action against the applicable jurisdiction. If the amount
required to be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such withholding.
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ARTICLE 11: AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended only by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee (if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee) and
(iii) by the Delaware Trustee (if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee).
(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee first has received an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment that affects the
rights, powers, duties, obligations or immunities of the Property Trustee,
the Property Trustee first has received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including
the terms of the Securities); and
(B) an opinion of counsel (which may be counsel to the
Sponsor or the Trust) that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to
(A) cause the Trust to be classified other than as a
grantor trust for United States federal income tax
purposes;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment
Company Act.
(c) At such time after the Trust has issued any Securities that remain
outstanding, (i) any amendment that would (A) adversely affect the powers,
preferences or special rights of the Securities, whether by way of amendment to
this Declaration or otherwise or (B) result in the dissolution, winding-up or
termination of the Trust other than pursuant to the terms of this
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Declaration shall not be effective except with the approval of the Holders of
at least a 66 2/3% in Liquidation Amount of the Securities; provided that if
any amendment or proposal referred to in clause (A) above would adversely
affect only the Preferred Securities or the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal, and
such amendment or proposal shall not be effective except with the approval of
a 66 2/3% in Liquidation Amount of the class of Securities affected thereby;
and (ii) any amendment that would (X) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of
any distribution require to be made in respect of the Securities as of a
specified date or (Y) restrict the right of a Holder of Securities to
institute suit for the enforcement of an such payment on or after such date
shall not be effective except with the approval of each Holder of Securities
affected thereby.
(d) This Section 11.1 shall not be amended without the consent of all
of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders
of the Common Securities.
(f) The rights of the Holders of the Common Securities under Articles
to increase or decrease the number of, and appoint and remove, Trustees shall
not be amended without the consent of the Holders of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended
without the consent of the Holders of the Securities, provided that such
amendment does not have a material adverse effect on the rights, preferences or
privileges of the Holders of the Securities:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration;
(iii) to add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority;
(v) to modify, eliminate and add to any provision of this
Declaration to ensure that the Trust will be classified as a grantor trust
for United States federal income tax purposes at all times that any
Securities are outstanding or to ensure that the Trust will not be required
to register as an Investment Company under the Investment Company Act;
provided that such modification, elimination or addition would not
adversely affect in any material respect the rights, privileges or
preferences of any Holder of Securities; or
(vi) to facilitate the tendering, remarketing and settlement of the
Preferred Securities as contemplated by Section 7.13(n).
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SECTION 11.2 Meetings of the Holders of the Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class
of Securities are entitled to act under the terms of this Declaration, the
terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if directed to do
so by the Holders of at least 10% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the Regular
Trustees a writing stating that the signing Holders of the Securities wish to
call a meeting and indicating the general or-specific purpose for which the
meeting is to be called. The Holder or Holders of the Securities calling a
meeting shall specify in writing the Certificates held by such Holder or
Holders, and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of the Holders of
the Securities:
(i) Notice of any such meeting shall be given to all the Holders
of the Securities having a right to vote thereat at least seven days and
not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of the Securities is permitted or
required under this Declaration or the rules of any stock exchange on which
the Preferred Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders of the
Securities. Any action that may be taken at a meeting of the Holders of
the Securities may be taken without a meeting and without prior notice if a
consent in writing setting forth the action so taken is signed by the
Holders of the Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to authorize or
take such action at a meeting at which all Holders of the Securities having
a right to vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the Holders of the
Securities entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Holders of
the Securities for the purpose of taking any action without a meeting shall
be returned to the Trust within the time specified by the Regular Trustees.
(ii) Each Holder of the Securities may authorize any Person to act
for it by proxy on any or all matters in which such Holder is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing such proxy. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation.
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(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate.
(iv) Unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed for trading
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of the
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of the Securities,
waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote.
ARTICLE 12: REPRESENTATIONS OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property Trustee.
The initial Property Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Declaration, and each Successor Property Trustee
represents and warrants to the Trust and the Sponsor at the time of such
Successor Property Trustee's acceptance of its appointment as Property Trustee,
that:
(a) the Property Trustee is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the Property Trustee of
this Declaration have been duly authorized by all necessary corporate action on
the part of the Property Trustee; this Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Declaration by the
Property Trustee do not conflict with, nor constitute a breach of, the articles
of association or incorporation, as the case may be, or the by-laws (or other
similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution
delivery or performance by the Property Trustee of this Declaration.
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SECTION 12.2 Representations and Warranties of the Delaware Trustee.
The initial Delaware Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time of such
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee,
that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2 and has the power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Declaration and, if it
is not a natural person, is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration; and this Declaration
constitutes a legal, valid and binding obligation of the Delaware Trustee under
Delaware law, enforceable against it in accordance with its terms subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law) and
(c) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of this Declaration.
ARTICLE 13: MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Declaration 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, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of
the Securities):
c/o UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Attention: Dale J. Wolf
Telecopy No: ________________
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Regular Trustees, the Property Trustee and the Holders of the Securities):
Chase Manhattan Bank Delaware
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1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
Telecopy No:_________________
(c) if given to the Property Trustee, at its Corporate Trust Office (or
such other address as the Property Trustee may give notice of to the Regular
Trustees, the Delaware Trustee and the Holders of the Securities);
(d) if given to the Holders of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holders of
the Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
c/o UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Attention: Dale J. Wolf
Telecopy No: ________________
(e) if given to any Holder of Preferred Securities, at such Holder's
address as set forth in the register of the Trust.
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 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware, without
regard to principles of conflicts of laws.
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted in a manner consistent with such
classification.
SECTION 13.4 Headings.
The headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
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SECTION 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustee
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Declaration or the application of such provision
to any Person or circumstance is held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 13.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page, and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
UtiliCorp United Inc.,
as Sponsor, Debenture Issuer and Common Securities Holder
By:
----------------------------------------------
Dale J. Wolf, Vice President-Finance,
Secretary and Treasurer
The Chase Manhattan Bank
as Property Trustee
By:
----------------------------------------------
Chase Manhattan Bank Delaware,
as Delaware Trustee
By:
----------------------------------------------
Name:
Title:
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----------------------------------------------
Dale J. Wolf, as Regular Trustee
----------------------------------------------
Ellen E. Fairchild, as Regular Trustee
----------------------------------------------
Kenneth C. Jones, as Regular Trustee
64
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EXHIBIT A
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL SECURITY, INSERT THE
FOLLOWING: This Preferred Security is a Global Security within the meaning of
the Amended and Restated Declaration of UCU CAPITAL TRUST I hereinafter referred
to and is registered in the name of The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration, and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered, except
in limited circumstances.
Unless this Preferred Security Certificate is presented by an authorized
representative of the Depositary to the issuer or its agent for registration of
transfer, exchange or payment, and any Preferred Security Certificate issued is
registered in the name of Cede & Co. or such other name as registered by an
authorized representative of the Depositary (and any payment hereon is made to
CEDE & CO. or to such other entity as is requested by an authorized
representative of the Depositary), and except as otherwise provided in the
Amended and Restated Declaration of UCU CAPITAL TRUST I dated September _____,
1999, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL, since the registered owner hereof, CEDE & CO., has an
interest herein.]
Certificate No._____ Number of Preferred Securities:_____
CUSIP No.___________
Certificate Evidencing Preferred Securities
of
UCU Capital Trust I
Preferred Securities
(liquidation amount $25 per Preferred Security)
UCU Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the
"Holder") is the registered owner of_______preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in the Declaration (as defined below). The
designation rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and
shall in all respect be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of__________, 1999 (as the same
may be amended from time to time (the "Declaration"), among UtiliCorp United
Inc., as Sponsor, Dale J. Wolf, Ellen E. Fairchild and Kenneth C. Jones, as
Regular Trustees, The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as
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Delaware Trustee, and the holders from time to time, of undivided beneficial
ownership interests in the assets of the Trust. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Guarantee Agreement, dated as
of September _____, 1999, as the same may be amended from time to time, of
UtiliCorp United Inc., in respect of the Preferred Securities. The Sponsor
will provide a copy of the Declaration, the Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal
place of business.
Upon receipt of this certificate, the Holder is bound by the terms of the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income tax
purposes, the Debentures as indebtedness of the Sponsor and the Preferred
Securities as evidence of undivided indirect beneficial ownership interests in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this_______day
of__________, 1999.
UCU CAPITAL TRUST I
-------------------------------------
By:
----------------------------------
Regular Trustee
This is one of the Securities referred to in the within-mentioned
Declaration.
The Chase Manhattan Bank
-------------------------------------
By:
----------------------------------
Senior Trust Officer
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EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN
THE DECLARATION (AS DEFINED BELOW)
Certificate No.______ Number of Common Securities: _______
Certificate Evidencing Common Securities
of
UCU Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
UCU Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
_________________________ (the "Holder") is the registered owner of
_________________ common securities of the Trust representing an undivided
beneficial interest in the assets of the Trust designated the Common
Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). Except as provided in the Declaration (as defined below), the
Common Securities are not transferable, and any attempted transfer thereof
shall be void. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust,
dated as of September ____, 1999 (as the same may be amended from time to
time, the "Declaration"), among UtiliCorp United Inc., as Sponsor, Dale J.
Wolf, Ellen E. Fairchild and Kenneth C. Jones, as Regular Trustees, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, and the holders, from time to time, of undivided beneficial
ownership interests in the assets of the Trust. The Holder is entitled to the
benefits of the Guarantee Agreement, dated as of ___________ ___, 1999, of
UtiliCorp United Inc., as the same may be amended from time to time, in
respect of the Common Securities. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to the Holder without charge
upon written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the terms of the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness of the Sponsor and the Common
Securities as evidence of an undivided indirect beneficial ownership interest in
the Debentures.
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IN WITNESS WHEREOF, the Trust has executed this certificate this ______ day
of ______________________, 1999.
UCU Capital Trust I
------------------------------------
By:
---------------------------------
Regular Trustee
This is one of the Securities referred to in the within-mentioned
Declaration.
The Chase Manhattan Bank
------------------------------------
By:
---------------------------------
Senior Trust Officer
2
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EXHIBIT 4(m)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UTILICORP UNITED INC.
And
THE CHASE MANHATTAN BANK,
As Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT
Dated as of September ____, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
RECITALS ...........................................................1
ARTICLE I. Definitions and Other Provisions of General Applications.......1
Section 1.1. Definitions....................................................1
Section 1.2. Compliance Certificates and Opinions..........................12
Section 1.3. Form of Documents Delivered to Purchase Contract Agent........12
Section 1.4. Acts of Holders; Record Dates.................................13
Section 1.5. Notices.......................................................14
Section 1.6. Notice to Holders; Waiver.....................................15
Section 1.7. Effect of Headings and Table of Contents......................15
Section 1.8. Successors and Assigns........................................16
Section 1.9. Separability Clause...........................................16
Section 1.10. Benefits of Agreement........................................16
Section 1.11. Governing Law................................................16
Section 1.12. Legal Holidays...............................................16
Section 1.13. Counterparts.................................................16
Section 1.14. Inspection of Agreement......................................17
ARTICLE II. Certificate Forms.................................................17
Section 2.1. Forms of Certificates Generally...............................17
Section 2.2. Form of Purchase Contract Agent's Certificate of
Authentication.............................................................18
ARTICLE III. The Securities...................................................18
Section 3.1. Amount; Form and Denominations................................18
Section 3.2. Rights and Obligations Evidenced by the Certificates..........19
Section 3.3. Execution, Authentication, Delivery and Dating................20
Section 3.4. Temporary Certificates........................................20
Section 3.5. Registration; Registration of Transfer and Exchange...........21
Section 3.6. Book-Entry Interests..........................................22
Section 3.7. Notices to Holders............................................23
Section 3.8. Appointment of Successor Clearing Agency......................23
Section 3.9. Definitive Certificates.......................................23
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates...........23
Section 3.11. Persons Deemed Owners........................................25
Section 3.12. Cancellation.................................................25
Section 3.13. Creation of Treasury PEPS Units by Substitution of Treasury
Securities.................................................................26
Section 3.14. Reestablishment of PEPS Units................................27
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event..28
Section 3.16. No Consent to Assumption.....................................29
ARTICLE IV. The Preferred Securities..........................................29
i
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<S> <C>
Section 4.1. Interest Payments; Rights to Interest Payments Preserved......29
Section 4.2. Notice and Voting.............................................30
Section 4.3. Distribution of Debentures; Tax Event Redemption..............31
ARTICLE V. The Purchase Contracts.............................................32
Section 5.1. Purchase of Shares of Common Stock............................32
Section 5.2. Purchase Contract Payments....................................34
Section 5.3. Deferral of Purchase Contract Payments........................35
Section 5.4. Payment of Purchase Price.....................................35
Section 5.5. Issuance of Shares of Common Stock............................40
Section 5.6. Adjustment of Settlement Rate.................................40
Section 5.7. Notice of Adjustments and Certain Other Events................47
Section 5.8. Termination Event; Notice.....................................47
Section 5.9. Early Settlement..............................................48
Section 5.10. Intentionally Omitted........................................50
Section 5.11. No Fractional Shares.........................................50
Section 5.12. Charges and Taxes............................................50
ARTICLE VI. Remedies..........................................................50
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract
Payments and to Purchase Shares of Common Stock............................50
Section 6.2. Restoration of Rights and Remedies............................51
Section 6.3. Rights and Remedies Cumulative................................51
Section 6.4. Delay or Omission Not Waiver..................................51
Section 6.5. Undertaking for Costs.........................................51
Section 6.6. Waiver of Stay or Extension Laws..............................52
ARTICLE VII The Purchase Contract Agent.......................................52
Section 7.1. Certain Duties and Responsibilities...........................52
Section 7.2. Notice of Default.............................................53
Section 7.3. Certain Rights of Purchase Contract Agent.....................53
Section 7.4. Not Responsible for Recitals or Issuance of Securities........55
Section 7.5. May Hold Securities...........................................55
Section 7.6. Money Held in Custody.........................................55
Section 7.7. Compensation and Reimbursement................................55
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.......56
Section 7.9. Resignation and Removal; Appointment of Successor.............56
Section 7.10. Acceptance of Appointment by Successor.......................57
Section 7.11. Merger, Conversion, Consolidation or Succession to Business..58
Section 7.12. Preservation of Information; Communications to Holders.......58
Section 7.13. No Obligations of Purchase Contract Agent....................58
Section 7.14. Tax Compliance...............................................59
ARTICLE VIII Supplemental Agreements..........................................59
Section 8.1. Supplemental Agreements Without Consent of Holders............59
Section 8.2. Supplemental Agreements With Consent of Holders...............60
Section 8.3. Execution of Supplemental Agreements..........................61
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<S> <C>
Section 8.4. Effect of Supplemental Agreements.............................61
Section 8.5. Reference to Supplemental Agreements..........................61
ARTICLE IX. Merger, Consolidation, Share exchange, Sale or Conveyance........62
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange,
Sell or Convey Property Except Under Certain Conditions....................62
Section 9.2. Rights and Duties of Successor Corporation....................62
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase
Contract Agent.............................................................63
ARTICLE X Covenants...........................................................63
Section 10.1. Performance Under Purchase Contracts.........................63
Section 10.2. Maintenance of Office or Agency..............................63
Section 10.3. Company to Reserve Common Stock..............................64
Section 10.4. Covenants as to Common Stock.................................64
Section 10.5. Statements of Officers of the Company as to Default..........64
Section 10.6. ERISA........................................................64
EXHIBIT A FORM OF PEPS UNITS CERTIFICATE...............................1
EXHIBIT B FORM OF TREASURY PEPS UNITS CERTIFICATE......................1
EXHIBIT C INSTRUCTION TO PURCHASE CONTRACT AGENT.......................1
EXHIBIT D NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS...............1
EXHIBIT E NOTICE TO SETTLE BY CASH.....................................1
EXHIBIT F NOTICE FROM PURCHASE CONTRACT AGENT TO COLLATERAL
AGENT AND SENIOR TRUSTEE.....................................1
</TABLE>
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PURCHASE CONTRACT AGREEMENT, dated as of September ____, 1999, between
UTILICORP UNITED INC., a Delaware corporation (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking association, acting as purchase contract
agent for the Holders of Securities from time to time (the "Purchase Contract
Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the Certificates
are executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Purchase Contract Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute these presents a valid
agreement of the Company, in accordance with its terms, have been done. For and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular, and nouns and
pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in the
Declaration: (i) Applicable Ownership Interest; (ii) Applicable Principal
Amount; (iii) Authorized Newspaper; (iv) Guarantee; (v) Primary Treasury Dealer;
(vi) Pro Rata, (vii) Quotation Agent; (viii) Redemption Amount; (ix) Redemption
Price; (x) Remarketing, (xi) Remarketing Settlement Date, (xii) Reset Rate,
(xiii) Scheduled Remarketing Settlement Date, (xiv) Tax Event Redemption, (xv)
Tax Event Redemption Date; (xvi) Two-Year Benchmark Treasury Rate; (xvii)
Treasury Consideration, (xviii) Treasury Portfolio; and (xix) Treasury Portfolio
Purchase Price; and
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(e) the following terms have the meanings given to them in this Section
1.1(e):
"Act" has the meaning, with respect to any Holder, set forth in Section
1.4.
"Adjusted Contract Adjustment Payment Rate," with respect to any Reset
Transaction, means the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company or its successor
as the rate at which Contract Adjustment Payments should accrue so that the fair
market value, expressed in dollars, of a PEPS Unit immediately after the later
of (i) public announcement of such Reset Transaction or (ii) public announcement
of a change in dividend policy in connection with such Reset Transaction will
equal the average Trading Price of a PEPS Unit for the 40 Trading Days
immediately preceding the date of public announcement of such Reset Transaction;
provided that the Adjusted Contract Adjustment Payment Rate shall not be less
than ____% per annum.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning set forth in Section 5.1.
"Applicants" has the meaning set forth in Section 7.12(b).
"Bankruptcy Code" means title 11 of the United States Code, or any other
law of the United States that from time to time provides a uniform system of
bankruptcy laws.
"Beneficial Owner" means, with respect to a Global Certificate, a Person
who is the beneficial owner of such Book-Entry Interest as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Board of Directors" means the board of directors of the Company or a duly
authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of Directors,
a copy of which has been certified by the Secretary or an Assistant Secretary of
the Company, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the
Purchase Contract Agent.
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"Book-Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Indenture Trustee or the
Property Trustee is closed for business; provided that for purposes of the
second paragraph of Section 1.12 only, the term "Business Day" shall also be
deemed to exclude any day on which trading on the New York Stock Exchange, Inc.
is closed or suspended.
"Cash Settlement" has the meaning set forth in Section 5.4(a)(i).
"Certificate" means a PEPS Units Certificate or a Treasury PEPS Units
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as a depositary for
the Securities and in whose name, or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Collateral Account" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Collateral Agent" means The Chase Manhattan Bank, as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Collateral Substitution" has the meaning set forth in Section 3.13.
"Common Stock" means the UtiliCorp United Inc. common stock, par value
$1.00 per share.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such pursuant to the
applicable provision of this Agreement, and thereafter "Company" shall mean such
successor.
"Constituent Person" has the meaning set forth in Section 5.6(b).
3
<PAGE>
"Convertible Securities" has the meaning set forth in Section __ of Article
__ of the Restated Articles of Incorporation of the Company.
"Corporate Trust Office" means the principal corporate trust office of the
Purchase Contract Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
The Chase Manhattan Bank, ___________________, Attention: _______________.
"Coupon Rate" means the percentage rate per annum at which each Debenture
will bear interest initially.
"Contract Adjustment Payments" means, (a) if a Reset Transaction has not
occurred, the fee payable by the Company in respect of each Purchase
Contract, equal to ___% per annum of the Stated Amount, or (b) following the
occurrence of a Reset Transaction, the Adjusted Contract Adjustment Payment
Rate related to such Reset Transaction until any succeeding Reset Transaction
shall occur, computed (i) for any full quarterly period on the basis of a
360-day year of twelve 30-day months and (ii) for any period shorter than a
full quarterly period for which such payments are calculated, on the basis of
a 30-day month and, for periods of less than a month, the actual number of
days elapsed per 30-day month.
"Current Market Price" has the meaning set forth in Section 5.6(a)(8).
"Debentures" means the series of subordinated debentures issued by the
Company under the Indenture and held by the Property Trustee.
"Declaration" means the Amended and Restated Declaration of Trust of UCU
Capital Trust I, dated as of September ____, 1999, among the Company as sponsor,
the trustees named therein and the holders from time to time of individual
beneficial interests in the assets of the Trust.
"Depositary" means DTC until another Clearing Agency becomes its successor.
"Disposition" has the meaning set forth in Section 5.10(a)(i).
"Dividend Yield," on any security for any period, means the dividends paid
or proposed to be paid pursuant to an announced dividend policy on such security
for such period divided by, if with respect to dividends paid on such security,
the average Closing Price of such security during such period and, if with
respect to dividends so proposed to be paid on such security, the Closing Price
of such security on the effective date of the related Reset Transaction.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning set forth in Section 5.9(a).
"Early Settlement Amount" has the meaning set forth in Section 5.9(a).
"Early Settlement Date" has the meaning set forth in Section 5.9(a).
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<PAGE>
"Early Settlement Rate" has the meaning set forth in Section 5.9(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Expiration Date" has the meaning set forth in Section 1.4(e).
"Extension Period" has the meaning set forth in Section 4.2.
"Expiration Time" has the meaning set forth in Section 5.6(a)(6).
"Failed Remarketing" has the meaning set forth in Section 5.4(b).
"Global Certificate" means a Certificate that evidences all or part of the
Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Holder" means, with respect to a Security, the Person in whose name the
Security evidenced by a PEPS Units Certificate or a Treasury PEPS Units
Certificate is registered in the related PEPS Units Register or the Treasury
PEPS Units Register, as the case may be; provided, however, that in determining
whether the Holders of the requisite number of PEPS Units or Treasury PEPS Units
have voted on any matter, then for the purpose of such determination only (and
not for any other purpose hereunder), if the Security remains in the form of one
or more Global Certificates and if the Clearing Agency which is the holder of
such Global Certificate has sent an omnibus proxy assigning voting rights to the
Clearing Agency Participants to whose accounts the Securities are credited on
the record date, the term "Holder" shall mean such Clearing Agency Participant
acting at the direction of the Beneficial Owners.
"Indenture" means the Indenture, dated as of September ____, 1999, between
the Company and the Indenture Trustee (including any provisions of the TIA that
are deemed incorporated therein), pursuant to which the Debentures will be
issued.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, as trustee under the Indenture, or any successor thereto.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Company by its Chairman of the Board, its President or one of
its Vice Presidents, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Purchase Contract Agent.
"Non-electing share" has the meaning set forth in Section 5.6(b).
"NYSE" has the meaning set forth in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, its President or one of its Vice Presidents, and by the Treasurer, an
Assistant Treasurer, the
5
<PAGE>
Secretary or an Assistant Secretary of the Company, and delivered to the
Purchase Contract Agent. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Agreement shall
include:
(i) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(iii) 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
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Company (and who may be an employee of the Company), and who shall be
reasonably acceptable to the Purchase Contract Agent. An opinion of counsel may
rely on certificates as to matters of fact.
"Outstanding Securities" means, with respect to any PEPS Units or Treasury
PEPS Units and as of the date of determination, all PEPS Units or Treasury PEPS
Units evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) If a Termination Event has occurred, (i) Treasury PEPS Units
and (ii) PEPS Units for which the underlying Senior Deferrable Notes have
been theretofore deposited with the Purchase Contract Agent in trust for
the Holders of such PEPS Units;
(ii) PEPS Units and Treasury PEPS Units evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled pursuant to
the provisions of this Agreement; and
(iii) PEPS Units and Treasury PEPS Units evidenced by Certificates
in exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant to
this Agreement, other than any such Certificate in respect of which there
shall have been presented to the Purchase Contract Agent proof satisfactory
to it that such Certificate is held by a bona fide purchaser in whose hands
the PEPS Units or Treasury PEPS Units evidenced by such Certificate are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the PEPS Units or Treasury PEPS Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, PEPS Units or
Treasury PEPS Units owned by the Company or any
6
<PAGE>
Affiliate of the Company shall be disregarded and deemed not to be
Outstanding Securities, except that, in determining whether the Purchase
Contract Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only PEPS Units or
Treasury PEPS Units which a Responsible Officer of the Purchase Contract
Agent knows to be so owned shall be so disregarded. PEPS Units or Treasury
PEPS Units so owned which have been pledged in good faith may be regarded as
Outstanding Securities if the pledgee establishes to the satisfaction of the
Purchase Contract Agent the pledgee's right so to act with respect to such
PEPS Units or Treasury PEPS Units and that the pledgee is not the Company or
any Affiliate of the Company.
"Payment Date" means each ___________, ____, ___________, ____,
__________ ___ and ____________ ___, commencing _____________ ____, 1999.
"Permitted Investments" has the meaning set forth in Section 1 of the
Pledge Agreement.
"PEPS Unit" means the collective rights and obligations of a Holder of a
PEPS Units Certificate in respect of a Preferred Security, the Debentures or an
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, subject in each case to the Pledge thereof, and the related Purchase
Contract; provided, that the appropriate Applicable Ownership Interest (as
specified in clause (B) of the definition of such term) of the Treasury
Portfolio shall not be subject to the Pledge.
"PEPS Units Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of PEPS Units specified on such
certificate.
"PEPS Units Register" and "PEPS Units Registrar" have the respective
meanings set forth in Section 3.5.
"Permitted Investments" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"Plan" means an employee benefit plan that is subject to ERISA, a plan or
individual retirement account that is subject to Section 4975 of the Code or any
entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the Preferred
Securities, the Debentures, the Treasury Securities or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, in each case constituting a part of the
Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of September ____,
1999, among the Company, the Collateral Agent, the Securities Intermediary and
the Purchase Contract Agent, on its own behalf and as attorney-in-fact for the
Holders from time to time of the Securities.
7
<PAGE>
"Pledged Debentures" has the meaning set forth in the Pledge Agreement.
"Pledged Preferred Securities" has the meaning set forth in the Pledge
Agreement.
"Predecessor Certificate" means a Predecessor PEPS Units Certificate or a
Predecessor Treasury PEPS Units Certificate.
"Predecessor PEPS Units Certificate" of any particular PEPS Units
Certificate means every previous PEPS Units Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
PEPS Units evidenced thereby; and, for the purposes of this definition, any PEPS
Units Certificate authenticated and delivered under Section 3.10 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen PEPS Units Certificate
shall be deemed to evidence the same rights and obligations of the Company and
the Holder as the mutilated, destroyed, lost or stolen PEPS Units Certificate.
"Predecessor Treasury PEPS Units Certificate" of any particular Treasury
PEPS Units Certificate means every previous Treasury PEPS Units Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Treasury PEPS Units evidenced thereby; and, for the purposes of
this definition, any Treasury PEPS Units Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Treasury PEPS Units Certificate shall be deemed to evidence the same
rights and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Treasury PEPS Units Certificate.
"Preferred Securities" means the Preferred Securities of the Trust, each
having a stated liquidation amount of $25, representing preferred undivided
beneficial interests in the assets of the Trust.
"Proceeds" has the meaning set forth in Section 1 of the Pledge Agreement.
"Property Trustee" means The Chase Manhattan Bank, as property trustee
under the Declaration, or any successors thereto that is a financial institution
unaffiliated with the Company.
"Purchase Contract" means, with respect to any Security, the contract
forming a part of such Security and obligating the Company to (i) sell, and the
Holder of such Security to purchase, shares of Common Stock and (ii) pay the
Holder Purchase Contract Payments on the terms and subject to the conditions set
forth in Article Five hereof.
"Purchase Contract Agent" means the Person named as the "Purchase Contract
Agent" in the first paragraph of this Agreement until a successor Purchase
Contract Agent shall have become such pursuant to the applicable provisions of
this Agreement, and thereafter "Purchase Contract Agent" shall mean such Person.
"Purchase Contract Payments" means the payments payable by the Company on
the Payment Dates in respect of each Purchase Contract, equal to ____% per annum
of the Stated Amount.
8
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"Purchase Contract Settlement Date" means ______________.
"Purchase Contract Settlement Fund" has the meaning set forth in Section
5.5.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section 5.6(a)(6).
"Record Date" for the Purchase Contract Payments payable on any Payment
Date means, as to any Global Certificate, the Business Day next preceding such
Payment Date, and as to any other Certificate, the fifteenth Business Day prior
to such Payment Date.
"Redemption" has the meaning set forth in Section 5.10(a)(i).
"Redemption Date" has the meaning set forth in Section 5.10(a)(i).
"Reference Dealer" means a dealer engaged in trading of convertible
securities.
"Reference Price" has the meaning set forth in Section 5.1.
"Register" means the PEPS Units Register and the Treasury PEPS Units
Register.
"Registrar" means the PEPS Units Registrar and the Treasury PEPS Units
Registrar.
"Remarketing Agent" has the meaning set forth in Section 5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated as of
September ____, 1999, between the Company and the Remarketing Agent.
"Reorganization Event" has the meaning set forth in Section 5.6(b).
"Reset Transaction" means a merger, consolidation or statutory share
exchange to which the Person that is the issuer of the common stock for which
the Purchase Contracts are then to be settled is a party, a sale of all or
substantially all assets of such Person, a recapitalization of such common stock
or a distribution described in Section 5.6(a)(4) by such Person, after the
effective date of which the Purchase Contracts are then to be settled for shares
of a Person (i) the common stock of which had a Dividend Yield for the four
fiscal quarters immediately preceding the public announcement thereof which was,
or (ii) that announces a dividend policy prior to the effective date thereof
which policy, if implemented, would result in a Dividend Yield on such common
stock for the next four fiscal quarters which would be, more than 250 basis
points higher than the Dividend Yield on the common stock for which the Purchase
Contracts are to be settled prior to such effective date for the four fiscal
quarters immediately preceding such public announcement.
"Responsible Officer" means, with respect to the Purchase Contract Agent,
any officer of the Purchase Contract Agent assigned by the Purchase Contract
Agent to administer its corporate trust matters.
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"Round Lot Payment" means the least amount of cash, if any, payable by the
Company, which when added to the proceeds from the Remarketing would cause such
amount to be an integral multiple of $1,000.
"Securities Intermediary" means The First National Bank of Chicago, as
Securities Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Security" means a PEPS Unit or a Treasury PEPS Unit, as the case may be.
"Settlement Rate" has the meaning set forth in Section 5.1.
"Stated Amount" means $25.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events:
(i) at any time on or prior to the Purchase Contract Settlement
Date, a judgment, decree or court order shall have been entered granting
relief under the Bankruptcy Code, adjudicating the Company to be insolvent,
or approving as properly filed a petition seeking reorganization or
liquidation of the Company or any other similar applicable Federal or State
law, and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such decree
or order shall have continued undischarged and unstayed for a period of 60
days;
(ii) a judgment, decree or court order for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the termination or liquidation of
its affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(iii) at any time on or prior to the Purchase Contract Settlement
Date, the Company shall file a petition for relief under the Bankruptcy
Code, or shall consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking reorganization or
liquidation under the Bankruptcy Code or any other similar applicable
Federal or State law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning set forth in Section 5.1.
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"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
or any successor legislation.
"Trading Day" has the meaning set forth in Section 5.1.
"Trading Price" of a security on any date of determination means (i) the
closing sale price (or, if no closing price is reported, the last reported sale
price) of a security (regular way) on the NYSE on such date, (ii) if such
security is not listed for trading on the NYSE on any such date, the closing
sale price as reported in the composite transactions for the principal United
States securities exchange on which such security is so listed, (iii) if such
security is not so listed on a United States national or regional securities
exchange, the closing sale price as reported by the NASDAQ Stock Market, Inc.
(iv) if such security is not so reported, the price quoted by Interactive Data
Corporation for such security or, if Interactive Data Corporation is not quoting
such price, a similar quotation service selected by the Company, (v) if such
security is not so quoted, the average of the mid-point of the last bid and ask
prices for such security from at least two dealers recognized as market-makers
for such security, or (vi) if such security is not so quoted, the average of the
last bid and ask prices for such security from a Reference Dealer.
"Treasury PEPS Unit" means, following the substitution of Treasury
Securities for Preferred Securities or Debentures as collateral to secure a
Holder's obligations under the Purchase Contract, the collective rights and
obligations of a Holder of a Treasury PEPS Units Certificate in respect of such
Treasury Securities, subject to the Pledge thereof, and the related Purchase
Contract.
"Treasury PEPS Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Treasury PEPS Units
specified on such certificate.
"Treasury PEPS Units Register" and "Treasury PEPS Units Registrar" have the
respective meanings set forth in Section 3.5.
"Treasury Securities" means zero-coupon U.S. Treasury Securities (Cusip No.
___________) which are the principal strip of the ____% U.S. Treasury Securities
which mature on _________________.
"Trust" means UCU Capital Trust I, a statutory business that formed under
the laws of the State of Delaware, or any successor thereto by merger or
consolidation.
"Underwriting Agreement" means the Underwriting Agreement, dated
_____________, 1999, between the Company and ___________________.
____________________, and ____________________.
"Vice President" means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
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Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Purchase Contract Agent to take any
action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and, if requested by the Purchase
Contract Agent, an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Agreement
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Purchase Contract Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Purchase
Contract Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Purchase
Contract Agent and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Purchase Contract
Agent deems sufficient.
(c) The ownership of Securities shall be proved by the PEPS Units Register
or the Treasury PEPS Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Certificate shall bind every future Holder of
the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Purchase
Contract Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph,
the Holders of the Outstanding PEPS Units and the Outstanding Treasury PEPS
Units, as the case may be, on such record date, and no other Holders, shall be
entitled to take the relevant action with respect to the PEPS Units or the
Treasury PEPS Units, as the case may be, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken prior to or on the applicable Expiration Date by Holders
of the requisite number of Outstanding Securities on such record date. Nothing
contained in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and be of no
effect), and nothing contained in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite number of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph,
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the Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Purchase Contract Agent in writing and to each Holder of Securities in
the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the Company
may designate any date as the "Expiration Date" and from time to time may change
the Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given to
the Purchase Contract Agent in writing, and to each Holder of Securities in the
manner set forth in Section 1.6, prior to or on the existing Expiration Date. If
an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Section 1.5. Notices.
Any notice or communication is duly given if in writing and delivered in
Person or mailed by first-class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Purchase Contract Agent only upon receipt thereof:
If to the Purchase Contract Agent:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001-2697
Telecopier No.: (212) 946-8154
Attention: Corporate Trust Department
If to the Company:
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Telecopier No.: (816) 421-3591
Attention:
If to the Collateral Agent:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Telecopier No.: (312) 407-1708
Attention: Global Corporate Trust Services
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If to the Property Trustee:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Telecopier No.: (212) 946-8159
Attention:
If to the Indenture Trustee:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Telecopier No.: (212) 946-8159
Attention:
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Purchase Contract Agent, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Purchase Contract Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall bind
its successors and assigns, whether so expressed or not.
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Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day,
notwithstanding any other provision of this Agreement or the PEPS Units
Certificates or the Treasury PEPS Units Certificates, Purchase Contract Payments
shall not be made on such date, but shall be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date,
provided that no interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Payment Date, except that, if such
next succeeding Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with the same
force and effect as if made on such Payment Date.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, notwithstanding any other provision of this Agreement, the PEPS
Units Certificates or the Treasury PEPS Units Certificates, the Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by the parties
hereto on separate counterparts, each of which, when so executed and delivered,
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times during
normal business hours at the Corporate Trust Office for inspection by any Holder
or Beneficial Owner.
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ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.
The PEPS Units Certificates (including the form of Purchase Contract
forming part of each PEPS Unit evidenced thereby) shall be in substantially
the form set forth in Exhibit A hereto, with such letters, numbers or other
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of
any securities exchange on which the PEPS Units are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of
the Company executing such PEPS Units Certificates, as evidenced by their
execution of the PEPS Units Certificates.
The definitive PEPS Units Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing the PEPS Units
evidenced by such PEPS Units Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.
The Treasury PEPS Units Certificates (including the form of Purchase
Contract forming part of each Treasury PEPS Unit evidenced thereby) shall be
in substantially the form set forth in Exhibit B hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Treasury PEPS Units may be
listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Treasury PEPS Units
Certificates, as evidenced by their execution of the Treasury PEPS Units
Certificates.
The definitive Treasury PEPS Units Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Treasury PEPS Units evidenced by such Treasury PEPS Units Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE
IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO
TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A
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WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.
The form of the Purchase Contract Agent's certificate of authentication
of the PEPS Units shall be in substantially the form set forth on the form of
the PEPS Units Certificates.
The form of the Purchase Contract Agent's certificate of authentication
of the Treasury PEPS Units shall be in substantially the form set forth on
the form of the Treasury PEPS Units Certificates.
ARTICLE III
The Securities
Section 3.1. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to ______________ (including ______________ relating to the
Underwriters' over-allotment option), except for Certificates authenticated,
executed and delivered upon registration of transfer of, in exchange for, or
in lieu of, other Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13,
3.14, 5.9 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single PEPS Unit or Treasury PEPS Unit and any integral
multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each PEPS Units Certificate shall evidence the number of PEPS Units
specified therein, with each such PEPS Unit representing (1) the ownership by
the Holder thereof of a beneficial interest in a Preferred Security, a
Debenture or the Applicable Ownership Interest of the Treasury
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Portfolio, as the case may be, subject to the Pledge of such Preferred
Security, such Debenture or the Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, by such Holder pursuant to the Pledge Agreement, and (2) the
rights and obligations of the Holder thereof and the Company under one
Purchase Contract. The Purchase Contract Agent as attorney-in-fact for, and
on behalf of, the Holder of each PEPS Unit shall pledge, pursuant to the
Pledge Agreement, the Preferred Security, the Debenture or the Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as the case may be, forming a part of such
PEPS Unit, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title and interest of such Holder in such
Preferred Security, such Debenture or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, for the benefit of the Company, to secure the
obligation of the Holder under each Purchase Contract to purchase shares of
Common Stock. Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contracts shall not entitle the Holder of a
PEPS Units Certificate to any of the rights of a holder of shares of Common
Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as a
shareholder in respect of the meetings of shareholders or for the election of
directors of the Company or for any other matter, or any other rights
whatsoever as a shareholder of the Company.
Upon the formation of a Treasury PEPS Unit pursuant to Section 3.13,
each Treasury PEPS Units Certificate shall evidence the number of Treasury
PEPS Units specified therein, with each such Treasury PEPS Unit representing
(1) the ownership by the Holder thereof of a 1/40 undivided beneficial
interest in a Treasury Security with a principal amount equal to $1,000,
subject to the Pledge of such Treasury Security by such Holder pursuant to
the Pledge Agreement, and (2) the rights and obligations of the Holder
thereof and the Company under one Purchase Contract. Prior to the purchase
of shares of Common Stock under each Purchase Contract, such Purchase
Contracts shall not entitle the Holder of a Treasury PEPS Units Certificate
to any of the rights of a holder of shares of Common Stock, including,
without limitation, the right to vote or receive any dividends or other
payments or to consent or to receive notice as a shareholder in respect of
the meetings of shareholders or for the election of directors of the Company
or for any other matter, or any other rights whatsoever as a shareholder of
the Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon the
execution and delivery of this Agreement, and at any time and from time to
time thereafter, the Company may deliver Certificates executed by the Company
to the Purchase Contract Agent for authentication, execution on behalf of the
Holders and delivery, together with its Issuer Order for authentication of
such Certificates, and the Purchase Contract Agent in accordance with such
Issuer Order shall authenticate, execute on behalf of the Holders and deliver
such Certificates.
The Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any of these officers on the Certificates may be manual or
facsimile.
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Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until
such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized signatory of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized signatory of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contracts evidenced by such
Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Purchase
Contract Agent by manual signature, and such certificate upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate
has been duly authenticated and delivered hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Certificates, temporary Certificates which are in
substantially the form set forth in Exhibit A or Exhibit B hereto, as the
case may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or
engraved thereon as may be required by the rules of any securities exchange
on which the PEPS Units or Treasury PEPS Units, as the case may be, are
listed, or as may, consistently herewith, be determined by the officers of
the Company executing such Certificates, as evidenced by their execution of
the Certificates.
If temporary Certificates are issued, the Company will cause definitive
Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Certificates, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, one or
more definitive Certificates of like tenor and denominations and evidencing a
like number of PEPS Units or Treasury PEPS Units, as the case may be, as the
temporary Certificate or Certificates so surrendered. Until so exchanged,
the temporary Certificates shall in all respects evidence the same benefits
and the same obligations with respect to the PEPS Units or Treasury PEPS
Units, as the case may be, evidenced thereby as definitive Certificates.
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Section 3.5. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust Office a
register (the "PEPS Units Register") in which, subject to such reasonable
regulations as it may prescribe, the Purchase Contract Agent shall provide
for the registration of PEPS Units Certificates and of transfers of PEPS
Units Certificates (the Purchase Contract Agent, in such capacity, the "PEPS
Units Registrar") and a register (the "Treasury PEPS Units Register") in
which, subject to such reasonable regulations as it may prescribe, the
Purchase Contract Agent shall provide for the registration of the Treasury
PEPS Units Certificates and of transfers of Treasury PEPS Units Certificates
(the Purchase Contract Agent, in such capacity, the "Treasury PEPS Units
Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute
on behalf of the designated transferee or transferees, and deliver, in the
name of the designated transferee or transferees, one or more new
Certificates of any authorized denominations, like tenor, and evidencing a
like number of PEPS Units or Treasury PEPS Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
PEPS Units or Treasury PEPS Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange of
a Certificate shall evidence the ownership of the same number of PEPS Units
or Treasury PEPS Units, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the
PEPS Units or Treasury PEPS Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Purchase Contract Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Purchase Contract Agent
may require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than any
exchanges pursuant to Sections 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder
and deliver any Certificate in exchange for any
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other Certificate presented or surrendered for registration of transfer or
for exchange on or after the Business Day immediately preceding the earlier
of the Purchase Contract Settlement Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable conditions
specified above in this Section and receipt of appropriate registration or
transfer instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date has occurred, deliver
the shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such other Certificate; or
(ii) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Senior Deferrable Notes or the
Treasury Securities, as the case may be, evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Certificates, to be delivered to the
Depositary by, or on behalf of, the Company. Such Global Certificate shall
initially be registered on the books and records of the Company in the name
of Cede & Co., the nominee of the Depositary, and no Beneficial Owner will
receive a definitive Certificate representing such Beneficial Owner's
interest in such Global Certificate, except as provided in Section 3.9. The
Purchase Contract Agent shall enter into an agreement with the Depositary if
so requested by the Company. Unless and until definitive, fully registered
Certificates have been issued to Beneficial Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.6 shall be in full force and
effect;
(ii) the Company shall be entitled to deal with the Clearing Agency
for all purposes of this Agreement (including making Purchase Contract
Payments and receiving approvals, votes or consents hereunder) as the
Holder of the Securities and the sole holder of the Global Certificates and
shall have no obligation to the Beneficial Owners;
(iii)to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement, the provisions of
this Section 3.6 shall control; and
(iv) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
or the Clearing Agency Participants.
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is required to
be given under this Agreement, the Company or the Company's agent shall give
such notices and
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communications to the Holders and, with respect to any Securities registered
in the name of a Clearing Agency or the nominee of a Clearing Agency, the
Company or the Company's agent shall, except as set forth herein, have no
obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the
Securities.
Section 3.9. Definitive Certificates.
If:
(i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 3.8; or
(ii) there shall have occurred and be continuing a default by the
Company in respect of its obligations under one or more Purchase Contracts,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company
shall cause definitive Certificates to be delivered to Beneficial Owners in
accordance with the instructions of the Clearing Agency. The Company shall
not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be protected in relying on, such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase Contract
Agent, the Company shall execute and deliver to the Purchase Contract Agent,
and the Purchase Contract Agent shall authenticate, execute on behalf of the
Holder, and deliver in exchange therefor, a new Certificate, evidencing the
same number of PEPS Units or Treasury PEPS Units, as the case may be, and
bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase Contract
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Certificate, and (ii) such security or indemnity as may be required by
them to hold each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Purchase Contract Agent that such
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holder, and deliver to the
Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of PEPS Units or Treasury PEPS Units,
as the case may be, and bearing a Certificate number not contemporaneously
outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the
Holder, and deliver to the Holder, a Certificate on or after
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the Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above
in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date has occurred, deliver
the shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such Certificate; or
(ii) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Preferred Security, the Debenture or
the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio or the Treasury
Securities, as the case may be, evidenced thereby, in each case subject to
the applicable conditions and in accordance with the applicable provisions
of Article Five hereof.
Upon the issuance of any new Certificate under this Section, the Company
and the Purchase Contract Agent may require the payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be
subject to all the obligations of this Agreement equally and proportionately
with any and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude, to the
extent lawful, all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer,
the Company and the Purchase Contract Agent, and any agent of the Company or
the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the PEPS Units or Treasury PEPS
Units evidenced thereby, for the purpose of receiving distributions on the
Preferred Securities, the Debentures, or on the maturing quarterly interest
strips of the Treasury Portfolio, as applicable, receiving Purchase Contract
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any distributions on the Preferred Securities, the
Debentures, or Treasury Portfolio, as applicable, or Purchase Contract
Payments payable in respect of the Purchase Contracts constituting a part of
the PEPS Units or Treasury PEPS Units evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Purchase Contract Agent, nor any agent of the Company or the Purchase
Contract Agent, shall be affected by notice to the contrary.
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Notwithstanding the foregoing, with respect to any Global Certificate,
nothing contained herein shall prevent the Company, the Purchase Contract
Agent or any agent of the Company or the Purchase Contract Agent, from giving
effect to any written certification, proxy or other authorization furnished
by any Clearing Agency (or its nominee), as a Holder, with respect to such
Global Certificate or impair, as between such Clearing Agency and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Clearing Agency (or its
nominee) as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common Stock on
or after the Purchase Contract Settlement Date, upon the transfer of
Preferred Securities, Debentures, the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of that term) of the
Treasury Portfolio or Treasury Securities, as the case may be, after the
occurrence of a Termination Event or pursuant to an Early Settlement, or upon
the registration of transfer or exchange of a Security, or a Collateral
Substitution or the reestablishment of PEPS Units shall, if surrendered to
any Person other than the Purchase Contract Agent, be delivered to the
Purchase Contract Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Purchase Contract
Agent for cancellation any Certificates previously authenticated, executed
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon Issuer Order, be
promptly cancelled by the Purchase Contract Agent. No Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or
in exchange for any Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Certificates
held by the Purchase Contract Agent shall be destroyed by the Purchase
Contract Agent unless otherwise directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13. Creation of Treasury PEPS Units by Substitution of Treasury
Securities.
A Holder may separate the Preferred Securities or the Debentures, as
applicable, from the related Purchase Contracts in respect of such Holder's
PEPS Units by substituting for such Preferred Securities or Debentures, as
applicable, Treasury Securities in an aggregate principal amount equal to the
aggregate liquidation amount of such Preferred Securities or the aggregate
principal amount of such Debentures, as applicable (a "Collateral
Substitution"), at any time from and after the date of this Agreement and
prior to or on the seventh Business Day immediately preceding ________________:
(i) depositing with the Securities Intermediary Treasury Securities
having an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Securities or the aggregate principal amount of
the Debentures comprising part of such PEPS Units, as the case may be; and
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(ii) transferring the related PEPS Units to the Purchase Contract
Agent accompanied by a notice to the Purchase Contract Agent, substantially
in the form of Exhibit C hereto, (i) stating that the Holder has
transferred the relevant amount of Treasury Securities to the Securities
Intermediary and (ii) requesting that the Purchase Contract Agent instruct
the Collateral Agent to release the Preferred Securities or the Debenture,
as the case may be, underlying such PEPS Units, whereupon the Purchase
Contract Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (1) above
and the instruction described in clause (2) above, in accordance with the
terms of the Pledge Agreement, the Collateral Agent will cause the Securities
Intermediary to effect the release of such Preferred Securities or the
Debentures, as the case may be, from the Pledge, free and clear of the
Company's security interest therein, and the transfer of such Preferred
Securities or the Debentures, as the case may be, to the Purchase Contract
Agent on behalf of the Holder. Upon receipt thereof, the Purchase Contract
Agent shall promptly:
(i) cancel the related PEPS Units;
(ii) transfer the Preferred Securities or the Debentures, as the case
may be, to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver a
Treasury PEPS Units Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled PEPS Units.
Holders who elect to separate the Preferred Securities or the
Debentures, as the case may be, from the related Purchase Contracts and to
substitute Treasury Securities for such Preferred Securities or the
Debentures, as the case may be, shall be responsible for any fees or expenses
payable to the Collateral Agent for its services as Collateral Agent in
respect of the substitution, and the Company shall not be responsible for any
such fees or expenses.
Holders may make Collateral Substitutions only in integral multiples of
40 PEPS Units.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the PEPS Units or fails
to deliver PEPS Units Certificates to the Purchase Contract Agent after
depositing Treasury Securities with the Collateral Agent, constituting a part
of such PEPS Units, any distributions on such Preferred Securities or the
Debentures, as the case may be, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until
such PEPS Units are so transferred or the PEPS Units Certificate is so
delivered, as the case may be, or, with respect to a PEPS Units Certificate,
such Holder provides evidence satisfactory to the Company and the Purchase
Contract Agent that such PEPS Units Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Purchase
Contract Agent and the Company.
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Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a PEPS Unit remains in effect, such PEPS Unit shall not
be separable into its constituent parts, and the rights and obligations of
the Holder in respect of the Preferred Securities or the Debentures, as the
case may be, and the Purchase Contract comprising such PEPS Unit may be
acquired, and may be transferred and exchanged, only as a PEPS Unit.
Section 3.14. Reestablishment of PEPS Units.
A Holder of Treasury PEPS Units may recreate PEPS Units at any time (i)
prior to or on the seventh Business Day immediately preceding
____________________ by:
(i) depositing with the Securities Intermediary Preferred Securities
or the Debentures, as the case may be, having an aggregate liquidation
amount in the case of Preferred Securities or aggregate principal amount in
the case of Debentures, as the case may be, equal to the aggregate
principal amount at maturity of the Treasury Securities comprising part of
the Treasury PEPS Units; and
(ii) transferring the related Treasury PEPS Units to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, (i) stating that the Holder
has transferred the relevant amount of Preferred Securities or the
Debentures, as the case may be, to the Securities Intermediary and (ii)
requesting that the Purchase Contract Agent instruct the Collateral Agent
to release the Treasury Securities underlying such Treasury PEPS Units,
whereupon the Purchase Contract Agent shall promptly give such instruction
to the Collateral Agent, substantially in the form of Exhibit C to the
Pledge Agreement.
Upon receipt of the Preferred Securities or the Debentures, as the case may
be, described in clause (1) above and the instruction described in clause (2)
above, in accordance with the terms of the Pledge Agreement, the Collateral
Agent will cause the Securities Intermediary to effect the release of the
Treasury Securities having a corresponding aggregate principal amount at
maturity from the Pledge, free and clear of the Company's security interest
therein, and the transfer to the Purchase Contract Agent on behalf of the
Holder. Upon receipt thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Treasury PEPS Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver a
PEPS Units Certificate executed by the Company in accordance with Section
3.3 evidencing the same number of Purchase Contracts as were evidenced by
the cancelled Treasury PEPS Units.
Holders who elect to recreate PEPS Units shall be responsible for any
fees or expenses payable to the Collateral Agent for its services as
Collateral Agent in respect of the substitution, and the Company shall not be
responsible for any such fees or expenses.
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Holders of Treasury PEPS Units may reestablish PEPS Units in integral
multiples of 40 Treasury PEPS Units for 40 PEPS Units. If a Tax Event
Redemption has occurred, Holders may no longer convert their PEPS Units or
their Treasury PEPS Units, as the case may be
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury PEPS Unit remains in effect, such Treasury
PEPS Unit shall not be separable into its constituent parts and the rights
and obligations of the Holder of such Treasury PEPS Unit in respect of the
1/40 of a Treasury Security and the Purchase Contract comprising such
Treasury PEPS Unit may be acquired, and may be transferred and exchanged,
only as a Treasury PEPS Unit.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to the
Purchase Contract Agent of the Preferred Securities, Debentures, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or the
Treasury Securities, as the case may be, underlying the PEPS Units and the
Treasury PEPS Units, as the case may be, pursuant to the terms of the Pledge
Agreement, the Purchase Contract Agent shall request transfer instructions
with respect to such Preferred Securities, Debentures, the appropriate
Applicable Ownership Interest of the Treasury Portfolio or Treasury
Securities, as the case may be, from each Holder by written request,
substantially in the form of Exhibit D hereto, mailed to such Holder at its
address as it appears in the PEPS Units Register or the Treasury PEPS Units
Register, as the case may be.
Upon book-entry transfer of the PEPS Units or the Treasury PEPS Units or
delivery of a PEPS Units Certificate or Treasury PEPS Units Certificate to
the Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer the Preferred Securities, Debentures, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such PEPS Units or
Treasury PEPS Units, as the case may be, to such Holder by book-entry
transfer, or other appropriate procedures, in accordance with such
instructions. In the event a Holder of PEPS Units or Treasury PEPS Units
fails to effect such transfer or delivery, the Preferred Securities,
Debentures, the appropriate Applicable Ownership Interest of the Treasury
Portfolio or Treasury Securities, as the case may be, underlying such PEPS
Units or Treasury PEPS Units, as the case may be, and any distributions
thereon, shall be held in the name of the Purchase Contract Agent or its
nominee in trust for the benefit of such Holder, until the earlier of:
(i) such PEPS Units or Treasury PEPS Units are transferred or the
PEPS Units Certificate or Treasury PEPS Units Certificate is surrendered or
such Holder provides satisfactory evidence that such PEPS Units Certificate
or Treasury PEPS Units Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Purchase Contract
Agent and the Company; and
(ii) the expiration of the time period specified in the abandoned
property laws of the relevant State.
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Section 3.16. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or
its trustee, receiver, liquidator or a person or entity performing similar
functions in the event that the Company becomes the debtor under the
Bankruptcy Code or subject to other similar state or Federal law providing
for reorganization or liquidation.
ARTICLE IV
The Preferred Securities
Section 4.1. Interest Payments; Rights to Interest Payments Preserved.
Any distribution on any Preferred Security, any Debenture or on the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, which is paid on any Payment Date shall, subject to receipt
thereof by the Purchase Contract Agent from the Collateral Agent as provided
by the terms of the Pledge Agreement, be paid to the Person in whose name the
PEPS Units Certificate (or one or more Predecessor PEPS Units Certificates)
of which such Preferred Security, such Debenture or on the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
is a part is registered at the close of business on the Record Date for such
Payment Date.
Each PEPS Units Certificate evidencing Preferred Securities, Debentures
or the appropriate Applicable Ownership Interest of the Treasury Portfolio
delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of any other PEPS Units Certificate shall carry the
right to distributions accrued and unpaid, and to accrue distributions
interest, which were carried by the Preferred Securities, Debentures or the
appropriate Applicable Ownership Interest of the Treasury Portfolio
underlying such other PEPS Units Certificate.
In the case of any PEPS Units with respect to which Cash Settlement of
the underlying Purchase Contract is properly effected pursuant to Section 5.4
hereof, or with respect to which Early Settlement of the underlying Purchase
Contract is properly effected pursuant to Section 5.9 hereof, or with respect
to which a Collateral Substitution is effected, in each case on a date that
is after any Record Date and prior to or on the next succeeding Payment Date,
distributions on the Preferred Securities, Debentures or on the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
underlying such PEPS Unit otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Cash Settlement or Early
Settlement or Collateral Substitution, and such distributions shall, subject
to receipt thereof by the Purchase Contract Agent, be payable to the Person
in whose name the PEPS Units Certificate (or one or more Predecessor PEPS
Units Certificates) was registered at the close of business on the Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any PEPS Unit with respect to which Cash Settlement
or Early Settlement of the underlying Purchase Contract is properly effected,
or with respect to which a Collateral Substitution has been effected,
distributions on the related Preferred Securities, Debentures or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
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case may be, that would otherwise be payable after the Purchase Contract
Settlement Date or Early Settlement Date shall not be payable hereunder to
the Holder of such PEPS Units; provided, however, that to the extent that
such Holder continues to hold separated Preferred Securities or Debentures
that formerly comprised a part of such Holder's PEPS Unit, such Holder shall
be entitled to receive distributions on such separated Preferred Securities
or Debentures.
The applicable Coupon Rate on the Debentures on and after the
Remarketing Settlement Date shall be equal to the Reset Rate (such Reset Rate
to be in effect on and after the Remarketing Settlement Date).
Not later than 15 calendar days nor more than 30 calendar days prior to
the _____ Business Day immediately preceding ______________________________,
the Company shall request DTC (or any successor Clearing Agency), to notify
the Beneficial Owners or Clearing Agency Participants holding PEPS Units of
the procedures to be followed by Holders of PEPS Units who intend to effect a
Cash Settlement.
Section 4.2. Notice and Voting.
Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Preferred Securities or Pledged Debenture, but only
to the extent instructed in writing by the Holders as described below. Upon
receipt of notice of any meeting at which holders of Preferred Securities or
Debentures are entitled to vote or upon any solicitation of consents, waivers
or proxies of holders of Preferred Securities or Debentures, the Purchase
Contract Agent shall, as soon as practicable thereafter, mail to the Holders
of PEPS Units a notice:
(i) containing such information as is contained in the notice or
solicitation;
(ii) stating that each Holder on the record date set by the Purchase
Contract Agent therefor (which, to the extent possible, shall be the same
date as the record date for determining the holders of Preferred Securities
or Debentures, as the case may be, entitled to vote) shall be entitled to
instruct the Purchase Contract Agent as to the exercise of the voting
rights pertaining to such Preferred Securities or Debentures underlying
their PEPS Units; and (3) stating the manner in which such instructions may
be given.
Upon the written request of the Holders of PEPS Units on such record date
received by the Purchase Contract Agent at least six days prior to such
meeting, the Purchase Contract Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in
such requests, the maximum number of Preferred Securities or Debentures, as
the case may be, as to which any particular voting instructions are received.
In the absence of specific instructions from the Holder of a PEPS Unit, the
Purchase Contract Agent shall abstain from voting the Preferred Securities or
Debentures underlying such PEPS Unit. The Company hereby agrees, if
applicable, to solicit Holders of PEPS Units to timely instruct the
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Purchase Contract Agent in order to enable the Purchase Contract Agent to
vote such Preferred Securities or Debentures and the Trust shall covenant to
this effect in the Declaration.
Section 4.3. Distribution of Debentures; Tax Event Redemption.
Upon the liquidation of the Trust in accordance with the Declaration, a
principal amount at maturity of Debentures constituting the assets of the
Trust and underlying the Preferred Securities equal to the aggregate
liquidation amount of the Pledged Preferred Securities shall be delivered to
the Securities Intermediary in exchange for the Pledged Preferred Securities.
Thereafter, the Debentures will be substituted for the Pledged Preferred
Securities as the Collateral, and will be held by the Securities Intermediary
in the Collateral Account in accordance with the terms of the Pledge
Agreement to secure the obligations of each Holder of a PEPS Unit to purchase
the Common Stock of the Company under the Purchase Contracts constituting a
part of such PEPS Unit. Following the liquidation of the Trust, the Holders
and the Collateral Agent shall have such security interests, rights and
obligations with respect to the Debentures as the Holders and the Collateral
Agent had in respect of the Preferred Securities subject to the Pledge
thereof as provided in Articles II, III, IV, V and VI of the Pledge
Agreement. The Company may cause to be made in any PEPS Unit Certificates
thereafter to be issued such change in phraseology and form (but not in
substance) as may be appropriate to reflect the liquidation of the Trust and
the substitution of Debentures for Preferred Securities as Collateral.
Upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Redemption Price payable on the Tax Event
Redemption Date with respect to the Applicable Principal Amount shall be
deposited in the Collateral Account in exchange for the Pledged Preferred
Securities or the Pledged Debentures. Thereafter, pursuant to the terms of
the Pledge Agreement, the Collateral Agent shall cause the Securities
Intermediary to apply an amount equal to the Redemption Amount of such
Redemption Price to purchase on behalf of the Holders of PEPS Units the
Treasury Portfolio and promptly remit the remaining portion of such
Redemption Price to the Purchase Contract Agent for payment to the Holders of
such PEPS Units. The Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio will be
substituted as Collateral for the Pledged Preferred Securities or the Pledged
Debentures, and will be held by the Collateral Agent in accordance with the
terms of the Pledge Agreement to secure the obligation of each Holder of a
PEPS Unit to purchase the Common Stock of the Company under the Purchase
Contract constituting a part of such PEPS Unit. Following the occurrence of a
Tax Event Redemption prior to the Purchase Contract Settlement Date, the
Holders of PEPS Units and the Collateral Agent shall have such security
interest rights and obligations with respect to the Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio as the Holders of PEPS Units and the Collateral Agent had
in respect of the Preferred Securities or Debentures, as the case may be,
subject to the Pledge thereof as provided in Articles II, III, IV, V, and VI
of the Pledge Agreement, and any reference herein to the Preferred Securities
or the Debentures shall be deemed to be reference to such Treasury Portfolio.
The Company may cause to be made in any PEPS Unit Certificates thereafter to
be issued such change in phraseology and fom (but not in substance) as may be
appropriate to reflect the liquidation of the Trust and the substitution of
the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio for Preferred Securities
or Debentures as Collateral.
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ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless a Cash Settlement has occurred in
accordance with Section 5.4 hereof or an Early Settlement has occurred in
accordance with Section 5.9 hereof, obligate the Holder of the related Security
to purchase, and the Company to sell, on the Purchase Contract Settlement Date
at a price equal to the Stated Amount (the "Purchase Price"), a number of shares
of Common Stock equal to the Settlement Rate unless, prior to or on the Purchase
Contract Settlement Date, there shall have occurred a Termination Event with
respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to:
(i) if the Applicable Market Value (as defined below) is greater
than or equal to $___________ (the "Threshold Appreciation Price"), _____
shares of Common Stock per Purchase Contract;
(ii) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $__________ (the "Reference Price"),
the number of shares of Common Stock per Purchase Contract having a value,
based on the Applicable Market Value, equal to __________; and
(iii) if the Applicable Market Value is less than or equal to the
Reference Price, ___________ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in Section 5.6 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
As provided in Section 5.11, no fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means:
(i) the closing sale price (or, if no closing price is reported,
the last reported sale price) per share on the New York Stock Exchange,
Inc. (the "NYSE") on such date;
(ii) if the Common Stock is not listed for trading on the NYSE on
any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities exchange
on which the Common Stock is so listed;
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(iii) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per share
as reported by The Nasdaq Stock Market, Inc.;
(iv) if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported by
the National Quotation Bureau or similar organization; or
(v) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of the Common Stock on such date
from at least three nationally recognized independent investment banking
firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a PEPS Unit or a Treasury PEPS Unit, by its acceptance
thereof:
(i) irrevocably authorizes the Purchase Contract Agent to enter
into and perform the related Purchase Contract on its behalf as its
attorney-in-fact (including the execution of Certificates on behalf of such
Holder);
(ii) agrees to be bound by the terms and provisions thereof;
(iii) covenants and agrees to perform its obligations under such
Purchase Contracts;
(iv) consents to the provisions hereof;
(v) irrevocably authorizes the Purchase Contract Agent to enter
into and perform this Agreement and the Pledge Agreement on its behalf as
its attorney-in-fact; and
(vi) consents to, and agrees to be bound by, the Pledge of the
Preferred Securities, Debentures, the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio or the Treasury Securities pursuant to the Pledge Agreement,
provided that upon a Termination Event, the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any other
rights or obligations. Each Holder of a PEPS Unit or a Treasury PEPS Unit, by
its acceptance thereof, further covenants and agrees, that to the extent and in
the manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, payments in respect of the Preferred Securities or the Debentures
or the proceeds from the Treasury Securities or the Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio at maturity on the Purchase
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Contract Settlement Date, as the case may be, shall be paid by the Collateral
Agent to the Company in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest
in such payments.
Upon registration of transfer of a Certificate, the transferee shall be
bound (without the necessity of any other action on the part of such transferee)
by the terms of this Agreement, the Purchase Contracts underlying such
Certificate, the Declaration and the Pledge Agreement and the transferor shall
be released from the obligations under this Agreement, the Purchase Contracts
underlying the Certificate so transferred and the Pledge Agreement. The Company
covenants and agrees, and each Holder of a Certificate, by its acceptance
thereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
Section 5.2. Purchase Contract Payments.
The Company shall pay, on each Payment Date, the Purchase Contract Payments
payable in respect of each Purchase Contract to the Person in whose name a
Certificate (or one or more Predecessor Certificates) is registered at the close
of business on the Record Date next preceding such Payment Date. The Purchase
Contract Payments will be payable at the office of the Purchase Contract Agent
in New York City maintained for that purpose or, at the option of the Company,
by check mailed to the address of the Person entitled thereto at such Person's
address as it appears on the PEPS Units Register or Treasury PEPS Units
Register. If any date on which Purchase Contract Payments are to be made is not
a Business Day, then payment of the Purchase Contract Payments payable on such
date will be made on the next day that is a Business Day (and without any
interest in respect of any such delay), except that, if such Business Day is in
the next calendar year, such payment will be made on the preceding Business Day.
Upon the occurrence of a Termination Event, the Company's obligation to pay
Purchase Contract Payments (including any accrued or deferred Purchase Contract
Payments) shall cease.
Each Certificate delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the reestablishment of PEPS Units) any other
Certificate shall carry the right to accrued and unpaid or deferred Purchase
Contract Payments and the right to accrue Purchase Contract Payments, which
rights were carried by the Purchase Contracts underlying such other
Certificates.
Subject to Section 5.9, in the case of any Security with respect to which
Early Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date that is after any Record Date and prior to or on the next
succeeding Payment Date, Purchase Contract Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Purchase Contract Payments shall be paid to the Person in
whose name the Certificate evidencing such Security (or one or more Predecessor
Certificates) is registered at the close of business on such Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the
case of any Security with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, Purchase Contract
Payments that would otherwise be payable after the Early Settlement Date with
respect to such Purchase Contract shall not be payable.
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Section 5.3. Deferral of Purchase Contract Payments.
The Company has the right to defer payment of all or part of the Purchase
Contract Payments in respect of each Purchase Contract until no later than the
Purchase Contract Settlement Date. If the Company so elects to defer Purchase
Contract Payments, the Company shall pay additional Purchase Contract Payments
on such deferred installments of Purchase Contract Payments at a rate equal to
___% per annum, compounding quarterly, until such deferred installments are
paid. If a Holder effects an Early Settlement or if a Termination Event shall
occur, such Holder will have no right to receive any accrued deferred Purchase
Contract Payments.
Section 5.4. Payment of Purchase Price.
(a) (i) Unless a Tax Event Redemption has occurred or a Holder of a PEPS
Unit effects an Early Settlement of the underlying Purchase Contract in the
manner described in Section 5.9, each such Holder who intends to pay in cash to
satisfy such Holder's obligations under the Purchase Contract shall notify the
Purchase Contract Agent by use of a notice in substantially the form of Exhibit
E hereto of his intention to pay in cash ("Cash Settlement") the Purchase Price
for the shares of Common Stock to be purchased pursuant to the related Purchase
Contract. Such notice shall be given prior to 5:00 p.m. (New York City time) on
the seventh Business Day immediately preceding _____________. Prior to 11:00
a.m. (New York City time) on the next succeeding Business Day, the Purchase
Contract Agent shall notify the Collateral Agent and the Indenture Trustee of
the receipt of such notices from Holders intending to make a Cash Settlement.
Holders may make Cash Settlements only in integral multiples of 40 PEPS Units.
(ii) A Holder of a PEPS Unit who has so notified the Purchase
Contract Agent of his intention to effect a Cash Settlement in accordance
with paragraph (a)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New
York City time) on the fifth Business Day immediately preceding
____________________ in lawful money of the United States by certified or
cashiers' check or wire transfer, in each case in immediately available
funds payable to or upon the order of the Securities Intermediary. Any
cash received by the Collateral Agent shall be invested in the Treasury
Consideration the proceeds which will be used to pay the Company on the
Purchase Contract Settlement Date the amounts due to it under the Purchase
Contracts in accordance with the terms of this Agreement and the Pledge
Agreement and the quarterly payment amount due to the Holders of PEPS
Units that did not make a Cash Settlement.
(iii) If a Holder of a PEPS Unit fails to notify the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph (a)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (a)(i) above of his intention to pay the Purchase
Price in cash, but fails to make such payment as required by paragraph
(a)(ii) above, such Holder shall be deemed to have consented to the
disposition of the Pledged Preferred Securities or the Pledged Debentures
pursuant to the Remarketing as described in paragraph (b) below.
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(iv) Promptly after 11:00 a.m. (New York City time) on the fifth
Business Day preceding the Purchase Contract Settlement Date, the Purchase
Contract Agent, based on notices received by the Purchase Contract Agent
pursuant to Section 5.4(a) hereof and notice from the Securities
Intermediary regarding cash received by it prior to such time, shall notify
the Collateral Agent and the [Property] Trustee of the aggregate number of
Preferred Securities or Debentures to be tendered for purchase in the
Remarketing in a notice substantially in the form of Exhibit F hereto.
(b) In order to dispose of the Preferred Securities or Debentures, PEPS
Units Holders who have not notified the Purchase Contract Agent of their
intention to effect a Cash Settlement as provided in paragraph (a)(i) above, or
who have so notified the Purchase Contract Agent but failed to make such payment
as required by paragraph (a)(ii) above, the Company shall engage
_________________________________ (the "Remarketing Agent") pursuant to the
Remarketing Agreement to sell such Preferred Securities or Debentures. In order
to facilitate the Remarketing, the Purchase Contract Agent, based on the notices
specified in Section 5.4(a)(iv), shall notify the Remarketing Agent, promptly
after 11:00 a.m. (New York City time) on the fifth Business Day immediately
preceding _______________________________, of the aggregate number of Preferred
Securities or Debentures that are part of PEPS Units to be remarketed.
Concurrently, the Collateral Agent, pursuant to the terms of the Pledge
Agreement, shall cause such Preferred Securities or Debentures to be presented
to the Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent and such
Preferred Securities or Debentures, the Remarketing Agent shall, on the third
Business Day immediately preceding _______________________________, use
reasonable efforts to remarket such Preferred Securities or Debentures on such
date at a price of 100% of the aggregate stated liquidation of such Preferred
Securities or principal amount of such Debentures, as provided in the
Remarketing Agreement. [The Remarketing Agents shall notify the Company of the
total proceeds from the Remarketing and the amount of the Round Lot Payment
required to be made by the Company to the Remarketing Agents.] The proceeds
from the Remarketing along with the Round Lot Payment shall be used by the
Collateral Agent to purchase the Treasury Consideration and the proceeds of the
Treasury Consideration shall be used to satisfy in full such PEPS Units Holders'
obligations to pay the Purchase Price for the shares of Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date. Any
proceeds remaining after satisfaction of the Purchase Contract and repayment to
the Company of the amount of the Round Lot Payment shall be payable Pro Rata to
the Holder of such PEPS Unit.
If, in spite of using their reasonable efforts, the Remarketing Agent
cannot remarket the related Preferred Securities or Debentures of such Holders
of PEPS Units at a price of 100% of the aggregate stated liquidation amount of
such Preferred Securities or principal amount at maturity of such Debentures, on
the Remarketing Date then the Remarketing Agent shall attempt to Remarket such
securities approximately every two weeks until three Business Days prior to the
Purchase Contract Settlement Date. If the Remarketing Agent cannot Remarket the
Preferred Securities or the Debentures, as the case may be, by three Business
Days prior to the Purchase Contract Settlement Date, the Remarketing shall be
deemed to have failed (a "Failed Remarketing") and in accordance with the terms
of the Pledge Agreement, the Collateral Agent,
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for the benefit of the Company, shall exercise its rights as a secured party
with respect to such Preferred Securities or Debentures, including those
actions specified in paragraph (c) below; provided, that if upon a Failed
Remarketing the Collateral Agent exercises such rights for the benefit of the
Company with respect to such Preferred Securities or Debentures, any accrued
and unpaid distributions on such Preferred Securities or Debentures shall
become payable by the Company to the Purchase Contract Agent for payment to
the Beneficial Owner of the PEPS Units to which such Preferred Securities or
Debentures relate. The Company shall cause a notice of such Failed
Remarketing to be published on the Business Day immediately preceding the
Purchase Contract Settlement Date in a daily newspaper in the English
language of general circulation in New York City, which is expected to be The
Wall Street Journal.
(c) With respect to any Preferred Securities or Debentures which are
subject to a Failed Remarketing, the Collateral Agent for the benefit of the
Company reserves all of its rights as a secured party with respect thereto and,
subject to applicable law and paragraph (g) below, may, among other things, (i)
retain the Preferred Securities or Debentures in full satisfaction of the
Holders' obligations under the Purchase Contracts or (ii) sell the Preferred
Securities or Debentures in one or more public or private sales.
(d) (i) Unless a Holder of a Treasury PEPS Units or PEPS Units (if a Tax
Event Redemption has occurred) effects an Early Settlement of the underlying
Purchase Contract through the early delivery of cash to the Purchase Contract
Agent in the manner described in Section 5.9, each Holder of a Treasury PEPS
Unit or PEPS Unit (if a Tax Event Redemption has occurred) who intends to pay in
cash shall notify the Purchase Contract Agent by use of a notice in
substantially the form of Exhibit E hereto of his intention to pay in cash the
Purchase Price for the shares of Common Stock to be purchased pursuant to the
related Purchase Contract. Such notice shall be given prior to 5:00 p.m. (New
York City time) on the second Business Day immediately preceding ____________
_________________. Prior to 11:00 a.m. (New York City time) on the next
succeeding Business Day, the Purchase Contract Agent shall notify the Collateral
Agent of the receipt of such notices from such Holders intending to make a Cash
Settlement.
(ii) A Holder of a Treasury PEPS Unit or PEPS Units (if a Tax Event
Redemption has occurred) who has so notified the Purchase Contract Agent of
his intention to make a Cash Settlement in accordance with paragraph (d)(i)
above shall pay the Purchase Price to the Securities Intermediary for
deposit in the Collateral Account prior to 11:00 a.m. (New York City time)
on the Business Day immediately preceding the Purchase Contract Settlement
Date in lawful money of the United States by certified or cashiers' check
or wire transfer, in each case in immediately available funds payable to or
upon the order of the Securities Intermediary. Any cash received by the
Collateral Agent shall be invested promptly by the Securities Intermediary
in Permitted Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance with
the terms of this Agreement and the Pledge Agreement. Any funds received
by the Securities Intermediary in respect of the investment earnings from
the investment in such Permitted Investments in excess of the Purchase
Price for the shares of common stock to be purchased by such Holder shall
be distributed to the Purchase Contract Agent when received for payment to
the Holder.
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(iii) If a Holder of a Treasury PEPS Unit or Holder of a PEPS Unit
(if a Tax Event Redemption has occurred) fails to notify the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph (d)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (d)(i) above of his intention to pay the Purchase
Price in cash, but fails to make such payment as required by paragraph
(d)(ii) above, then upon the maturity of the Pledged Treasury Securities or
the appropriate Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio held by the
Securities Intermediary on the Business Day immediately preceding the
Purchase Contract Settlement Date, the principal amount of the Treasury
Securities or the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio
received by the Securities Intermediary shall be invested promptly in
Permitted Investments. On the Purchase Contract Settlement Date, an amount
equal to the Purchase Price shall be remitted to the Company as payment
thereof without receiving any instructions from the Holder. In the event
the sum of the proceeds from the related Pledged Treasury Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio and the investment
earnings earned from such investments is in excess of the aggregate
Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall cause the Securities Intermediary to distribute such
excess to the Purchase Contract Agent for the benefit of the Holder of the
related Treasury PEPS Unit or PEPS Unit when received.
(iv) A Holder of a Treasury PEPS Unit may elect to have the Preferred
Securities or the Debentures, as the case may be, no longer a part of a
PEPS Unit, remarketed. A Holder making such an election must notify the
Property Trustee prior to 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding ______________________________, of the
aggregate number of Preferred Securities or Debentures, as the case may be,
that are not part of PEPS Units to be remarketed. Any such notice will be
irrevocable and may not be conditioned upon the level at which the Reset
Rate is established in the Remarketing. Concurrently, the Property Trustee
shall cause such Preferred Securities or Debentures, as the case may be, to
be presented to the Remarketing Agent for Remarketing.
(e) Any distribution to Holders of excess funds described above shall
be payable at the office of the Purchase Contract Agent in New York City
maintained for that purpose or, at the option of the Holder, by check mailed
to the address of the Person entitled thereto at such address as it appears
on the Register.
(f) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the
terms of the Pledge Agreement cause the Pledged Preferred
Securities, Pledged Debentures, the appropriate Applicable
Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio or the
Pledged Treasury Securities, as the case may be, underlying the
relevant Security to be released from the Pledge, free and
clear of any security interest of the Company, and
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transferred to the Purchase Contract Agent for delivery to the
Holder thereof or its designee as soon as practicable; and
(ii) subject to the receipt thereof, the Purchase Contract
Agent shall, by book-entry transfer or other appropriate
procedures, in accordance with written instructions provided by
the Holder thereof, transfer such Preferred Securities or
Debentures, or the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of
the Treasury Portfolio or such Treasury Securities, as the case
may be (or, if no such instructions are given to the Purchase
Contract Agent by the Holder, the Purchase Contract Agent shall
hold such Preferred Securities, Debentures, or the appropriate
Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio or such
Treasury Securities, as the case may be, and any interest
payment thereon, in the name of the Purchase Contract Agent or
its nominee in trust for the benefit of such Holder until the
expiration of the time period specified in the abandoned
property laws of the relevant state).
(g) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent satisfied by Early
Settlement or Cash Settlement, are payable solely out of the proceeds of any
Collateral pledged to secure the obligations of the Holders and in no event
will Holders be liable for any deficiency between the proceeds of the
disposition of Collateral and the Purchase Price.
(h) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates thereof
to the Holder of the related PEPS Unit or Treasury PEPS Unit unless the
Company shall have received payment in full for the aggregate purchase price
for the Common Stock to be purchased thereunder in the manner herein set
forth.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have occurred,
subject to Section 5.6(b), on the Purchase Contract Settlement Date upon
receipt of the aggregate Purchase Price payable on all Outstanding
Securities, Contract the Company shall issue and deposit with the Purchase
Contract Agent, for the benefit of the Holders of the Outstanding Securities,
one or more certificates representing the shares of Common Stock registered
in the name of the Purchase Contract Agent (or its nominee) as custodian for
the Holders (such certificates for shares of Common Stock, together with any
dividends or distributions for which a record date and payment date for such
dividend or distribution has occurred after the Purchase Contract Settlement
Date, being hereinafter referred to as the "Purchase Contract Settlement
Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract Agent on or after the Purchase Contract Settlement Date,
together with settlement instructions thereon duly completed and executed,
the Holder of such Certificate shall be entitled to receive forthwith in
exchange therefor a certificate representing that number of whole shares of
Common Stock which such Holder is entitled to receive pursuant to the
provisions of this Article Five (after taking into account all Securities
then held by such Holder), together with cash in lieu of
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fractional shares as provided in Section 5.11 and any dividends or
distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the
Certificate so surrendered shall forthwith be cancelled. Such shares shall
be registered in the name of the Holder or the Holder's designee as specified
in the settlement instructions provided by the Holder to the Purchase
Contract Agent. If any shares of Common Stock issued in respect of a
Purchase Contract are to be registered to a Person other than the Person in
whose name the Certificate evidencing such Purchase Contract is registered,
no such registration shall be made unless the Person requesting such
registration has paid any transfer and other taxes required by reason of such
registration in a name other than that of the registered Holder of the
Certificate evidencing such Purchase Contract or has established to the
satisfaction of the Company that such tax either has been paid or is not
payable.
Section 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on Common Stock in Common Stock, the Settlement Rate in effect
at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination; and
(ii) the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, warrants or options to
all holders of its Common Stock (not being available on an equivalent basis
to Holders of the Securities upon settlement of the Purchase Contracts
underlying such Securities) (except pursuant to the Company's Dividend
Reinvestment and Common Stock Purchase Plan) entitling them, for a period
expiring within 45 days after the record date for the determination of
shareholders entitled to receive such rights, warrants or options, to
subscribe for or purchase shares of Common Stock at a price per share less
than the Current Market Price per share of Common Stock on the date fixed
for the determination of shareholders entitled to receive such rights,
warrants or options (other than pursuant to a dividend reinvestment plan),
the Settlement Rate in effect at the opening of business on
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the day following the date fixed for such determination shall be increased
by dividing such Settlement Rate by a fraction of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase
at such Current Market Price; and
(ii) the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, warrants or options in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the Settlement Rate
in effect at the opening of business on the day following the day upon
which such subdivision or split becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall each be combined into a smaller number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights, warrants or options
referred to in paragraph (2) of this Section 5.6(a), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.6(a)), the Settlement Rate
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled
to receive such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price per share of
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) of the portion of the assets or evidences of indebtedness
so distributed applicable to one share of Common Stock; and
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(ii) the denominator shall be such Current Market Price per share
of Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in which
this paragraph (4) is applicable, paragraph (2) of this Section 5.6(a)
shall not be applicable.
(5) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding:
(x) any quarterly cash dividend on Common Stock to the extent
that the aggregate cash dividend per share of Common Stock in any
fiscal quarter does not exceed the greater of (A) the amount per share
of Common Stock of the next preceding quarterly cash dividend on
Common Stock to the extent that such preceding quarterly dividend did
not require an adjustment of the Settlement Rate pursuant to this
Section 5.6(a)(5) (as adjusted to reflect subdivisions or combinations
of Common Stock), and (B) ___% of the arithmetic average of the
Closing Prices of Common Stock during the ten consecutive Trading Days
immediately prior to the date of declaration of such dividend, and
(y) any dividend or distribution in connection with the
liquidation, dissolution or termination of the Company, whether
voluntary or involuntary),
then, in such case, the Settlement Rate shall be increased so that the same
shall equal the rate determined by multiplying the Settlement Rate in effect
immediately prior to the close of business on such record date by a fraction
of which:
(i) the numerator shall be the Current Market Price of
Common Stock; and
(ii) the denominator shall be the Current Market Price of
Common Stock on the record date less the amount of cash so
distributed (and not excluded as provided above) applicable to
one share of Common Stock,
such increase to be effective immediately prior to the opening of business
on the day following the record date; provided, however, that in the event
the portion of cash so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price per share of Common
Stock on the record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of a Security shall have the
right to receive upon settlement of the Securities the amount of cash such
Holder would have received had such Holder settled each Security on the
record date. In the event that such dividend or distribution is not so
paid or made, the Settlement Rate shall again be adjusted to be the
Settlement Rate which would then be in effect if such dividend or
distribution had not been declared. If any adjustment is required to be
made as set forth in this Section 5.6(a)(5) as a result of a distribution
that is a quarterly dividend, such adjustment shall be based upon the
amount by which such distribution
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exceeds the amount of the largest quarterly cash dividend permitted to be
excluded pursuant to this Section 5.6(a)(5), notwithstanding the provisions
of Section 5.6(a)(10). If an adjustment is required to be made as set
forth in this Section 5.6(a)(5) above as a result of a distribution that is
not a quarterly dividend, such adjustment shall be based upon the full
amount of the distribution.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of Purchased Shares) of (I) an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) that combined together
with the aggregate of the cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender or
exchange offer, of consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the Company for all or
any portion of Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to this paragraph (6) has been made, and (II) the
aggregate amount of any distributions to all holders of Common Stock made
exclusively in cash within the 12 months preceding the expiration of such
tender or exchange offer and in respect of which no adjustment pursuant to
paragraph (6) has been made, exceeds __% of the product of the Current
Market Price per share of Common Stock as of the last time (the "Expiration
Time") tenders could have been made pursuant to such tender or exchange
offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time, then,
and in each such case, immediately prior to the opening of business on the
day after the date of the Expiration Time, the Settlement Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Settlement Rate immediately prior to the close of business on the date of
the Expiration Time by a fraction:
(i) the numerator of which shall be equal to (A) the product of
(I) the Current Market Price per share of Common Stock on the date
of the Expiration Time and (II) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time
less (B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders
based on the transactions described in clauses (I) and (II) above
(assuming in the case of clause (I) the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of Purchased
Shares); and
(ii) the denominator of which shall be equal to the product of
(A) the Current Market Price per share of Common Stock as of the
Expiration Time and (B) the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time
less the number of all shares validly tendered and not withdrawn as of
the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares").
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(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be deemed to
involve:
(i) a distribution of such securities other than Common Stock
to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of shareholders entitled to receive such distribution"
and the "date fixed for such determination" within the meaning of
paragraph (4) of this Section); and
(ii) a subdivision, split or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision or split becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon
which such subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 30 Trading
Days before, and ending not later than, the earlier of the day in question
and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph,
the term "ex date", when used with respect to any issuance or distribution,
shall mean the first date on which Common Stock trades regular way on such
exchange or in such market without the right to receive such issuance or
distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent thereof;
provided, however, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (a), (b) or
(c) of the definition of Settlement Rate in Section 5.1 will apply on the
Purchase Contract Settlement Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction of which the
numerator shall be the Settlement Rate immediately after such adjustment
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 5.6(a) and the denominator shall be the Settlement Rate immediately
prior to such adjustment; provided, however, that if such adjustment to the
Settlement Rate is required to be made pursuant to the occurrence of any of
the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10)
of this Section 5.6(a) during the period taken into consideration for
determining the Applicable Market Value, appropriate and customary
adjustments shall be made to the Settlement Rate.
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(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable
in order to avoid or diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or for any other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of:
(i) any consolidation or merger of the Company with or into another
Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the shares of Common Stock outstanding
immediately prior to the merger or consolidation are not exchanged for
cash, securities or other property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of the
property of the Company as an entirety or substantially as an entirety;
(iii) any statutory share exchange of the Company with another
Person (other than in connection with a merger or acquisition);
(iv) any liquidation, dissolution or termination of the Company other
than as a result of or after the occurrence of a Termination Event, (any
such event, a "Reorganization Event").
the Settlement Rate will be adjusted to provide that each Holder of Securities
will receive on the Purchase Contract Settlement Date with respect to each
Purchase Contract forming a part thereof, the kind and amount of securities,
cash and other property receivable upon such Reorganization Event (without any
interest thereon, and without any right to dividends or distribution thereon
which have a record date that is prior to the Purchase Contract Settlement Date)
by a Holder of the number of shares of Common Stock issuable on account of each
Purchase Contract if the Purchase Contract Settlement Date had occurred
immediately prior to such Reorganization Event, assuming such Holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization
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Event by each non- electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares).
In the event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets of the
Company or, in the event of a liquidation, dissolution or termination of the
Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that the Holders of each Outstanding Security
shall have the rights provided by this Section 5.6(b). Such supplemental
agreement shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
(c) All calculations and determinations pursuant to this Section 5.6 shall
be made by the Company or its agent and the Purchase Contract Agent shall have
no responsibility with respect thereto.
Section 5.7. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance with
Section 5.6 and prepare and transmit to the Purchase Contract Agent an
Officers' Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event that
requires an adjustment to the Settlement Rate pursuant to Section 5.6 (or
if the Company is not aware of such occurrence, as soon as practicable
after becoming so aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment to the Settlement
Rate was determined and setting forth the adjusted Settlement Rate.
(b) The Purchase Contract Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Purchase Contract Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at the time be issued or delivered with respect to any Purchase Contract;
and the Purchase Contract Agent makes no representation with respect thereto.
The Purchase Contract Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
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Section 5.8. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Purchase Contract
Payments (including any deferred or accrued and unpaid Purchase Contract
Payments), if the Company shall have such obligation, and the rights and
obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, prior to or on the
Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Preferred Securities, the
Debentures, the Treasury Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, forming part of such
Securities, in accordance with the provisions of Section 5.4 of the Pledge
Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at
their addresses as they appear in the Register.
Section 5.9. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") prior to or on the seventh
Business Day immediately preceding the Purchase Contract Settlement Date. In
order to exercise the right to effect Early Settlement with respect to any
Purchase Contracts, the Holder of the Certificate evidencing Securities shall
deliver such Certificates to the Purchase Contract Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and accompanied
by payment (payable to the Company in immediately available funds) in an amount
(the "Early Settlement Amount") equal to:
(i) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(ii) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such Payment Date,
an amount equal to the sum of (x) the Purchase Contract Payments payable on
such Payment Date with respect to such Purchase Contracts plus (y) in the
case of a PEPS Units Certificate, the distributions on the related
Preferred Securities or Debentures payable on such Payment Date.
Except as provided in the immediately preceding sentence and subject to the
second to last paragraph of Section 5.2, no payment shall be made upon Early
Settlement of any Purchase Contract on account of any Purchase Contract Payments
accrued on such Purchase Contract or on account of any dividends on the Common
Stock issued upon such Early Settlement. If the
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foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Securities prior to or at 5:00 p.m. (New York City time) on a
Business Day, such day shall be the "Early Settlement Date" with respect to
such Securities and if such requirements are first satisfied after 5:00 p.m.
(New York City time) on a Business Day or on a day that is not a Business
Day, the "Early Settlement Date" with respect to such Securities shall be the
next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Company shall issue, and the Holder shall be entitled to receive
_______ shares of Common Stock on account of each Purchase Contract as to which
Early Settlement is effected (the "Early Settlement Rate"). The Early Settlement
Rate shall be adjusted in the same manner and at the same time as the Settlement
Rate is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(i) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment in
lieu of any fraction of a share, as provided in Section 5.11; and
(ii) the related Preferred Securities, Debentures or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, in the case of PEPS Units, or the
related Treasury Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, in the case of Treasury PEPS Units, to be released from
the Pledge by the Collateral Agent and transferred, in each case, to the
Purchase Contract Agent for delivery to the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Preferred Securities,
Debentures, the appropriate Applicable Ownership Interest as specified in clause
(A) of the definition of such term) of the Treasury Portfolio, or Treasury
Securities, as the case may be, from the Securities Intermediary, as applicable,
the Purchase Contract Agent shall, in accordance with the instructions provided
by the Holder thereof on the applicable form of Election to Settle Early on the
reverse of the Certificate evidencing the related Securities:
(i) transfer to the Holder the Preferred Securities, Dentures, the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio or Treasury
Securities, as the case may be, forming a part of such Securities; and
(ii) deliver to the Holder a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement,
together with payment in lieu of any fraction of a share, as provided in
Section 5.11.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the
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Company shall execute and the Purchase Contract Agent shall authenticate,
countersign and deliver to the Holder thereof, at the expense of the Company,
a Certificate evidencing the Securities as to which Early Settlement was not
effected.
(f) A Holder of a Security who effects Early Settlement may elect to have
the Preferred Securities or Debentures, as the case may be, no longer a part of
a PEPS Unit, or Treasury PEPS Unit, as the case my be, remarketed. A Holder
making such an election must notify the Property Trustee prior to 11:00 a.m.
(New York City time) on the fifth Business Day immediately preceding
_____________________, of the aggregate number of Preferred Securities or
Debentures that are not part of PEPS Units or Treasury PEPS Units, as the case
may be, to be remarketed. Any such notice will be irrevocable and may not be
conditioned upon the level at which the Reset Rate is established in the
Remarketing. Concurrently, the Property Trustee shall cause such Preferred
Securities or Debentures, as the case may be, to be presented to the Remarketing
Agent for Remarketing.
Section 5.10. Intentionally Omitted.
Section 5.11. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Purchase Contract Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
times the Applicable Market Value. The Company shall provide the Purchase
Contract Agent from time to time with sufficient funds to permit the Purchase
Contract Agent to make all cash payments required by this Section 5.11 in a
timely manner.
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Section 5.12. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable to
the initial issuance and delivery of the shares of Common Stock pursuant to the
Purchase Contracts; provided, however, that the Company shall not be required to
pay any such tax or taxes which may be payable in respect of any exchange of or
substitution for a Certificate evidencing a Security or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a
Certificate surrendered in respect of the Securities evidenced thereby, other
than in the name of the Purchase Contract Agent, as custodian for such Holder,
and the Company shall not be required to issue or deliver such share
certificates or Certificates unless or until the Person or Persons requesting
the transfer or issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract
Payments and to Purchase Shares of Common Stock.
Each Holder of a PEPS Unit or Treasury PEPS Unit shall have the right,
which is absolute and unconditional, (1) subject to the payment by such Holder
of Purchase Contract Payments pursuant to Section 5.9(a), to receive each
Purchase Contract Payment with respect to the Purchase Contract constituting a
part of such Security on the respective Payment Date for such Security,
provided, however, that a Holder will have no right to receive any accrued
deferred Purchase Contract Payments if he effects an Early Settlement or if a
Termination Event shall occur and (2) to purchase shares of Common Stock
pursuant to such Purchase Contract and, in each such case, to institute suit for
the enforcement of any such Purchase Contract Payment and right to purchase
shares of Common Stock, and such rights shall not be impaired without the
consent of such Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or remedy
under this Agreement and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of such Holder shall continue
as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.10, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in
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equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver
No delay or omission of any Holder to exercise any right or remedy upon a
default shall impair any such right or remedy or constitute a waiver of any such
right. Every right and remedy given by this Article or by law to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a PEPS Unit or a
Treasury PEPS Unit, by its acceptance of such PEPS Unit or Treasury PEPS Unit
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Agreement, or in
any suit against the Purchase Contract Agent for any action taken, suffered or
omitted by it as Purchase Contract Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided
that the provisions of this Section shall not apply to any suit instituted by
the Company, to any suit instituted by the Purchase Contract Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of distributions on any Preferred Securities or Purchase
Contract Payments on any Purchase Contract on or after the respective Payment
Date therefor in respect of any Security held by such Holder, or for enforcement
of the right to purchase shares of Common Stock under the Purchase Contracts
constituting part of any Security held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
The Purchase Contract Agent
Section 7.1. Certain Duties and Responsibilities.
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(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the Securities, such
duties and only such duties as are specifically set forth in this Agreement
and the Pledge Agreement, and no implied covenants or obligations shall be
read into this Agreement or the Pledge Agreement against the Purchase
Contract Agent; and
(2) in the absence of bad faith or negligence on its part, may, with
respect to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Purchase Contract Agent and
conforming to the requirements of this Agreement or the Pledge Agreement,
as applicable, but in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Purchase
Contract Agent, the Purchase Contract Agent shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Agreement or the Pledge Agreement, as applicable.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Purchase Contract Agent from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Purchase Contract Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Purchase Contract Agent was negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement or the Pledge Agreement shall
require the Purchase Contract Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if
adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision of this
Agreement and the Pledge Agreement relating to the conduct or affecting the
liability of or affording protection to the Purchase Contract Agent shall be
subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and deliver the
Pledge Agreement in its capacity as Purchase Contract Agent.
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Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Company hereunder
of which a Responsible Officer of the Purchase Contract Agent has actual
knowledge, the Purchase Contract Agent shall transmit by mail to the Company and
the Holders of Securities, as their names and addresses appear in the Register,
notice of such default hereunder, unless such default shall have been cured or
waived.
Section 7.3. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract Agent may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Agreement or the Pledge
Agreement the Purchase Contract Agent shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any action
hereunder, the Purchase Contract Agent (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Purchase Contract Agent 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 Purchase Contract Agent,
in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the
Purchase Contract Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or an Affiliate and the Purchase Contract Agent shall
not be responsible for any misconduct or
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negligence on the part of any agent or attorney or an Affiliate appointed
with due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Company, and the Purchase Contract Agent assumes no
responsibility for their accuracy. The Purchase Contract Agent makes no
representations as to the validity or sufficiency of either this Agreement or of
the Securities, or of the Pledge Agreement or the Pledge. The Purchase Contract
Agent shall not be accountable for the use or application by the Company of the
proceeds in respect of the Purchase Contracts.
Section 7.5. May Hold Securities.
Any Registrar or any other agent of the Company, or the Purchase Contract
Agent and its Affiliates, in their individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company, the
Collateral Agent or any other Person with the same rights it would have if it
were not Registrar or such other agent, or the Purchase Contract Agent.
Section 7.6. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law or provided
herein. The Purchase Contract Agent shall be under no obligation to invest or
pay interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder and under the Pledge Agreement as the
Company and the Purchase Contract Agent shall from time to time agree in
writing;
(2) except as otherwise expressly provided for herein, to reimburse
the Purchase Contract Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Purchase Contract Agent
in accordance with any provision of this Agreement and the Pledge Agreement
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent for, and to hold it 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
its duties hereunder, including the costs and expenses of
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defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be an Purchase Contract Agent hereunder which
shall be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having (or being a member of
a bank holding company having) a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State authority
and having a corporate trust office in the Borough of Manhattan, New York City,
if there be such a corporation in the Borough of Manhattan, New York City,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Purchase Contract Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving written
notice thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Purchase Contract
Agent required by Section 7.10 shall not have been delivered to the Purchase
Contract Agent within 30 days after the giving of such notice of resignation,
the resigning Purchase Contract Agent may petition any court of competent
jurisdiction for the appointment of a successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of the
Holders of a majority in number of the Outstanding Securities delivered to the
Purchase Contract Agent and the Company.
(d) If at any time:
(1) the Purchase Contract Agent fails to comply with Section 310(b)
of the TIA, as if the Purchase Contract Agent were an indenture trustee
under an indenture qualified under the TIA, after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months;
(2) the Purchase Contract Agent shall cease to be eligible under
Section 7.8 and shall fail to resign after written request therefor by the
Company or by any such Holder; or
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(3) the Purchase Contract Agent shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Purchase
Contract Agent or of its property shall be appointed or any public officer
shall take charge or control of the Purchase Contract Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Purchase Contract Agent and the appointment of a successor Purchase
Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Purchase
Contract Agent for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Purchase Contract Agent and shall comply with the applicable
requirements of Section 7.10. If no successor Purchase Contract Agent shall
have been so appointed by the Company and accepted appointment in the manner
required by Section 7.10, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase Contract
Agent by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the applicable
Register. Each notice shall include the name of the successor Purchase Contract
Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Purchase Contract
Agent, every such successor Purchase Contract Agent so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Purchase Contract
Agent an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Purchase Contract Agent shall become effective and such
successor Purchase Contract Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Purchase Contract Agent; but, on the request of the Company or the
successor Purchase Contract Agent, such retiring Purchase Contract Agent shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Purchase Contract Agent all the rights, powers and trusts of the
retiring Purchase Contract Agent and shall duly assign, transfer and deliver to
such successor Purchase Contract Agent all property and money held by such
retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Purchase Contract Agent all such
rights, powers and agencies referred to in paragraph (a) of this Section.
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(c) No successor Purchase Contract Agent shall accept its appointment
unless at the time of such acceptance such successor Purchase Contract Agent
shall be qualified and eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Purchase Contract Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Purchase Contract
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Purchase Contract Agent, shall be the
successor of the Purchase Contract Agent hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, with the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Certificates shall have been authenticated and executed on
behalf of the Holders, but not delivered, by the Purchase Contract Agent then in
office, any successor by merger, conversion or consolidation to such Purchase
Contract Agent may adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Purchase Contract Agent had itself authenticated and executed such
Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Purchase Contract Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Purchase Contract Agent, and furnish to the Purchase Contract
Agent reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Purchase Contract Agent shall mail to
all the Holders copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Purchase Contract Agent of the materials to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this Agreement, the
Purchase Contract Agent assumes no obligations and shall not be subject to any
liability under this Agreement, the Pledge Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The
Company agrees, and each Holder of a Certificate, by his acceptance thereof,
shall be deemed to have agreed, that the Purchase Contract Agent's execution of
the Certificates on behalf of the Holders shall be solely as agent and attorney-
in-fact for the Holders, and that the Purchase Contract Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders, except
to the extent expressly provided in Article Five hereof. Anything contained in
this Agreement to the contrary notwithstanding, in no
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event shall the Purchase Contract Agent or its officers, employees or agents
be liable under this Agreement to any third party for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including
lost profits, whether or not the likelihood of such loss or damage was known
to the Purchase Contract Agent, incurred without any act or deed that is
found to be attributable to gross negligence or willful misconduct on the
part of the Purchase Contract Agent.
Section 7.14. Tax Compliance.
(a) The Company will comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements imposed
by applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the preparation
and timely filing of required returns and the timely payment of all amounts
required to be withheld to the appropriate taxing authority or its designated
agent.
(b) The Purchase Contract Agent shall comply in accordance with the terms
hereof with any written direction received from the Company with respect to the
execution or certification of any required documentation and the application of
such requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such direction
in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available, on written request, to the Company or its authorized representative
within a reasonable period of time after receipt of such request.
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Purchase Contract
Agent, at any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Purchase
Contract Agent, to:
(1) evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and
in the Certificates;
(2) evidence and provide for the acceptance of appointment hereunder
by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company;
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(4) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); or
(5) except as provided for in Section 5.6, cure any ambiguity,
correct or supplement any provisions herein which may be inconsistent with
any other provisions herein, or make any other provisions with respect to
such matters or questions arising under this Agreement, provided such
action shall not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Securities; provided,
however, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each outstanding Purchase
Contract affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral (except for the rights of Holders
of PEPS Units to substitute Treasury Securities for the Pledged Preferred
Securities or Pledged Debentures or the Applicable Ownership Interest of
the Treasury Portfolio or the rights of Holders or Treasury PEPS Units to
substitute Preferred Securities, Debentures or the Applicable Ownership
Interest of the Treasury Portfolio for the Pledged Treasury Securities) or
otherwise adversely affect the Holder's rights in or to such Collateral or
adversely alter the rights in or to such Collateral;
(3) reduce any Purchase Contract Payments or change any place where,
or the coin or currency in which, any Purchase Contract Payment is payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Purchase
Contract Settlement Date or otherwise adversely affect the Holder's rights
under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the PEPS Units or the Treasury PEPS Units, then only the affected
class of Holders as of the record
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date for the Holders entitled to vote thereon will be entitled to vote on
such amendment or proposal, and such amendment or proposal shall not be
effective except with the consent of Holders of not less than a majority of
such class; and provided, further, that the unanimous consent of the Holders
of each outstanding Purchase Contract of such class affected thereby shall be
required to approve any amendment or proposal specified in clauses (1)
through (6) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Purchase Contract Agent shall be
provided, and (subject to Section 7.1) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article, this
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any supplemental agreement pursuant to this Article may,
and shall if required by the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent as to any matter provided for in such
supplemental agreement. If the Company shall so determine, new Certificates so
modified as to conform, in the opinion of the Purchase Contract Agent and the
Company, to any such supplemental agreement may be prepared and executed by the
Company and authenticated, executed on behalf of the Holders and delivered by
the Purchase Contract Agent in exchange for Outstanding Certificates.
ARTICLE IX
Merger, Consolidation, Share Exchange, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange,
Sell or Convey Property Except Under Certain Conditions.
The Company covenants that it will not merge, consolidate or enter into a
share exchange with any other Person or sell, assign, transfer, lease or convey
all or substantially all of its properties and assets to any Person or group of
affiliated Persons in one transaction or a series of related transactions,
unless:
(i) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof
or the District of Columbia and such corporation shall expressly assume all
the obligations of the Company under the Purchase Contracts, this Agreement
and the
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Pledge Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Purchase Contract Agent and the Collateral
Agent, executed and delivered to the Purchase Contract Agent and the
Collateral Agent by such corporation; and
(ii) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger, consolidation or share exchange,
or such sale, assignment, transfer, lease or conveyance, be in default in
the performance of any covenant or condition hereunder, under any of the
Securities or under the Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance and upon any such assumption by a
successor corporation in accordance with Section 9.1, such successor corporation
shall succeed to and be substituted for the Company with the same effect as if
it had been named herein as the Company. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
UtiliCorp United Inc., any or all of the Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Purchase Contract Agent; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Purchase
Contract Agent for that purpose. All the Certificates issued shall in all
respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance such change in phraseology and form
(but not in substance) may be made in the Certificates evidencing Securities
thereafter to be issued as may be appropriate.
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Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase
Contract Agent.
The Purchase Contract Agent, subject to Sections 7.1 and 7.3, shall receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any such merger, consolidation, share exchange, sale, assignment, transfer,
lease or conveyance, and any such assumption, complies with the provisions of
this Article and that all conditions precedent to the consummation of any such
merger, consolidation, share exchange, sale, assignment, transfer, lease or
conveyance have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from time
to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, New York City an
office or agency where Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement of the Purchase Contracts
on the Purchase Contract Settlement Date or Early Settlement and for transfer of
Collateral upon occurrence of a Termination Event, where Certificates may be
surrendered for registration of transfer or exchange, for a Collateral
Substitution or reestablishment of PEPS Units and where notices and demands to
or upon the Company in respect of the Securities and this Agreement may be
served. The Company will give prompt written notice to the Purchase Contract
Agent of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Purchase Contract Agent with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office, and the Company hereby appoints the
Purchase Contract Agent as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, New York City for such purposes. The Company will give prompt
written notice to the Purchase Contract Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Securities the
Corporate Trust Office and appoints the Purchase Contract Agent at its Corporate
Trust Office as paying agent in such city.
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Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract Settlement
Date reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock the full number of shares of Common Stock
issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of any Purchase Contract constituting a
part of the Outstanding Securities will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within 140 days
after the end of each fiscal year of the Company (which as of the date hereof is
December 31) ending after the date hereof, an Officers' Certificate (one of the
signers of which shall be the principal executive officer, principal financial
officer or principal accounting officer of the Company), stating whether or not
to the knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
hereof, and if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
Section 10.6. ERISA.
Each Holder from time to time of the PEPS Units which is a Plan hereby
represents that its acquisition of the PEPS Units and the holding of the same
satisfies the applicable fiduciary requirements of ERISA and that it is entitled
to exemption relief from the prohibited transaction provisions of ERISA and the
Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
UTILICORP UNITED INC.
By:__________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
As Purchase Contract Agent
By:__________________________
Name:
Title:
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EXHIBIT A
FACE OF PEPS UNITS CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER
THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
No. _______ Cusip No. ______________
Number of PEPS Units ________
UTILICORP UNITED INC.
UCU CAPITAL TRUST I
PEPS UNITS
This PEPS Units Certificate certifies that Cede & Co. is the registered
Holder of the number of PEPS Units set forth above. Each PEPS Unit consists of
(i) either (a) the beneficial ownership by the Holder of one Preferred Security
(the "Preferred Security") of UCU Capital Trust I, a Delaware statutory business
trust (the "Trust"), having a stated liquidation amount of $25, subject to the
Pledge of such Preferred Security by such Holder pursuant to the Pledge
Agreement, or (b) upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio by such Holder pursuant to the Pledge Agreement, and (ii) the rights
and obligations of the Holder under one Purchase Contract with UtiliCorp United
Inc., a Delaware corporation (the "Company"). All capitalized terms used
<PAGE>
herein which are defined in the Purchase Contract Agreement (as defined on
the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be,
constituting part of each PEPS Unit evidenced hereby has been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations of
the Holder under the Purchase Contract comprising part of such PEPS Unit.
The Pledge Agreement provides that all payments of the liquidation amount
with respect to any of the Pledged Preferred Securities or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, as the case may be, or cash distributions
on any Pledged Preferred Securities (as defined in the Pledge Agreement) or the
appropriate Applicable Ownership Interest (as specified in clause (B) of the
definition of such term) of the Treasury Portfolio, as the case may be,
constituting part of the PEPS Units received by the Securities Intermediary
shall be paid by wire transfer in same day funds (i) in the case of (A) cash
distributions with respect to Pledged Preferred Securities or the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition of
such term) of the Treasury Portfolio, as the case may be, and (B) any payments
of the liquidation amount with respect to any Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, that
have been released from the Pledge pursuant to the Pledge Agreement, to the
Agent to the account designated by the Agent, no later than 2:00 p.m., New York
City time, on the Business Day such payment is received by the Securities
Intermediary (provided that in the event such payment is received by the
Securities Intermediary on a day that is not a Business Day or after 12:30 p.m.,
New York City time, on a Business Day, then such payment shall be made no later
than 10:30 a.m., New York City time, on the next succeeding Business Day) and
(ii) in the case of payments of the liquidation amount with respect to any of
the Pledged Preferred Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, to the Company on the Purchase Contract Settlement Date (as
described herein) in accordance with the terms of the Pledge Agreement, in full
satisfaction of the respective obligations of the Holders of the PEPS Units of
which such Pledged Preferred Securities or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, are a part under the Purchase Contracts forming a
part of such PEPS Units. Distributions on any Preferred Security or the
appropriate Applicable Ownership Interest (as specified in clause (B) of the
definition of such term) of the Treasury Portfolio, as the case may be, forming
part of a PEPS Unit evidenced hereby, which are payable quarterly in arrears on
February 16, May 16, August 16, and November 16 of each year, commencing
November 16, 1999 (a "Payment Date"), shall, subject to receipt thereof by the
Agent from the Securities Intermediary, be paid to the Person in whose name this
PEPS Unit Certificate (or a Predecessor PEPS Unit Certificate) is registered at
the close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this PEPS
Units Certificate to purchase, and the Company to sell, on August, 16, 2002 (the
"Purchase Contract Settlement Date"), at a price equal to $25 (the "Stated
Amount"), a number of shares of Common Stock, $1.00 par value ("Common Stock"),
of the Company, equal to the Settlement Rate, unless
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on or prior to the Purchase Contract Settlement Date there shall have such
occurred a Termination Event or an Early Settlement with respect to the PEPS
Unit of which such Purchase Contract is a part, all as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.
The purchase price (the "Purchase Price") for the shares of Common Stock
purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by separate
cash or by application of payment received in respect of the liquidation
amount with respect to any Pledged Preferred Securities pursuant to the
Remarketing or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as the
case may be, pledged to secure the obligations under such Purchase Contract
of the Holder of the PEPS Unit of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each Purchase
Contract forming part of a PEPS Unit evidenced hereby, an amount (the "Purchase
Contract Payments") equal to __% per annum of the Stated Amount. Such Purchase
Contract Payments shall be payable to the Person in whose name this PEPS Units
Certificate (or a Predecessor PEPS Units Certificate) is registered at the close
of business on the Record Date for such Payment Date. The Company may, at its
option, defer Purchase Contract Payments.
Distributions on the Preferred Securities and Purchase Contract Payments
will be payable at the office of the Purchase Contract Agent in New York City
or, at the option of the Company, by check mailed to the address of the Person
entitled thereto as such address appears on the PEPS Units Register. Reference
is hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.
Unless the certificate of authentication hereon has been executed by the
Purchase Contract Agent by manual signature, this PEPS Units Certificate shall
not be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
UTILICORP UNITED INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: THE CHASE MANHATTAN BANK, not
individually but solely as
Attorney-in-Fact of such Holder
By: ________________________________
Name:
Title:
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<PAGE>
CERTIFICATE OF AUTHENTICATION
OF PURCHASE CONTRACT AGENT
This is one of the PEPS Units Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: THE CHASE MANHATTAN BANK, as
Purchase Contract Agent
By: ____________________________________
Authorized Officer
Dated:
A-5
<PAGE>
(FORM OF REVERSE OF PEPS UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of September __, 1999 (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and The Chase
Manhattan Bank, as Purchase Contract Agent (including its successors hereunder,
the "Purchase Contract Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Purchase Contract Agent, the Company, and the Holders and of
the terms upon which the PEPS Units Certificates are, and are to be, executed
and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this PEPS
Units Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount (the "Purchase Price"), a
number of shares of Common Stock equal to the Settlement Rate, unless, prior to
or on the Purchase Contract Settlement Date, there shall have occurred a
Termination Event with respect to the Security of which such Purchase Contract
is a part or an Early Settlement shall have occurred. The "Settlement Rate" is
equal to:
(1) if the Applicable Market Value (as defined below) is equals or
exceeds $_________ (the "Threshold Appreciation Price"), _______ shares of
Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $_______ (the "Reference Price"), the
number of shares of Common Stock per Purchase Contract having a value,
based on the Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Amount is less than or equal to the
Reference Price, ________ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.11 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
PEPS Unit to purchase at the Purchase Price, and the Company to sell, a number
of shares of Common Stock equal to the Early Settlement Rate or the Settlement
Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share on the New York Stock Exchange, Inc.
(the "NYSE") on such date;
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<PAGE>
(2) if Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
Common Stock is so listed;
(3) if Common Stock is not so listed on a United States national or
regional securities exchange, the closing sale price per share as reported
by The Nasdaq Stock Market, Inc.;
(4) if Common Stock is not so reported, the last quoted bid price for
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of Common Stock on such date from at least
three nationally recognized independent investment banking firms retained
for this purpose by the Company.
A "Trading Day" means a day on which Common Stock (1) is not suspended from
trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (2) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of Common
Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this PEPS Units Certificate may pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby by effecting a Cash Settlement or an Early Settlement or from the
proceeds of the Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio or a Remarketing of
the related Pledged Preferred Securities. A Holder of PEPS Units who does
not effect, on or prior to 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding August 16, 2002 (or in the event a Tax
Event Redemption has occurred, the Business Day prior to the Purchase
Contract Settlement Date), an effective Cash Settlement or an Early
Settlement, shall pay the Purchase Price for the shares of Common Stock to be
delivered under the related Purchase Contract from the proceeds of the sale
of the related Pledged Preferred Securities held by the Collateral Agent.
Such sale will be made by the Remarketing Agent pursuant to the terms of the
Remarketing Agreement on the third Business Day prior to Remarketing
Settlement Date. If, as provided in the Purchase Contract Agreement, upon
the occurrence of a Failed Remarketing, the Collateral Agent, for the benefit
of the Company, exercises its rights as a secured creditor with respect to
the Pledged Preferred Securities related to this PEPS Units certificate, any
accrued and unpaid distributions on such Pledged Preferred Securities will
become payable by the Company to the holder of this PEPS Units Certificate in
the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
A-7
<PAGE>
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the PEPS Unit Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Preferred
Security or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio forming a
part of each PEPS Unit from the Pledge. A PEPS Unit shall thereafter represents
the right to receive the Preferred Security or the appropriate Applicable
Ownership Interest of the Treasury Portfolio forming a part of such PEPS Unit in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Under the terms of the Pledge Agreement, the Purchase Contract Agent will
be entitled to exercise the voting and any other consensual rights pertaining to
the Pledged Preferred Securities. Upon receipt of notice of any meeting at
which holders of Preferred Securities are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Preferred Securities,
the Purchase Contract Agent shall, as soon as practicable thereafter, mail to
the PEPS Units Holders a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each PEPS Unit Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall be
the same date as the record date for determining the holders of Preferred
Securities entitled to vote) shall be entitled to instruct the Purchase
Contract Agent as to the exercise of the voting rights pertaining to the
Preferred Securities constituting a part of such Holder's PEPS Unit; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the PEPS Unit Holders on such record date, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests, the
maximum number of Preferred Securities as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a PEPS Unit, the Purchase Contract Agent shall abstain from voting the
Preferred Security evidenced by such PEPS Unit.
Upon the liquidation of the Trust, a principal amount of the Subordinated
Debentures constituting the assets of the Trust and underlying the Preferred
Securities equal to the aggregate liquidation amount of the Pledged Preferred
Securities shall be delivered to the Securities Intermediary in exchange for the
Pledged Preferred Securities. Thereafter, the Subordinated Debentures shall be
held by the Securities Intermediary to secure the obligations of each Holder of
PEPS Units to purchase shares of Common Stock under the Purchase Contracts
constituting a part of such PEPS Units. Following the liquidation of the Trust,
the Holders and the Collateral Agent shall have such security interests, rights
and obligations with respect to the Subordinated Debentures as the Holders and
the Collateral Agent had in respect of the Pledged Preferred Securities, any
reference herein to the Preferred Securities shall be deemed to be a reference
to the Subordinated Debentures and any reference herein to the liquidation
amount of the Preferred
A-8
<PAGE>
Securities shall be deemed to be a reference to the principal amount of the
Subordinated Debentures.
Upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Redemption Price payable on the Tax Event
Redemption Date with respect to the Applicable Principal Amount of Subordinated
Debentures shall be delivered to the Securities Intermediary in exchange for the
Pledged Preferred Securities. Thereafter, pursuant to the terms of the Pledge
Agreement, the Securities Intermediary will apply an amount equal to the
Redemption Amount of such Redemption Price to purchase, the Treasury Portfolio
and promptly (a) transfer the Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio to the
Collateral Account to secure the obligations of each Holder of PEPS Units to
purchase shares of Common Stock under the Purchase Contracts constituting a part
of such PEPS Units, (b) transfer the Applicable Ownership Interest (as specified
in clause (B) of the definition of such term) of the Treasury Portfolio to the
Agent for the benefit of the Holders of such PEPS Units and (iii) remit the
remaining portion of such Redemption Price to the Agent for payment to the
Holders of such PEPS Units.
Following the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Holders of PEPS Units and the Collateral Agent
shall have such security interest rights and obligations with respect to the
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio as the Holder of PEPS Units and the
Collateral Agent had in respect of the Preferred Securities or Subordinated
Debentures, as the case may be, subject to the Pledge thereof as provided in
Articles II, III, IV, V and VI, of the Pledge Agreement and any reference herein
to the Preferred Securities shall be deemed to be a reference to such Treasury
Portfolio.
The PEPS Certificates are issuable only in registered form and only in
denominations of a single PEPS Unit and any integral multiple thereof. The
transfer of any PEPS Units Certificate will be registered and PEPS Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The PEPS Units Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Purchase Contract
Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Preferred Securities, thereby creating
Treasury PEPS Units, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement, for
so long as the Purchase Contract underlying a PEPS Unit remains in effect, such
PEPS Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such PEPS Unit in respect of the Preferred
Securities and Purchase Contract constituting such PEPS Unit may be transferred
and exchanged only as a PEPS Unit.
The Holder of PEPS Units may substitute for the Pledged Preferred
Securities securing such Holder's obligations under the related Purchase
Contracts Treasury Securities in an aggregate principal amount equal to the
aggregate liquidation amount of the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio in accordance with the terms
of the Purchase
A-9
<PAGE>
Contract Agreement and the Pledge Agreement. From and after such Collateral
Substitution, each Security for which such Pledged Treasury Securities
secures the Holder's obligation under the Purchase Contract shall be referred
to as a "Treasury PEPS Unit". A Holder may make such Collateral Substitution
only in integral multiples of 40 PEPS Units for 40 Treasury PEPS Units. Such
Collateral Substitution may cause the equivalent aggregate principal amount
of this Certificate to be increased or decreased; provided, however, this
PEPS Units Certificate shall not represent more than _________ PEPS Units.
All such adjustments to the equivalent aggregate principal amount of this
PEPS Units Certificate shall be duly recorded by placing an appropriate
notation on the Schedule attached hereto.
A Holder of Treasury PEPS Units may recreate PEPS Units by delivering to
the Securities Intermediary Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, with an aggregate liquidation amount, in the case of
such Preferred Securities, or with the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, in the case of such appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, equal to the aggregate principal amount of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Company shall pay, on each Payment Date, the Purchase Contract Payments
payable in respect of each Purchase Contract to the Person in whose name the
PEPS Units Certificate evidencing such Purchase Contract is registered at the
close of business on the Record Date for such Payment Date. Purchase Contract
Payments will be payable at the office of the Purchase Contract Agent in New
York City or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the PEPS Units
Register.
The Company has the right to defer payment of all or part of the Purchase
Contract Payments in respect of each Purchase Contract until no later than the
Purchase Contract Settlement Date. If the Company so elects to defer Purchase
Contract Payments, the Company shall pay additional Purchase Contract Payments
on such deferred installments of Purchase Contract Payments at a rate equal to
____% per annum, compounding quarterly, until such deferred installments are
paid. If a Holder effects an Early Settlement or if a Termination Event shall
occur, such Holder will have no right to receive any accrued and unpaid or
deferred Purchase Contract Payments. The Purchase Contracts and all obligations
and rights of the Company and the Holders thereunder, including, without
limitation, the rights of the Holders to receive and the obligation of the
Company to pay any Purchase Contract Payments, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, on or prior to the
Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon the occurrence of a Termination Event, the Company shall promptly but in no
event later than two Business Days thereafter give written notice to the
Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the PEPS Units Register. Upon and after the
A-10
<PAGE>
occurrence of a Termination Event, the Collateral Agent shall release the
Preferred Securities or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, from the Pledge in accordance with the provisions
of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
PEPS Units Certificate, the Holder of this PEPS Units Certificate shall
deliver this PEPS Units Certificate to the Purchase Contract Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of immediately available funds payable to
the order of the Company in an amount (the "Early Settlement Amount") equal
to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Purchase Contract Payments payable on such Payment Date with
respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Preferred Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, as the case may be, underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a PEPS Unit as to which Early Settlement
is effected equal to the Early Settlement Rate. The Early Settlement Rate shall
initially be equal to _____ shares of Common Stock and shall be adjusted in the
same manner and at the same time as the Settlement Rate is adjusted as provided
in the Purchase Contract Agreement.
Upon registration of transfer of this PEPS Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this PEPS Units Certificate. The Company covenants and agrees, and
the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound
by the provisions of this paragraph.
The Holder of this PEPS Units Certificate, by its acceptance hereof,
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contracts forming part of
A-11
<PAGE>
the PEPS Units evidenced hereby on its behalf as its attorney-in-fact,
expressly withholds any consent to the assumption (i.e., affirmance) of the
Purchase Contracts by the Company or its trustee in the event that the
Company becomes the subject of a case under the Bankruptcy Code, agrees to be
bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of
the Purchase Contract Agreement, authorizes the Purchase Contract Agent to
enter into and perform the Purchase Contract Agreement and the Pledge
Agreement on its behalf as its attorney-in-fact, and consents to the Pledge
of the Preferred Securities or the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, underlying this PEPS Units Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees
that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect to the aggregate liquidation amount of the Pledged
Preferred Securities or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, on the Purchase Contract Settlement Date shall
be paid by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall be governed by, and construed in accordance
with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and any agent
of the Company or the Purchase Contract Agent may treat the Person in whose name
this PEPS Units Certificate is registered as the owner of the PEPS Units
evidenced hereby for the purpose of receiving payments of distributions payable
quarterly on the Preferred Securities, receiving payments of Purchase Contract
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the
Purchase Contract Agent nor any such agent shall be affected by notice to the
contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Purchase Contract Agent.
A-12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: ________________ Custodian _____________________
(cust) (minor)
Under Uniform Gifts to Minors Act of __________
________________________________________________
TEN ENT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
_______________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within PEPS Units Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney to transfer said PEPS Units Certificates on
the books of UtiliCorp United Inc. with full power of substitution in the
premises.
Dated:___________________ __________________________________
Signature
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within PEPS Units
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee:_______________________________
A-13
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of PEPS Units evidenced by
this PEPS Units Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated:_________________________ _______________________________
Signature
Signature Guarantee:___________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person other REGISTERED HOLDER
than the Holder, please (i) print such
Person's name and address and (ii)
provide a guarantee of your signature: Please print name and address
of Registered Holder:
_______________________________ _______________________________
Name Name
_______________________________ _______________________________
Address Address
_______________________________ _______________________________
_______________________________ _______________________________
_______________________________ _______________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________________
A-14
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this PEPS Units Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of PEPS Units evidenced by this PEPS Units Certificate
specified below. The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon such Early Settlement be registered in the name
of, and delivered, together with a check in payment for any fractional share and
any PEPS Units Certificate representing any PEPS Units evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
deliverable upon such Early Settlement will be transferred in accordance with
the transfer instructions set forth below. If shares are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated:______________________________ _________________________________
Signature
Signature Guarantee:________________________________
A-15
<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or REGISTERED HOLDER
PEPS Units Certificates are
to be registered in the name of and
delivered to and Pledged Preferred Securities,
or the Applicable Ownership Interest of the
Treasury Portfolio, as the case may be,
are to be transferred to a Person other
than the Holder, please print such Person's
name and address:
Please print name and address
of Registered Holder:
_______________________________ ____________________________
Name Name
_______________________________ ____________________________
Address Address
_______________________________ ____________________________
_______________________________ ____________________________
_______________________________ ____________________________
Social Security or other
Taxpayer Identification
Number, if any ____________________________
A-16
<PAGE>
Transfer Instructions for Pledged Preferred Securities or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, Transferable
Upon Early Settlement or a Termination Event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
A-17
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
===============================================================================
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Amount of decrease in Amount of decrease in Number of PEPS Units
Number of PEPS Units Number of PEPS Units evidenced by this Global Signature of authorized
evidenced by the Global evidenced by the Global Certificate following such officer of Trustee or
Date Certificate Certificate decrease or increase Securities Custodian
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
</TABLE>
A-18
<PAGE>
EXHIBIT B
FACE OF TREASURY PEPS CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
No. _____ Cusip No.____________________
Number of Treasury PEPS Units _________
UTILICORP UNITED INC.
UCU CAPITAL TRUST I
TREASURY PEPS UNITS
This Treasury PEPS Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Treasury PEPS Units set forth above. Each
Treasury PEPS Unit consists of (i) a 1/40 undivided beneficial ownership
interest of a Treasury Security having a principal amount at maturity equal to
$1,000, subject to the Pledge of such Treasury Security by such Holder pursuant
to the Pledge Agreement, and (ii) the rights and obligations of the Holder under
one Purchase Contract with UtiliCorp United Inc., a Delaware corporation (the
"Company"). All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined on the reverse hereof) have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting part
of each Treasury PEPS Unit evidenced hereby have been pledged to the Collateral
Agent, for the benefit
<PAGE>
of the Company, to secure the obligations of the Holder under the Purchase
Contract comprising part of such Treasury PEPS Unit. Each Purchase Contract
evidenced hereby obligates the Holder of this Treasury PEPS Units Certificate
to purchase, and the Company, to sell, on the Purchase Contract Settlement
Date, at a price equal to $25 (the "Stated Amount"), a number of shares of
Common Stock, $1.00 par value ("Common Stock") of the Company, equal to the
Settlement Rate, unless prior to or on the Purchase Contract Settlement Date
there shall have occurred a Termination Event or an Early Settlement with
respect to the Treasury PEPS Unit of which such Purchase Contract is a part,
all as provided in the Purchase Contract Agreement and more fully described
on the reverse hereof. The purchase price (the "Purchase Price") for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby, if not paid earlier, shall be paid on the Purchase Contract
Settlement Date by application of the proceeds from the Treasury Securities
at maturity pledged to secure the obligations of the Holder under such
Purchase Contract of the Treasury PEPS Unit of which such Purchase Contract
is a part.
The Company shall pay, quarterly in arrears on February 16, May 16, August
16 and November 16, commencing November 16, 1999 (each, a "Payment Date"), in
respect of each Purchase Contract evidenced hereby an amount (the "Purchase
Contract Payments") equal to .% per annum of the Stated Amount. Such Purchase
Contract Payments shall be payable to the Person in whose name this Treasury
PEPS Units Certificate (or a Predecessor Treasury PEPS Units Certificate) is
registered at the close of business on the Record Date for such Payment Date.
The Company may, at its option, defer Purchase Contract Payments.
Purchase Contract Payments will be payable at the office of the Purchase
Contract Agent in New York City or, at the option of the Company, by check
mailed to the address of the Person entitled thereto as such address appears on
the Treasury PEPS Units Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Purchase Contract Agent by manual signature, this Treasury PEPS Units
Certificate shall not be entitled to any benefit under the Pledge Agreement or
the Purchase Contract Agreement or be valid or obligatory for any purpose.
B-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
UTILICORP UNITED INC.
By:__________________
Name:
Title:
By:__________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts)
By: THE CHASE MANHATTAN BANK,
not individually but solely
as Attorney-in-Fact of such
Holder
By:__________________
Name:
Title:
Dated:
B-3
<PAGE>
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury PEPS Units referred to in the within-mentioned
Purchase Contract Agreement.
By: THE CHASE MANHATTAN BANK, as Purchase
Contract Agent
By:_____________________________________
Authorized Officer
Dated:
B-4
<PAGE>
(REVERSE OF TREASURY PEPS UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of September ___, 1999 (as may be supplemented from time to
time, the "Purchase Contract Agreement") between the Company and The Chase
Manhattan Bank, as Purchase Contract Agent (including its successors thereunder,
herein called the "Purchase Contract Agent"), to which the Purchase Contract
Agreement and supplemental agreements thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Purchase Contract Agent, the Company and the
Holders and of the terms upon which the Treasury PEPS Units Certificates are,
and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PEPS Units Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price") a number of shares of Common Stock equal to the Settlement
Rate, unless prior to the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such Purchase
Contract is a part or an Early Settlement shall have occurred. The "Settlement
Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equals or
exceeds $________ (the "Threshold Appreciation Price"), _____ shares of
Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $________ (the "Reference Price"), the
number of shares of Common Stock per Purchase Contract having a value equal
to the Stated Amount divided by the Applicable Market Value; and
(3) if the Applicable Market Amount is less than or equal to
$________, then _________ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.11 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Treasury PEPS Unit to purchase at the Purchase Price for cash, and the Company
to sell, a number of shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Prices per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date or
applicable Early Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means the:
B-5
<PAGE>
(1) closing sale price (or, if no closing price is reported, the last
reported sale price) per share on the New York Stock Exchange, Inc. (the
"NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States national
or regional securities exchange, the closing sale price per share as
reported by The Nasdaq Stock Market, Inc.;
(4) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of the Common Stock on such date from at
least three nationally recognized independent investment banking firms
retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury PEPS Unit shall pay the Purchase Price for the shares
of the Common Stock purchased pursuant to each Purchase Contract evidenced
hereby either by effecting an Early Settlement of each such Purchase Contract
or by applying a principal amount of the Pledged Treasury Securities
underlying such Holder's Treasury PEPS Unit equal to the Stated Amount of
such Purchase Contract to the purchase of the Common Stock. A Holder of
Treasury PEPS Unit who does not effect, prior to or on 11:00 a.m. (New York
City time) on the fifth Business Day immediately preceding August 16, 2002,
an effective Early Settlement, shall pay the Purchase Price for the shares of
Common Stock to be issued under the related Purchase Contract from the
proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the Treasury PEPS Units Register. Upon and after
the occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Treasury Securities (as defined in the Pledge Agreement) forming a part
of
B-6
<PAGE>
each Treasury PEPS Unit. A Treasury PEPS Unit shall thereafter represent the
right to receive the interest in the Treasury Security forming a part of such
Treasury PEPS Unit, in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement.
The Treasury PEPS Units Certificates are issuable only in registered
form and only in denominations of a single Treasury PEPS and any integral
multiple thereof. The transfer of any Treasury PEPS Certificate will be
registered and Treasury PEPS Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Treasury PEPS Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents permitted by the Purchase Contract Agreement. No service charge
shall be required for any such registration of transfer or exchange, but the
Company and the Purchase Contract Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. A Holder who elects to substitute Preferred
Securities, Subordinated Debentures or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, for Treasury
Securities, thereby recreating PEPS Units, shall be responsible for any fees
or expenses associated therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract underlying a Treasury PEPS
Unit remains in effect, such Treasury PEPS Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Treasury PEPS Unit in respect of the Treasury Security and the Purchase
Contract constituting such Treasury PEPS Unit may be transferred and
exchanged only as a Treasury PEPS Unit. A Holder of Treasury PEPS Units may
recreate PEPS Units by delivering to the Collateral Agent, Preferred
Securities or Subordinated Debentures with a liquidation amount, in the case
of such Preferred Securities, or with a principal amount in the case of such
Subordinated Debentures, equal to the aggregate principal amount at maturity
of the Pledged Treasury Securities in exchange for the release of such
Pledged Treasury Securities in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement. From and after such
substitution, the Holder's Security shall be referred to as a "PEPS Unit".
Such substitution may cause the equivalent aggregate principal amount of this
Certificate to be increased or decreased; provided, however, this Treasury
PEPS Units Certificate shall not represent more than _____________ Treasury
PEPS Units. All such adjustments to the equivalent aggregate principal
amount of this Treasury PEPS Units Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of PEPS Units may recreate Treasury PEPS Units by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation amount of the Pledged Preferred
Securities, the aggregate principal amount at maturity of the Pledged
Debentures in exchange for the release of such Pledged Preferred Securities
or Pledged Debentures in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. Any such recreation of Treasury PEPS
Units
B-7
<PAGE>
may be effected only in multiples of 40 PEPS Units for 40 Treasury PEPS
Units; provided, however, if a Tax Event Redemption has occurred and the
Treasury Portfolio has become a component of the PEPS Units, a Holder may
recreate PEPS Units in integral multiples of _____ PEPS Units for ____
Treasury PEPS Units.
The Company shall pay, on each Payment Date, the Purchase Contract Payments
payable in respect of each Purchase Contract to the Person in whose name the
Treasury PEPS Units Certificate evidencing such Purchase Contract is registered
at the close of business on the Record Date for such Payment Date. Purchase
Contract Payments will be payable at the office of the Purchase Contract Agent
in New York City or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Treasury PEPS Units Register.
The Company has the right to defer payment of all or part of the Purchase
Contract Payments in respect of each Purchase Contract until no later than the
Purchase Contract Settlement Date. If the Company so elects to defer Purchase
Contract Payments, the Company shall pay additional Purchase Contract Payments
on such deferred installments of Purchase Contract Payments at a rate equal to
___% per annum, compounding quarterly, until such deferred installments are
paid. If a Holder effects an Early Settlement or if a Termination Event shall
occur, such Holder will have no right to receive any accrued and unpaid or
deferred Purchase Contract Payments.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay Purchase Contract Payments,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Purchase Contract Agent or the Company, if,
on or prior to the Purchase Contract Settlement Date, a Termination Event shall
have occurred. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at
their addresses as they appear in the Treasury PEPS Units Register. Upon the
occurrence of a Termination Event, the Collateral Agent shall release the
Treasury Securities from the Pledge in accordance with the provisions of the
Pledge Agreement. A Treasury PEPS Unit shall thereafter represent the right to
receive the interest in the Treasury Security forming a part of such Treasury
PEPS Unit, in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") as provided in the Purchase
Contract Agreement. In order to exercise the right to effect Early Settlement
with respect to any Purchase Contracts evidenced by this Treasury PEPS Unit, the
Holder of this Treasury PEPS Units Certificate shall deliver this Treasury PEPS
Units Certificate to the Purchase Contract Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to:
B-8
<PAGE>
(1) the product of (A) $25 times (B) the number of Purchase Contracts
with respect to which the Holder has elected to effect Early Settlement,
plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Purchase Contract Payments payable, if any, on such Payment
Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Treasury Securities underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Treasury PEPS Unit as to which Early
Settlement is effected equal to ______ shares of Common Stock per Purchase
Contract (the "Early Settlement Rate"). The Early Settlement Rate shall be
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement. Upon registration of
transfer of this Treasury PEPS Certificate, the transferee shall be bound
(without the necessity of any other action on the part of such transferee,
except as may be required by the Purchase Contract Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Treasury
PEPS Units Certificate. The Company covenants and agrees, and the Holder, by
its acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Treasury PEPS Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Treasury PEPS Units evidenced
hereby on its behalf as its attorney-in-fact, expressly withholds any consent to
the assumption (i.e., affirmance) of the Purchase Contracts by the Company or
its trustee in the event that the Company becomes the subject of a case under
the Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Treasury Securities underlying this Treasury PEPS
Units Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees, that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect to the aggregate principal amount of the Pledged
Treasury Securities on the Purchase Contract Settlement Date shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
B-9
<PAGE>
The Company, the Purchase Contract Agent and its Affiliates and any agent
of the Company or the Purchase Contract Agent may treat the Person in whose name
this Treasury PEPS Units Certificate is registered as the owner of the Treasury
PEPS Units evidenced hereby for the purpose of receiving payments of interest on
the Treasury Securities, receiving payments of Purchase Contract Payments,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Purchase Contract Agent
nor any such agent shall be affected by notice to the contrary. The Purchase
Contracts shall not, prior to the settlement thereof, entitle the Holder to any
of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Purchase Contract Agent.
B-10
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: ___________________ Custodian __________________
(cust) (minor)
Under Uniform Gifts to Minors Act of __________
________________________________________________
TEN ENT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
- --------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of
Assignee) the within Treasury PEPS Units Certificates and all rights
thereunder, hereby irrevocably constituting and appointing
_____________________attorney to transfer said Treasury PEPS Units
Certificates on the books of __________________ with the full power of
substitution in the premises.
Dated:____________________ __________________________________
Signature
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Treasury PEPS
Units Certificates in every particular,
without alteration or enlargement or any
change whatsoever.
Signature Guarantee:________________________________
B-11
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury PEPS Units
evidenced by this Treasury PEPS Units Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated:------------------------- -------------------------------------
Signature
Signature Guarantee:_________________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person other REGISTERED HOLDER
than the Holder, please (i) print such
Person's name and address and (ii)
provide a guarantee of your signature: Please print name and address
of Registered Holder:
- ---------------------------------- -----------------------------
Name Name
- ---------------------------------- -----------------------------
Address Address
- ---------------------------------- -----------------------------
- ---------------------------------- -----------------------------
- ---------------------------------- -----------------------------
Social Security or other
Taxpayer Identification
Number, if any -----------------------------
B-12
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PEPS Units Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury PEPS Units evidenced by this Treasury PEPS
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury PEPS with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury PEPS Units Certificate representing any Treasury PEPS Units evidenced
hereby as to which Early Settlement of the related Purchase Contracts is not
effected, to the undersigned at the address indicated below unless a different
name and address have been indicated below. Pledged Treasury Securities
deliverable upon such Early Settlement will be transferred in accordance with
the transfer instructions set forth below. If shares are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated:_____________________ ___________________________________
Signature
Signature Guarantee:_____________________________________
B-13
<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock of
Treasury PEPS Units Certificates are to be REGISTERED HOLDER
registered in the name of and delivered to
and Pledged Treasury Securities are to be
transferred to a Person other than the
Holder, please print such Person's name and
address:
Please print name and address
of Registered Holder:
- ---------------------------------- -----------------------------
Name Name
- ---------------------------------- -----------------------------
Address Address
- ---------------------------------- -----------------------------
- ---------------------------------- -----------------------------
- ---------------------------------- -----------------------------
Social Security or other
Taxpayer Identification
Number, if any -----------------------------
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B-14
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
================================================================================
Amount of Amount of Number of
decrease in decrease in Treasury PEPS Signature of
Number of Number of Units evidenced authorized
Treasury PEPS Treasury PEPS by this Global officer of
Units evidenced Units evidenced Certificate Trustee or
by the Global by the Global following such Securities
Date Certificate Certificate decrease or increase Custodian
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B-15
<PAGE>
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Group
Re: [_______ PEPS Units] [_______ Treasury PEPS Units] of UtiliCorp United
Inc., a Delaware corporation (the "Company") and UCU Capital Trust I.
The undersigned Holder [hereby notifies you that it has delivered to The
First National Bank of Chicago, as Securities Intermediary, for credit to the
Collateral Account, $______ aggregate [principal] [liquidation] amount of
[Preferred Securities], [Subordinated Debentures] [Treasury Securities] in
exchange for the [Pledged Preferred Securities], [Pledged Subordinated
Debentures] [Pledged Treasury Securities] held in the Collateral Account, in
accordance with the Pledge Agreement, dated as of September, 1999 (the "Pledge
Agreement"; unless otherwise defined herein, terms defined in the Pledge
Agreement are used herein as defined therein), between you, the Company, the
Collateral Agent and the Securities Intermediary. The undersigned Holder has
paid all applicable fees relating to such exchange. The undersigned Holder
hereby instructs you to instruct the Collateral Agent to release to you on
behalf of the undersigned Holder the [Pledged Preferred Securities], [Pledged
Subordinated Debentures] or clause(A) [Pledged Treasury Securities] related to
such [PEPS Units] [Treasury PEPS Units].
Date:
----------------------- -----------------------------
Signature
Signature Guarantee:
------------------------
C-1
<PAGE>
Please print name and address of Registered Holder:
- ---------------------------- ------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
___________________________
___________________________
___________________________
___________________________
C-2
<PAGE>
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
________________________
________________________
Attention:
Telecopy: __________
Re: [__________ PEPS Units] [______ Treasury PEPS Units] of UtiliCorp
United Inc., a Delaware corporation (the "Company") and UCU
Capital Trust I
Please refer to the Purchase Contract Agreement, dated as of September
__, 1999 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the holders of PEPS Units and Treasury PEPS Units
from time to time.
We hereby notify you that a Termination Event has occurred and that
[the Subordinated Debentures][the Treasury Securities] underlying your
ownership interest in _____ [PEPS Units] [Treasury PEPS Units] have been
released and are being held by us for your account pending receipt of
transfer instructions with respect to such [Subordinated Debentures]
[Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released
Securities. Upon receipt of your instructions and upon transfer to us of your
[PEPS Units][Treasury PEPS Units] effected through book-entry or by delivery
to us of your [PEPS Units Certificate][Treasury PEPS Units Certificate], we
shall transfer the Released Securities by book-entry transfer or other
appropriate procedures, in accordance with your instructions. In the event
you fail to effect such transfer or delivery, the Released Securities and any
distributions thereon, shall be held in our name, or a nominee in trust for
your benefit, until such time as such [PEPS Units][Treasury PEPS Units] are
transferred or your [PEPS Units Certificate] [Treasury PEPS Units Certificate]
is surrendered or satisfactory evidence is provided that such your
[PEPS Units Certificate][Treasury PEPS Units Certificate] has been destroyed,
lost or stolen, together with any indemnification that we or the Company may
require.
Date: By: THE CHASE MANHATTAN BANK
D-1
<PAGE>
-------------------------------------------
Name:
Title: Authorized Officer
D-2
<PAGE>
EXHIBIT E
NOTICE TO SETTLE BY CASH
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Group
Re: _______ PEPS Units of UtiliCorp United Inc., a Delaware
corporation (the "Company") and UCU Capital Trust I
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.4 of the Purchase Contract Agreement, dated as of September
__, 1999 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts, that such Holder
has elected to pay to the Securities Intermediary for deposit in the
Collateral Account, prior to or on 11:00 a.m. (New York City time) on the
fifth Business Day immediately preceding August 16, 2002 (in lawful money
of the United States by certified or cashiers' check or wire transfer, in
immediately available funds), $______ as the Purchase Price for the shares of
Common Stock issuable to such Holder by the Company under the related Purchase
Contracts on the Purchase Contract Settlement Date. The undersigned Holder
hereby instructs you to notify promptly the Collateral Agent of the undersigned
Holders' election to make such cash settlement with respect to the Purchase
Contracts related to such Holder's PEPS Units.
Date:
----------------------- ---------------------------------
Signature
Signature Guarantee:
------------------------
Please print name and address of Registered Holder:
E-1
<PAGE>
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(Settlement of Purchase Contract through Remarketing)
The First National Bank of Chicago
1 North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration Department
Telecopy: 312-402-1708
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Group
Telecopy: 212-946-8159
Re: __________ PEPS Units of UtiliCorp United Inc., a Delaware
corporation (the "Company") and UCU Capital Trust I
Please refer to the Purchase Contract Agreement, dated as of September
__, 1999 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the Holders of PEPS Units from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of PEPS
Units as of 11:00 a.m. (New York City time), the fifth Business Day preceding
August 16, 2002, we hereby notify you that ______ [Preferred Securities]
[Subordinated Debentures] are to be tendered for purchase in the Remarketing.
Date: By: THE CHASE MANHATTAN BANK
-------------------------------------------
Name:
Title: Authorized Officer
F-1
<PAGE>
EXHIBIT 4(n)
UTILICORP UNITED INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO, AS COLLATERAL AGENT
AND
THE FIRST NATIONAL BANK OF CHICAGO, AS SECURITIES INTERMEDIARY
AND
THE CHASE MANHATTAN BANK, AS PURCHASE CONTRACT AGENT
PLEDGE AGREEMENT
DATED AS OF SEPTEMBER ___ , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 2. Pledge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 2.1 PLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 2.2 CONTROL; FINANCING STATEMENT . . . . . . . . . . . . . . . . . . .5
SECTION 2.3 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Section 3. Distributions on Pledged Collateral. . . . . . . . . . . . . . . . . . .6
SECTION 3.1 INCOME DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.2 PRINCIPAL PAYMENTS FOLLOWING TERMINATION EVENT . . . . . . . . . .6
SECTION 3.3 PRINCIPAL PAYMENTS PRIOR TO OR ON PURCHASE CONTRACT
SETTLEMENT DATE. . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.4 PAYMENTS TO PURCHASE CONTRACT AGENT. . . . . . . . . . . . . . . .7
SECTION 3.5 ASSETS NOT PROPERLY RELEASED.. . . . . . . . . . . . . . . . . . .7
Section 4. Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 4.1 ESTABLISHMENT OF COLLATERAL ACCOUNT.. . . . . . . . . . . . . . . .7
SECTION 4.2 TREATMENT AS FINANCIAL ASSETS. . . . . . . . . . . . . . . . . . .8
SECTION 4.3 SOLE CONTROL BY COLLATERAL AGENT.. . . . . . . . . . . . . . . . .8
SECTION 4.4 SECURITIES INTERMEDIARY'S LOCATION.. . . . . . . . . . . . . . . .8
SECTION 4.5 NO OTHER CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 4.6 INVESTMENT AND RELEASE . . . . . . . . . . . . . . . . . . . . . .8
SECTION 4.7 STATEMENTS AND CONFIRMATIONS . . . . . . . . . . . . . . . . . . .8
SECTION 4.8 TAX ALLOCATIONS. . . . . . . . . . . . . . . . . . . . . . . . . .9
SECTION 4.9 NO OTHER AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . .9
SECTION 4.10 POWERS COUPLED WITH AN INTEREST . . . . . . . . . . . . . . . . .9
Section 5. Initial Deposit; Establishment of Treasury PEPS Units and
Reestablishment of PEPS Units . . . . . . . . . . . . . . . . . . . .9
SECTION 5.1 INITIAL DEPOSIT OF TRUST PREFERRED SECURITIES. . . . . . . . . . .9
SECTION 5.2 ESTABLISHMENT OF TREASURY PEPS UNITS . . . . . . . . . . . . . . .9
SECTION 5.3 REESTABLISHMENT OF PEPS UNITS. . . . . . . . . . . . . . . . . . 11
SECTION 5.4 TERMINATION EVENT. . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.5 CASH SETTLEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.6 EARLY SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.7 APPLICATION OF PROCEEDS SETTLEMENT . . . . . . . . . . . . . . . 15
SECTION 5.8 TAX EVENT REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . 16
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Section 6. Voting Rights - Trust Preferred Securities and Pledged Debentures. . . 16
Section 7. Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.1 RIGHTS AND REMEDIES OF THE COLLATERAL AGENT. . . . . . . . . . . 17
SECTION 7.2 SUBSTITUTION OF DEBENTURES . . . . . . . . . . . . . . . . . . . 18
SECTION 7.3 TAX EVENT REDEMPTION . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.4 SUBSTITUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 8. Representations and Warranties; Covenants . . . . . . . . . . . . . . 19
SECTION 8.1 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 19
SECTION 8.2 COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 9. The Collateral Agent and the Securities Intermediary . . . . . . . . . 20
SECTION 8.1 APPOINTMENT, POWERS AND IMMUNITIES . . . . . . . . . . . . . . . 20
SECTION 9.2 INSTRUCTIONS OF THE COMPANY. . . . . . . . . . . . . . . . . . . 21
SECTION 9.3 RELIANCE BY COLLATERAL AGENT AND SECURITIES INTERMEDIARY . . . . 21
SECTION 9.4 RIGHTS IN OTHER CAPACITIES . . . . . . . . . . . . . . . . . . . 21
SECTION 9.5 NON-RELIANCE ON COLLATERAL AGENT AND SECURITIES INTERMEDIARY . . 22
SECTION 9.6 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . . . . . 22
SECTION 9.7 FAILURE TO ACT . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 9.8 RESIGNATION OF COLLATERAL AGENT AND SECURITIES INTERMEDIARY . . 23
SECTION 9.9 RIGHT TO APPOINT AGENT OR ADVISOR. . . . . . . . . . . . . . . . 24
SECTION 9.10 SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.11. EXCULPATION. . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10. Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 10.1 AMENDMENT WITHOUT CONSENT OF HOLDERS. . . . . . . . . . . . . . 25
SECTION 10.2 AMENDMENT WITH CONSENT OF HOLDERS . . . . . . . . . . . . . . . 25
SECTION 10.3. EXECUTION OF AMENDMENTS. . . . . . . . . . . . . . . . . . . . 26
SECTION 10.4. EFFECT OF AMENDMENTS . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.5. REFERENCE TO AMENDMENTS. . . . . . . . . . . . . . . . . . . . 27
Section 11. Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 11.1 NO WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 11.2 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 11.3 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 11.4 SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . 28
SECTION 11.5 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . 28
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Section 11.6 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 11.7 EXPENSES, ETC . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 11.8 SECURITY INTEREST ABSOLUTE. . . . . . . . . . . . . . . . . . . 29
EXHIBIT A INSTRUCTION FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT
(Establishment of Treasury PEPS Units) . . . . . . . . . . . . . . . . . . . . . . .1
EXHIBIT B INSTRUCTION FROM COLLATERAL AGENT TO SECURITIES INTERMEDIARY
(Establishment of Treasury PEPS Units) . . . . . . . . . . . . . . . . . . . . . . .3
EXHIBIT C INSTRUCTION FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT
(Reestablishment of PEPS Units ) . . . . . . . . . . . . . . . . . . . . . . . . . .5
EXHIBIT D INSTRUCTION FROM COLLATERAL AGENT TO SECURITIES INTERMEDIARY
(Reestablishment of PEPS Units). . . . . . . . . . . . . . . . . . . . . . . . . . .7
EXHIBIT E NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY TO PURCHASE
CONTRACT AGENT (Cash Settlement Amounts) . . . . . . . . . . . . . . . . . . . . . .9
</TABLE>
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of September ____, 1999, among UtiliCorp
United Inc., a Delaware corporation (the "Company"), The First National Bank
of Chicago, a national banking association, as collateral agent (in such
capacity, together with its successors in such capacity, the "Collateral
Agent"), The First National Bank of Chicago, a national banking association,
as securities intermediary with respect to the Collateral Account (in such
capacity, together with its successors in such capacity, the "Securities
Intermediary"), and The Chase Manhattan Bank, a New York banking association,
as purchase contract agent and as attorney-in-fact of the Holders from time
to time of the Securities under the Purchase Contract Agreement (in such
capacity, together with its successors in such capacity, the "Purchase
Contract Agent").
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant
to which there may be issued up to _______________ Premium Equity Participating
Security Units--PEPS-SM- Units (the "Securities").
Each PEPS Unit, at issuance, consists of a unit comprised of (a) a stock
purchase contract (the "Purchase Contract") under which (i) the Holder will
purchase from the Company on the Purchase Contract Settlement Date, for an
amount equal to $25 (the "Stated Amount"), a number of shares of UtiliCorp
United, Inc. common stock, par value $1.00 ("Common Stock") equal to the
Settlement Rate, and (ii) the Company will pay the Holder Purchase Contract
Payments and (b) beneficial ownership of a Trust Preferred Security (a
"Preferred Security") issued by UCU Capital Trust I (the "Trust"), having a
liquidation amount equal to the Stated Amount and maturing on _____________,
_____.
Pursuant to the terms of the Purchase Contract Agreement [and the Purchase
Contracts], the Holders of the Securities have irrevocably authorized the
Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and
to grant the pledge provided herein of the Collateral Account to secure the
Obligations.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree as
follows:
Section 1. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the UCC shall have the
meanings set forth therein: "certificated security", "control", "financial
asset", "entitlement order", "securities account" and "security entitlement";
(d) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: "Act", "Bankruptcy Code", "Board Resolution",
"Business Day", "Cash Settlement", "Certificate", "Early Settlement", "Early
Settlement Amount", "Early Settlement Date", "Holder", "Opinion of Counsel",
"Outstanding Securities", "PEPS Units", "Purchase Contract", "Purchase
Contract Payments", "Purchase Contract Settlement Date", "Purchase Price",
"Remarketing Agent", "Remarketing Agreement", "Settlement Rate", "Termination
Event", "Treasury PEPS Units", and "Underwriting Agreement";
(e) the following terms have the meanings assigned to them in the
Declaration: "Applicable Ownership Interest", "Applicable Principal Amount",
"Failed Remarketing", "Indenture", "Primary Treasury Dealer", "Property
Trustee", "Quotation Agent", "Redemption Amount", "Redemption Price", "Tax
Event", "Tax Event Redemption", "Tax Event Redemption Date", and "Treasury
Portfolio"; and
(f) the following terms have the meanings given to them in this section
1(f):
"Agreement" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"Cash" means any coin or currency of the United States as at the time
shall be legal tender for payment of public and private debts.
"Collateral Account" means the collective reference to:
(1) Securities Account No. _______ entitled "The First National Bank
of Chicago, as Collateral Agent, Securities Account (UCU Capital Trust I)"
maintained by the Securities Intermediary for the Purchase Contract Agent
on behalf of and as attorney-in-fact for the Holders;
(2) all investment property and other financial assets from time to
time credited to the Collateral Account, including, without limitation, (A)
the Preferred Securities and security entitlements relating thereto which
are a component of the PEPS Units from time to time, (B) the Applicable
Ownership Interests (as specified in Clause (A) of the definition of such
term) of the Holders with respect to the Treasury Portfolio which are a
component of the PEPS Units from time to time; (C) the Debentures and
security entitlements relating thereto which are a component of the PEPS
Units from time to time, (D) any Treasury Securities and security
entitlements relating thereto delivered from time to time upon
establishment of Treasury PEPS Units in accordance with hereof and (E)
payments made by Holders pursuant to Section 5.5 hereof (collectively, the
"Collateral");
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(3) all Proceeds of any of the foregoing (whether such Proceeds arise
before or after the commencement of any proceeding under any applicable
bankruptcy, insolvency or other similar law, by or against the pledgor or
with respect to the pledgor); and
(4) all powers and rights now owned or hereafter acquired under or
with respect to the Collateral Account.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor shall have become such, and thereafter
"Company" shall mean such successor.
"Obligations" means, with respect to each Holder, the collective
reference to all obligations and liabilities of such Holder under such
Holder's [Purchase Contract], the Purchase Contract Agreement, and this
Agreement or any other document made, delivered or given in connection
herewith or therewith, in each case whether on account of principal, interest
(including, without limitation, interest accruing before and after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Holder, whether or not a
claim for post-filing or post-petition interest is allowed in such
proceeding), fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the Company or
the Collateral Agent or the Securities Intermediary that are required to be
paid by the Holder pursuant to the terms of any of the foregoing agreements).
"Permitted Investments" means any one of the following which shall
mature not later than the next succeeding Business Day:
(1) any evidence of indebtedness with an original maturity of 365
days or less issued, or directly and fully guaranteed or insured, by the
United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged
in support of the timely payment thereof or such indebtedness constitutes a
general obligation of it);
(2) deposits, certificates of deposit or acceptances with an original
maturity of 365 days or less of any institution which is a member of the
Federal Reserve System having combined capital and surplus and undivided
profits of not less than $200.0 million at the time of deposit;
(3) investments with an original maturity of 365 days or less of any
Person that is fully and unconditionally guaranteed by a bank referred to
in clause (2);
(4) repurchase agreements and reverse repurchase agreements relating
to marketable direct obligations issued or unconditionally guaranteed by
the United States Government or issued by any agency thereof and backed as
to timely payment by the full faith and credit of the United States
Government;
(5) investments in commercial paper, other than commercial paper
issued by the Company or its affiliates, of any corporation incorporated
under the laws of the
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United States or any State thereof, which commercial paper has a rating at
the time of purchase at least equal to "A-1" by Standard & Poor's Ratings
Services ("S&P") or at least equal to "P-1" by Moody's Investors Service,
Inc. ("Moody's"); and
(6) investments in money market funds registered under the Investment
Company Act of 1940, as amended, rated in the highest applicable rating
category by S&P or Moody's.
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Pledge" means the lien and security interest created by this Agreement.
"Pledged Debentures" means Debentures and security entitlements with
respect thereto from time to time credited to the Collateral Account and not
then released from the Pledge.
"Pledged Preferred Securities" means the Preferred Securities and
security entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.
"Pledged Treasury Securities" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.
"Proceeds" has the meaning ascribed thereto in the UCC and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in Section 8-102(a)(9) of the UCC) and other
property received, receivable or otherwise distributed upon the sale,
exchange, collection or disposition of any financial assets from time to
time held in the Collateral Account.
"Purchase Contract Agent" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, an amended from
time to time. Unless otherwise defined herein, all terms defined in the
TRADES Regulations are used herein as therein defined.
"Transfer" means:
(1) in the case of certificated securities in registered form,
delivery as provided in Section 8-301(a) of the UCC, indorsed to the
transferee or in blank by an effective endorsement;
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(2) in the case of Treasury Securities, registration of the
transferee as the owner of such Treasury Securities on TRADES; and
(3) in the case of security entitlements, including, without
limitation, security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security
entitlement has been credited to the transferee's securities account.
"Treasury Securities" means zero-coupon U.S. Treasury Securities (Cusip No.
_________________ ) which are the principal strips of the _____% U.S. Treasury
Securities which mature on ____________, ______.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York from time to time.
"Value" means, with respect to any item of Collateral on any date, as to
(1) Cash, the face amount thereof and (2) Treasury Securities, the aggregate
principal amount thereof at maturity [and (3) the Preferred Securities, the
liquidation amount thereto].
Section 2. Pledge.
Section 2.1 Pledge.
Each Holder, acting through the Purchase Contract Agent as such Holder's
attorney-in-fact, hereby pledges and grants to the Collateral Agent, as agent
of and for the benefit of the Company, a continuing first priority security
interest in and to, and a lien upon and right of set off against, all of such
Holder's right, title and interest in and to the Collateral Account to secure
the prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations. The Collateral
Agent shall have all of the rights, remedies and recourses with respect to
the Collateral afforded a secured party by the UCC, in addition to, and not
in limitation of, the other rights, remedies and recourses afforded to the
Collateral Agent by this Agreement.
Section 2.2 Control; Financing Statement.
(a) The Collateral Agent shall have control of the Collateral Account
pursuant to the provisions of Section 4 of this Agreement.
(b) On the date of initial issuance of the Securities, the Purchase
Contract Agent shall deliver to the Collateral Agent a financing statement
prepared by the Company for filing in the Office of the Secretary of State of
the State of New York, signed by the Purchase Contract Agent, as
attorney-in-fact for the Holders, as Debtors, and describing the Collateral.
Section 2.3 Termination.
As to each Holder, this Agreement and the Pledge created hereby shall
terminate upon the satisfaction of such Holder's Obligations. Upon
termination, the Securities Intermediary shall
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Transfer the Collateral to the Purchase Contract Agent for distribution to
such Holder in accordance with his interest, free and clear of any lien,
pledge or security interest created hereby.
Section 3. Distributions on Pledged Collateral.
Section 3.1 Income Distributions.
All income distributions received by the Securities Intermediary on
account of the Preferred Securities or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio or the Debentures or Permitted Investments from time to time held
in the Collateral Account shall be distributed to the Purchase Contract Agent
for the benefit of the applicable Holders as provided in the Purchase
Contracts or Purchase Contract Agreement.
Section 3.2 Principal Payments Following Termination Event.
All payments received by the Securities Intermediary following a
Termination Event of (1) the liquidation amount of Pledged Preferred
Securities or securities entitlements thereto, or (2) the Applicable
Ownership Interests (as specified in Clause (A) of the definition thereof) of
the Treasury Portfolio, (3) the aggregate principal amount of the Pledged
Debentures or securities entitlements thereto, or (4) the principal amount of
the Pledged Treasury Securities, shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
Section 3.3 Principal Payments Prior To or On Purchase Contract
Settlement Date.
(a) Subject to the provisions of Section 7.2, and except as provided in
clause 3.3(b) below, if no Termination Event shall have occurred, all
payments received by the Securities Intermediary of (1) the liquidation
amount with respect to the Pledged Preferred Securities or security
entitlements thereto, (2) Applicable Ownership interests (as specified in
Clause (A) of the definition thereof) of the Treasury Portfolio, (3) the
aggregate principal amount with respect to the Pledged Debentures or security
entitlements thereto or (4) the principal amount of Pledged Treasury
Securities, shall be held and invested in Permitted Investments until the
Purchase Contract Settlement Date and on the Purchase Contract Settlement
Date distributed to the Company as provided in Section 5.7 hereof. Any
balance remaining in the Collateral Account shall be distributed to the
Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (1) the
liquidation amount of Preferred Securities or security entitlements thereto,
(2) Applicable Ownership interests (as specified in Clause (A) of the
definition thereof) of the Treasury Portfolio, (3) the aggregate principal
amount with respect to the Pledged Debentures or security entitlements
thereto or (4) the principal amount of Treasury Securities or security
entitlements thereto, that, in each case, have been released from the Pledge
shall be distributed to the Purchase Contract Agent for the benefit of the
applicable Holders for distribution to such Holders in accordance with their
respective interests.
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Section 3.4 Payments to Purchase Contract Agent.
Payments to the Purchase Contract Agent hereunder shall be made to the
account designated by the Purchase Contract Agent for such purpose not later
than 12:00 p.m. (New York City time) on the Business Day such payment is
received by the Securities Intermediary; provided, however, that if such
payment is received on a day that is not a Business Day or after 12:00 p.m.
(New York City time) on a Business Day, then such payment shall be made no
later than 10:30 a.m. (New York City time) on the next succeeding Business
Day.
Section 3.5 Assets Not Properly Released.
If the Purchase Contract Agent or any Holder shall receive any principal
payments on account of financial assets credited to the Collateral Account
and not released therefrom in accordance with this Agreement, the Purchase
Contract Agent or such Holder shall hold the same as trustee of an express
trust for the benefit of the Company and, upon receipt of an Officers'
Certificate (as defined in the Purchase Contract Agreement) of the Company so
directing, promptly deliver the same to the Securities Intermediary for
credit to the Collateral Account or to the Company for application to the
Obligations of the Holders, and the Purchase Contract Agent and Holders shall
acquire no right, title or interest in any such payments of principal amounts
so received.
Section 4. Control.
Section 4.1 Establishment of Collateral Account.
The Securities Intermediary hereby confirms that:
(1) the Securities Intermediary has established the Collateral
Account;
(2) the Collateral Account is a securities account;
(3) subject to the terms of this Agreement, the Securities
Intermediary shall treat the Purchase Contract Agent as entitled to
exercise the rights that comprise any financial asset credited to the
Collateral Account;
(4) all property delivered to the Securities Intermediary pursuant to
this Agreement or the Purchase Contract Agreement will be credited promptly
to the Collateral Account;
(5) all securities or other property underlying any financial assets
credited to the Collateral Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary, or in
blank or credited to another securities account maintained in the name of
the Securities Intermediary, and in no case will any financial asset
credited to the Collateral Account be registered in the name of the
Purchase Contract Agent or any Holder, payable to the order of the Purchase
Contract Agent or any Holder or specially indorsed to the Purchase Contract
Agent or any Holder.
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Section 4.2 Treatment as Financial Assets.
Each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Collateral Account shall be
treated as a financial asset.
Section 4.3 Sole Control by Collateral Agent.
Except as provided in Section 6, at all times prior to the termination
of the Pledge, the Collateral Agent shall have sole control of the Collateral
Account, and the Securities Intermediary shall take instructions and
directions with respect to the Collateral Account solely from the Collateral
Agent. If at any time the Securities Intermediary shall receive an
entitlement order issued by the Collateral Agent and relating to the
Collateral Account, the Securities Intermediary shall comply with such
entitlement order without further consent by the Purchase Contract Agent or
any Holder or any other Person. Until termination of the Pledge, the
Securities Intermediary will not comply with any entitlement orders issued by
the Purchase Contract Agent or any Holder.
Section 4.4 Securities Intermediary's Location.
The Collateral Account, and the rights and obligations of the Securities
Intermediary, the Collateral Agent, the Purchase Contract Agent and the
Holders with respect thereto, shall be governed by the laws of the State of
New York. Regardless of any provision in any other agreement, for purposes of
the UCC, New York shall be deemed to be the Securities Intermediary's
location.
Section 4.5 No Other Claims.
Except for the claims and interest of the Collateral Agent and of the
Purchase Contract Agent and the Holders in the Collateral Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Collateral Account or in any financial asset credited thereto. If any person
asserts any lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against the Collateral Account or in any financial asset carried therein, the
Securities Intermediary will promptly notify the Collateral Agent and the
Purchase Contract Agent.
Section 4.6 Investment and Release.
All proceeds of financial assets from time to time deposited in the
Collateral Account shall be invested and reinvested as provided in this
Agreement. At all times prior to termination of the Pledge, no property shall
be released from the Collateral Account except in accordance with this
Agreement or upon written instructions of the Collateral Agent.
Section 4.7 Statements and Confirmations.
The Securities Intermediary will promptly send copies of all statements,
confirmations and other correspondence concerning the Collateral Account and
any financial assets credited thereto simultaneously to each of the Purchase
Contract Agent and the Collateral Agent at their addresses for notices under
this Agreement.
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Section 4.8 Tax Allocations.
All items of income, gain, expense and loss recognized in the Collateral
Account shall be reported to the Internal Revenue Service and all state and
local taxing authorities under the names and taxpayer identification numbers
of the Holders which are the beneficial owners thereof.
Section 4.9 No Other Agreements.
The Securities Intermediary has not entered into, and prior to the
termination of the Pledge will not enter into, any agreement with any other
Person relating to the Collateral Account or any financial assets credited
thereto, including, without limitation, any agreement to comply with
entitlement orders of any Person other than the Collateral Agent.
Section 4.10 Powers Coupled With An Interest.
The rights and powers granted in this Section 4 to the Collateral Agent
have been granted in order to perfect its security interests in the
Collateral Account, are powers coupled with an interest and will be affected
neither by the bankruptcy of the Purchase Contract Agent or any Holder nor by
the lapse of time. The obligations of the Securities Intermediary under this
Section 4 shall continue in effect until the termination of the Pledge.
Section 5. Initial Deposit; Establishment of Treasury PEPS Units and
Reestablishment of PEPS Units.
Section 5.1 Initial Deposit of Trust Preferred Securities.
Prior to or concurrently with the execution and delivery of this
Agreement, the Purchase Contract Agent, on behalf of the initial Holders of
the PEPS Units, shall Transfer to the Securities Intermediary, for credit to
the Collateral Account, the Preferred Securities or security entitlements
relating thereto, and the Securities Intermediary shall indicate by
book-entry that a securities entitlement to such Preferred Securities has
been credited to the Collateral Account.
Section 5.2 Establishment of Treasury PEPS Units.
(a) So long as no Tax Event Redemption shall have occurred, and the
Trust shall not have been liquidated, at any time prior to or on the seventh
Business Day immediately preceding August 16, 2002, a Holder of PEPS Units
shall have the right to establish or reestablish Treasury PEPS Units by
substitution of Treasury Securities or security entitlements thereto for the
Pledged Preferred Securities comprising a part of such Holder's PEPS Units in
integral multiples of 40 PEPS Units by:
(1) transferring to the Securities Intermediary for credit to the
Collateral Account Treasury Securities or security entitlements thereto
having a Value equal to the liquidation amount of the Pledged Preferred
Securities to be released, accompanied by a notice, substantially in the
form of Exhibit C to the Purchase Contract Agreement, whereupon the
Purchase Contract Agent shall deliver to the Collateral Agent a notice,
substantially in the form of Exhibit A hereto, (A) stating that such Holder
has Transferred
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Treasury Securities or security entitlements thereto to the Securities
Intermediary for credit to the Collateral Account, (B) stating the Value
of the Treasury Securities or security entitlements thereto Transferred by
such Holder and (C) requesting that the Collateral Agent release from the
Pledge the Pledged Preferred Securities that are a component of such PEPS
Units; and
(2) delivering the related PEPS Units to the Purchase Contract Agent.
Upon receipt of such notice and confirmation that Treasury Securities or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice, substantially in the form of Exhibit B hereto, to
release such Pledged Preferred Securities from the Pledge by Transfer to the
Purchase Contract Agent for distribution to such Holder, free and clear of
any lien, pledge or security interest created hereby.
(b) If a Tax Event Redemption has occurred and the Treasury Portfolio
has become a component of the PEPS Units, a Holder of PEPS Units shall not
have the right to establish or reestablish Treasury PEPS Units.
(c) If no Tax Event Redemption shall have occurred, but the Trust shall
have been liquidated, and the Debentures have become a component of the PEPS
Units, at any time on or prior to the seventh Business Day immediately
preceding August 16, 2002, a Holder of PEPS Units shall have the right to
substitute Treasury Securities or security entitlements thereto for the
Pledged Debentures comprising a part of such Holder's PEPS Units in integral
multiples of 40 PEPS Units by:
(1) Transferring to the Securities Intermediary for credit to the
Collateral Account Treasury Securities or security entitlements thereto
having a Value at maturity equal to the aggregate principal amount at
maturity of Pledged Debentures to be released, accompanied by a notice,
substantially in the form of Exhibit C to the Purchase Contract Agreement,
whereupon the Purchase Contract Agent shall deliver to the Collateral Agent
a notice, substantially in the form of Exhibit A hereto, (A) stating that
such Holder has Transferred Treasury Securities or security entitlements
thereto to the Securities Intermediary for credit to the Collateral
Account, (B) stating the Value of the Treasury Securities Transferred by
such Holder and (C) requesting that the Collateral Agent release from the
Pledge the Pledged Debentures that are a component of such PEPS Units; and
(2) Delivering the related PEPS Units to the Purchase Contract Agent.
Upon receipt of such notice and confirmation that Treasury Securities or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice, substantially in the form of Exhibit B hereto, to
release such Pledged Debentures from the Pledge by Transfer to the Purchase
Contract Agent for distribution to such Holder free and clear of any lien,
pledge or security interest created hereby.
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(d) Upon credit to the Collateral Account of Treasury Securities or
security entitlements thereto delivered by a Holder of PEPS Units and receipt of
the related instruction from the Collateral Agent, the Securities Intermediary
shall release the Pledged Preferred Securities or the Pledged Debentures, as the
case may be, and shall promptly transfer the same to the Purchase Contract Agent
for distribution to such Holder, free and clear of any lien, pledge or security
interest created hereby.
Section 5.3 Reestablishment of PEPS Units. (a) So long as no Tax Event
Redemption shall have occurred, and the Trust shall not have been liquidated, at
any time on or prior to the seventh Business Day immediately preceding August
16, 2002, a Holder of Treasury PEPS Units shall have the right to reestablish
PEPS Units by substitution of Preferred Securities or security entitlements
thereto for Pledged Treasury Securities in integral multiples of 40 Treasury
PEPS Units by:
(1) Transferring to the Securities Intermediary for credit to the
Collateral Account Preferred Securities or security entitlements thereto
having a liquidation amount equal to the Value of the Pledged Treasury
Securities to be released, accompanied by a notice, substantially in the
form of Exhibit C to the Purchase Contract Agreement, whereupon the
Purchase Contract Agent shall deliver to the Collateral Agent a notice,
substantially in the form of Exhibit C hereto, stating that such Holder has
Transferred Trust Preferred Securities or security entitlements thereto to
the Securities Intermediary for credit to the Collateral Account and
requesting that the Collateral Agent release from the Pledge the Pledged
Treasury Securities related to such Treasury PEPS Units; and
(2) Delivering the related Treasury PEPS Units to the Purchase
Contract Agent
Upon receipt of such notice and confirmation that Preferred Securities or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruction the Securities
Intermediary by a notice in the form provided in Exhibit D to release such
Pledged Treasury Securities from the Pledge by Transfer to the Purchase Contract
Agent for distribution to such Holder.
(b) If a Tax Event Redemption has occurred and the Treasury Portfolio has
become a component of the PEPS Units, a holder of a Treasury PEPS Unit shall not
have the right to reestablish a PEPS Unit.
(c) If no Tax Event Redemption shall have occurred, but the Trust shall
have been liquidated, and the Debentures have become a component of the PEPS
Units, at any time on or prior to the seventh Business Day immediately preceding
August 16, 2002, a Holder of Treasury PEPS Units shall have the right to
reestablish PEPS Units by substitution of Debentures or security entitlements
thereto for Pledged Treasury Securities in integral multiples of 40 Treasury
PEPS Units by:
(1) Transferring to the Securities Intermediary for credit to the
Collateral Account Debentures or security entitlements thereto having a
principal amount equal to the Value of the Pledged Securities to be
released, accompanied by a notice, substantially
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in the form of Exhibit C to the Purchase Contract Agreement, whereupon the
Purchase Contract Agent shall deliver to the Collateral Agent a notice,
substantially in the form of Exhibit C hereto, stating that such Holder has
Transferred the Debentures or security entitlements thereto to the
Securities Intermediary for credit to the Collateral Account and requesting
that the Collateral Agent release from the Pledge the Pledged Treasury
Securities related to such Treasury PEPS Units; and
(2) delivering the related Treasury PEPS Units to the Purchase
Contract Agent.
Section 5.4 Termination Event.
(a) Upon receipt by the Collateral Agent of written notice from the
Company or the Purchase Contract Agent that a Termination Event has occurred,
the Collateral Agent shall release all Collateral from the Pledge and shall
promptly Transfer:
(1) any Pledged Preferred Securities or the Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio (if a Tax Event Redemption has occurred and the Treasury
Portfolio has become a component of the PEPS Units) or the Pledged
Debentures (if the Trust has been liquidated, and the Debentures or
security entitlements thereto have become a component of the PEPS Units);
(2) any Pledged Treasury Securities, and
(3) payments by Holders (or the Permitted Investments of such
payments) pursuant to Section 5.5 hereof,
to the Purchase Contract Agent for the benefit of the Holders for distribution
to such Holders in accordance with their respective interests, free and clear of
any lien, pledge or security interest or other interest created hereby.
(b) If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Preferred Securities, the Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio, the Pledged
Debentures, the Pledged Treasury Securities or payments by Holders (or the
Permitted Investments of such payments) pursuant to Section 5.5 hereof, as the
case may be, as provided by this Section 5.4, the Purchase Contract Agent shall:
(1) use its best efforts to obtain an opinion of a nationally
recognized law firm reasonably acceptable to the Collateral Agent to the
effect that, as a result of the Company's being the debtor in such a
bankruptcy case, the Collateral Agent will not be prohibited from releasing
or Transferring the Collateral as provided in this Section 5.4, and shall
deliver such opinion to the Collateral Agent within ten days after the
occurrence of such Termination Event, and if (A) the Purchase Contract
Agent shall be unable to obtain such opinion within ten days after the
occurrence of such Termination Event or (B) the Collateral Agent shall
continue, after delivery of such opinion, to refuse to
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effectuate the release and Transfer of all Preferred Securities, Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, all the Pledged Debentures, the Pledged
Treasury Securities, the payments by Holders or the Permitted Investments
of such payments pursuant to Section 5.5 hereof or the Proceeds of any of
the foregoing, as the case may be, as provided in this Section 5.4, then
the Purchase Contract Agent shall within fifteen days after the occurrence
of such Termination Event commence an action or proceeding in the court
having jurisdiction of the Company's case under the Bankruptcy Code seeking
an order requiring the Collateral Agent to effectuate the release and
transfer of all Pledged Preferred Securities, Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, all the Pledged Debentures, the Pledged Treasury Securities, or
the payments by Holders or the Permitted Investments of such payments
pursuant to Section 5.5 hereof, or as the case may be, as provided by this
Section 5.4; or
(2) commence an action or proceeding like that described in clause
5.4(b)(1)(B) hereof within ten days after the occurrence of such
Termination Event.
Section 5.5 Cash Settlement.
(a) Upon receipt by the Collateral Agent of (1) a notice from the
Purchase Contract Agent promptly after the receipt by the Purchase Contract
Agent of a notice from a Holder of PEPS Units that such Holder has elected,
in accordance with the procedures specified in Section 5.4(a)(i) or (d)(i) of
the Purchase Contract Agreement, respectively, to effect a Cash Settlement
and (2) payment by such Holder by deposit in the Collateral Account prior to
or on 11:00 a.m. (New York City time) on the fifth Business Day immediately
preceding August 16, 2002, in the case of a PEPS Unit, unless a Tax Event
Redemption has occurred, or on the Business Day prior to November 16, 2002,
in the case of Treasury PEPS or a PEPS Unit, if a Tax Event Redemption has
occurred of the Purchase Price in lawful money of the United States by
certified or cashier's check or wire transfer of immediately available funds
payable to or upon the order of the Securities Intermediary, then the
Collateral Agent shall:
(1) instruct the Securities Intermediary promptly to invest any such
Cash in Permitted Investments;
(2) release from the Pledge a PEPS Unit holder's related Pledged
Preferred Securities, Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio,
or all the Pledged Debentures as to which such Holder has elected to
effect a Cash Settlement pursuant to this Section 5.5(a); and
(3) instruct the Securities Intermediary to Transfer all such Pledged
Preferred Securities, Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio, all the
Pledged Debentures or the Pledged Treasury Securities, as the case may be,
to the Purchase Contract Agent for the benefit of such
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Holder, in each case free and clear of the Pledge created hereby, for
distribution to such Holder.
Upon receipt of the proceeds upon the maturity of the Permitted Investments
on the Purchase Contract Settlement Date, the Collateral Agent shall (A)
instruct the Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an aggregate amount equal
to the Purchase Price, to the Company on the Purchase Contract Settlement Date,
and (B) instruct the Securities Intermediary to release any amounts in excess of
the Purchase Price earned from such Permitted Investments to the Purchase
Contract Agent for distribution to the such Holder.
(b) If a Holder of PEPS Units (if a Tax Event Redemption shall not have
occurred) notifies the Purchase Contract Agent as provided in paragraph
5.4(a)(i) of the Purchase Contract Agreement of its intention to pay the
Purchase Price in cash, but fails to make such payment as required by paragraph
5.4(a)(ii) of the Purchase Contract Agreement, such Holder shall be deemed to
have consented to the disposition of such Holder's Pledged Preferred Securities
or Pledged Debentures in accordance with paragraph 5.4(a)(iii) of the Purchase
Contract Agreement.
(c) If a Holder of PEPS Units (if a Tax Event Redemption shall have
occurred) notifies the Purchase Contract Agent as provided in paragraph
5.4(d)(i) of the Purchase Contract Agreement of its intention to pay the
Purchase Price in cash, but fails to make such payment as required by
paragraph 5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be
deemed to have elected to pay the Purchase Price in accordance with paragraph
5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m. (New York City time) on the Business Day
immediately preceding the Purchase Contract Settlement Date, the Securities
Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of cash
that it has received with respect to the Cash Settlement of PEPS Units and (ii)
the amount of cash that it has received with respect to the Cash Settlement of
Treasury PEPS Units.
Section 5.6 Early Settlement.
Upon receipt by the Collateral Agent of a notice from the Purchase Contract
Agent that a Holder of Securities has elected to effect Early Settlement of its
obligations under the Purchase Contracts forming a part of such Securities in
accordance with the terms of the Purchase Contracts and Section 5.9 of the
Purchase Contract Agreement (which notice shall set forth the number of such
Purchase Contracts as to which such Holder has elected to effect Early
Settlement), and that the Purchase Contract Agent has received from such Holder,
and paid to the Company as confirmed in writing by the Company, the related
Early Settlement Amounts pursuant to the terms of the Purchase Contracts and the
Purchase Contract Agreement and that all conditions to such Early Settlement
have been satisfied, then the Collateral Agent shall release from the Pledge,
(1) Pledged Preferred Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definitions at such term) of the
Treasury Portfolio or Pledged Debentures in the case of a Holder of PEPS Units
or (2) Pledged Treasury Securities, in the case of a Holder of Treasury PEPS
Units, with a Value equal to the product of
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(x) the Stated Amount times (y) the number of Purchase Contracts as to which
such Holder has elected to effect Early Settlement, and shall instruct the
Securities Intermediary to Transfer all such Pledged Preferred Securities or
the appropriate Applicable Ownership Interest (as specified in clause (A) of
the definitions at such term) of the Treasury Portfolio or Pledged Debentures
or Pledged Treasury Securities, as the case may be, to the Purchase Contract
Agent for the benefit of such Holder, in each case free and clear of the
Pledge created hereby, for distribution to such Holder.
Section 5.7 Application of Proceeds Settlement.
(a) If a Holder of PEPS Units (if a Tax Event Redemption has not
occurred) has not elected to make an effective Cash Settlement by notifying
the Purchase Contract Agent in the manner provided for in Section 5.4(a)(i)
in the Purchase Contract Agreement, or has given such notice but failed to
deliver the required cash prior to 11:00 A.M. (New York City time) on the
fifth Business Day immediately preceding August 16, 2002, such Holder shall
be deemed to have elected to pay for the shares of Common Stock to be issued
under such Purchase Contracts from the Proceeds of the remarketing of the
related Pledged Preferred Securities or Pledged Debentures. In such event,
the Collateral Agent shall instruct the Securities Intermediary to Transfer
the related Pledged Preferred Securities or Pledged Debentures to the
Remarketing Agent for remarketing. Upon receiving such Pledged Preferred
Securities or Pledged Debentures, the Remarketing Agent, pursuant to the
terms of the Remarketing Agreement, will use reasonable efforts to remarket
such Pledged Preferred Securities or Pledged Debentures on such date. The
Remarketing Agent will deposit the Treasury Consideration (as defined in the
Remarketing Agreement) purchased with the Proceeds of such remarketing in the
Collateral Account. On the Purchase Contract Settlement Date, the Collateral
Agent shall instruct the Securities Intermediary to apply a portion of the
Proceeds from the Treasury Consideration equal to the aggregate liquidation
amount of the Preferred Securities or aggregate principal amount of such
Pledged Debentures to satisfy in full such Holder's obligations to pay the
Purchase Price to purchase the shares of Common Stock under the related
Purchase Contracts. The balance of the Proceeds from the Treasury
Consideration, if any, shall be transferred to the Purchase Contract Agent
for the benefit of such Holder for distribution to such Holder.
If the Remarketing Agent advises the Collateral Agent in writing that there
has been a Failed Remarketing, thus resulting in an event of default under the
Purchase Contract Agreement and hereunder, the Collateral Agent, for the benefit
of the Company shall, at the written direction of the Company, dispose of the
Pledged Preferred Securities or Pledged Debentures in accordance with applicable
law and satisfy in full, from such disposition, such Holder's obligations to pay
the Purchase Price for the shares of Common Stock.
(b) If a Holder of PEPS Units (if a Tax Event Redemption has occurred)
has not elected to make an effective Cash Settlement by notifying the
Purchase Contract Agent in the manner provided for in Section 5.4(d)(i) of
the Purchase Contract Agreement, or has given such notice but failed to make
such payment in the manner required by Section 5.4(d)(ii) of the Purchase
Contract Agreement, such Holder shall be deemed to have elected to pay for
the shares of Common Stock to be issued under such Purchase Contracts from
the Proceeds of the related Pledged Treasury Securities or such Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as the case
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may be. After 11:00 a.m. (New York City time) on the Business Day
immediately prior to the Purchase Contract Settlement Date, the Securities
Intermediary, at the written direction of the Collateral Agent, shall invest
the Cash Proceeds of the maturing Pledged Treasury Securities or such
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury portfolios as the case may be, in Permitted
Investments. Without receiving any instruction from any such Holder, the
Collateral Agent shall apply the Proceeds of the related Pledged Treasury
Securities or such Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio as the case may be,
to the settlement of such Purchase Contracts on the Purchase Contract
Settlement Date. In the event the sum of the Proceeds from the related
Pledged Treasury Securities or such Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio as the case may be, and the investment earnings from the investment
in Permitted Investments exceeds the aggregate Purchase Price of the Purchase
Contracts being settled thereby, the Collateral Agent shall instruct the
Securities Intermediary to distribute such excess, when received,to the
Purchase Contract Agent for the benefit of such Holder for distribution to
such Holder.
Section 5.8 Tax Event Redemption. If the Tax Event Redemption shall
occur prior to the Purchase Contract Settlement Date, the Securities
Intermediary shall apply the Redemption Amount to purchase the Treasury
Portfolio and the Securities Intermediary shall credit the Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio to the Collateral Account and shall transfer the Applicable
Ownership Interest (as specified in clause (B) of the definition of such term)
of the Treasury Portfolio to the Purchase Contract Agent for distribution to the
Holders of the PEPS Units. Upon credit to the Collateral Account of the
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio having a Value equal to the liquidation
amount of the Pledged Preferred Securities or the aggregate principal amount of
the Pledged Debentures, the Securities Intermediary shall release the Pledged
Preferred Securities or the Pledged Debentures, as applicable, from the
Collateral Account and shall promptly transfer the Pledged Preferred Securities
to the Trust and the Pledged Debentures to the Company, as applicable.
Section 6. Voting Rights - Trust Preferred Securities and Pledged Debentures
The Purchase Contract Agent may exercise, or refrain from exercising, any
and all voting and other consensual rights pertaining to the Pledged Preferred
Securities or the Pledged Debentures or any part thereof for any purpose not
inconsistent with the terms of this Agreement and in accordance with the terms
of the Purchase Contract Agreement; provided, that the Purchase Contract Agent
shall not exercise or shall not refrain from exercising such right, as the case
may be, if, in the judgment of the Purchase Contract Agent, such action would
impair or otherwise have a material adverse effect on the value of all or any of
the Pledged Preferred Securities or the Pledged Debentures; and provided,
further, that the Purchase Contract Agent shall give the Company and the
Collateral Agent at least five Business Days' prior written notice of the manner
in which it intends to exercise, or its reasons for refraining from exercising,
any such right. Upon receipt of any notices and other communications in respect
of any Pledged Preferred Securities or the Pledged Debentures, including notice
of any meeting at which holders of the Preferred Securities or the Pledged
Debentures are entitled to vote or solicitation of consents, waivers or proxies
of holders of the Preferred Securities or Debentures, the Collateral Agent shall
use reasonable efforts to send promptly to the Purchase Contract Agent such
notice
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or communication, and as soon as reasonably practicable after receipt of
a written request therefor from the Purchase Contract Agent, execute and deliver
to the Purchase Contract Agent such proxies and other instruments in respect of
such Pledged Preferred Securities or the Pledged Debentures (in form and
substance satisfactory to the Collateral Agent) as are prepared by the Purchase
Contract Agent with respect to the Pledged Preferred Securities or the Pledged
Debentures.
Section 7. Rights and Remedies.
Section 7.1 Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies specified in Section 5.7 hereof
or otherwise available at law or in equity, after an event of default (as
specified in Section 7.1(b) below) hereunder, the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party
under the UCC (whether or not the UCC is in effect in the jurisdiction where the
rights and remedies are asserted) and the TRADES Regulations and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted. Without limiting the generality of the foregoing, such remedies may
include, to the extent permitted by applicable law, (1) retention of the Pledged
Preferred Securities, Pledged Debentures, Pledged Treasury Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) in full satisfaction of the Holders' obligations under
the Purchase Contracts and the Purchase Contract Agreement or (2) sale of the
Pledged Preferred, Securities, Pledged Debentures, Pledged Treasury Securities
or the appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) in one or more public or private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, or on account of principal payments of any Pledged
Treasury Securities as provided in Section 3 hereof, in satisfaction of the
Obligations of the Holder of the PEPS Units (if a Tax Event Redemption has
occurred) of which such appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio or the
Holder of the Treasury PEPS Units of which such Pledged Treasury Securities, as
applicable, is a part under the related Purchase Contracts, the inability to
make such payments shall constitute an event of default hereunder and the
Collateral Agent shall have and may exercise, with reference to such Pledged
Treasury Securities or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as applicable, any and all of the rights and remedies available to a
secured party under the UCC and the TRADES Regulations after default by a
debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) the liquidation amount of
the Preferred Securities, (ii) the principal amount of the Debentures, (iii) the
principal amount of the Pledged Treasury Securities and (iv) the principal
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amount of the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, subject, in each case, to
the provisions of Section 3 hereof, and as otherwise granted herein.
(d) The Purchase Contract Agent and each Holder of Securities agrees that,
from time to time, upon the written request of the Collateral Agent or the
Purchase Contract Agent, or such Holder shall execute and deliver such further
documents and do such other acts and things as the Collateral Agent may
reasonably request in order to maintain the Pledge, and the perfection and
priority thereof, and to confirm the rights of the Collateral Agent hereunder.
The Purchase Contract Agent shall have no liability to any Holder for executing
any documents or taking any such acts requested by the Collateral Agent
hereunder, except for liability for its own negligent acts, its own negligent
failure to act or its own willful misconduct.
Section 7.2 Substitution of Debentures. If the Trust shall have been
liquidated prior to the Purchase Contract Settlement Date, the Securities
Intermediary shall transfer to the Collateral Agent Debentures having a Value
equal to the liquidation amount of the Pledged Preferred Securities for credit
to the Collateral Account. Upon credit to the Collateral Account of such
Debentures, the Collateral Agent shall release the Pledged Preferred Securities
from the Collateral Account and shall promptly transfer the same to the Trust.
Section 7.3 Tax Event Redemption. Upon the occurrence of a Tax Event
Redemption prior to the Purchase Contract Settlement Date, the Redemption Price
payable on the Tax Event Redemption Date with respect to the Applicable
Principal Amount shall be credited to the Collateral Account by the Property
Trustee or, upon a dissolution of the Trust and the distribution of the related
Debentures, by the Indenture Trustee on or prior to 12:30 p.m., New York City
time, by federal funds check or wire transfer of immediately available funds.
The Collateral Agent is hereby authorized to present the Pledged Preferred
Securities or the Pledged Debentures for payment as may be required by their
respective terms. Upon receipt of such funds, the Pledged Preferred Securities
or Pledged Debentures, as the case may be, shall be released from the Collateral
Account. In the event such funds are credited to the Collateral Account, the
Collateral Agent, at the written direction of the Company, shall instruct the
Securities Intermediary to (a) apply an amount equal to the Redemption Amount of
such Redemption Price to purchase the Treasury Portfolio from the Quotation
Agent for credit to the Collateral Account and (b) promptly remit the remaining
portion of such Redemption Price, if any, to the Purchase Contract Agent for
payment to the Holders of PEPS Units.
Section 7.4 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Trust Preferred Securities, Debentures or
security entitlements for any of them or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, for financial assets
held in the Collateral Account, such substitution shall not constitute a
novation of the security interest created hereby.
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Section 8. Representations and Warranties; Covenants.
Section 8.1 Representations and Warranties.
Each Holder from time to time, acting through the Purchase Contract Agent
as attorney-in-fact (it being understood that the Purchase Contract Agent shall
not be liable for any representation or warranty made by or on behalf of a
Holder), hereby represents and warrants to the Collateral Agent (with respect to
such Holder's interest in the Collateral), which representations and warranties
shall be deemed repeated on each day a Holder Transfers Collateral that:
(1) such Holder has the power to grant a security interest in and
lien on the Collateral;
(2) such Holder is the sole beneficial owner of the Collateral and,
in the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right to
Transfer, the Collateral it Transfers to the Securities Intermediary for
credit to the Collateral Account, free and clear of any security interest,
lien, encumbrance, call, liability to pay money or other restriction other
than the security interest and lien granted under Section 2 hereof;
(3) upon the Transfer of the Collateral to the Securities
Intermediary for credit to the Collateral Account, the Collateral Agent,
for the benefit of the Company, will have a valid and perfected first
priority security interest therein (assuming that any central clearing
operation or any securities intermediary or other entity not within the
control of the Holder involved in the Transfer of the Collateral, including
the Collateral Agent and the Securities Intermediary, gives the notices and
takes the action required of it hereunder and under applicable law for
perfection of that interest and assuming the establishment and exercise of
control pursuant to Section 4 hereof); and
(4) the execution and performance by the Holder of its obligations
under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the
security interest and lien granted under Section 2 hereof or violate any
provision of any existing law or regulation applicable to it or of any
mortgage, charge, pledge, indenture, contract or undertaking to which it is
a party or which is binding on it or any of its assets.
Section 8.2 Covenants.
The Holders from time to time, acting through the Purchase Contract Agent
as their attorney-in-fact (it being understood that the Purchase Contract Agent
shall not be liable for any covenant made by or on behalf of a Holder), hereby
covenant to the Collateral Agent that for so long as the Collateral remains
subject to the Pledge:
(1) neither the Purchase Contract Agent nor such Holders will create
or purport to create or allow to subsist any mortgage, charge, lien, pledge
or any other security interest whatsoever over the Collateral or any part
of it other than pursuant to this Agreement; and
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(2) neither the Purchase Contract Agent nor such Holders will sell or
otherwise dispose (or attempt to dispose) of the Collateral or any part of
it except for the beneficial interest therein, subject to the Pledge
hereunder, transferred in connection with the Transfer of the Securities.
Section 9. The Collateral Agent and the Securities Intermediary.
It is hereby agreed as follows:
Section 9.1 Appointment, Powers and Immunities.
The Collateral Agent shall act as agent for the Company hereunder with such
powers as are specifically vested in the Collateral Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Collateral Agent shall:
(1) have no duties or responsibilities except those expressly set
forth in this Agreement and no implied covenants or obligations shall be
inferred from this Agreement against the Collateral Agent, nor shall the
Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof;
(2) not be responsible for any recitals contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by it under, this Agreement, the Securities or the Purchase
Contract Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder or for the
perfection, priority or, except as expressly required hereby, maintenance
of any security interest created hereunder;
(3) not be required to initiate or conduct any litigation or
collection proceedings hereunder (except pursuant to directions furnished
under Section 9.2 hereof, subject to Section 9.6 hereof);
(4) not be responsible for any action taken or omitted to be taken by
it hereunder or under any other document or instrument referred to or
provided for herein or in connection herewith or therewith, except for its
own negligence or willful misconduct; and
(5) not be required to advise any party as to selling or retaining,
or taking or refraining from taking any action with respect to, any
securities or other property deposited hereunder.
Subject to the foregoing, during the term of this Agreement, the Collateral
Agent shall take all reasonable action in connection with the safekeeping and
preservation of the Collateral hereunder.
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No provision of this Agreement shall require the Collateral Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the Value of the Collateral.
Notwithstanding the foregoing, each of the Collateral Agent and the Securities
Intermediary in its individual capacity hereby waives any right of setoff,
bankers' lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
Section 9.2 Instructions of the Company.
The Company shall have the right, by one or more instruments in writing
executed and delivered to the Collateral Agent, to direct the time, method and
place of conducting any proceeding for the realization of any right or remedy
available to the Collateral Agent, or of exercising any power conferred on the
Collateral Agent, or to direct the taking or refraining from taking of any
action authorized by this Agreement; provided, however, that (i) such direction
shall not conflict with the provisions of any law or of this Agreement and (ii)
the Collateral Agent shall be adequately indemnified as provided herein. Nothing
contained in this Section 9.2 shall impair the right of the Collateral Agent in
its discretion to take any action or omit to take any action which it deems
proper and which is not inconsistent with such direction.
Section 9.3 Reliance by Collateral Agent and Securities Intermediary.
Each of the Securities Intermediary and the Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex or facsimile) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated therein)
and upon advice and statements of legal counsel and other experts selected by
the Collateral Agent and the Securities Intermediary. As to any matters not
expressly provided for by this Agreement, the Collateral Agent and the
Securities Intermediary shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions given by the
Company in accordance with this Agreement.
Section 9.4 Rights in Other Capacities.
The Collateral Agent and the Securities Intermediary and their affiliates
may (without having to account therefor to the Company) accept deposits from,
lend money to, make their investments in and generally engage in any kind of
banking, trust or other business with the Purchase Contract Agent, any other
Person interested herein and any Holder of Securities (and any of their
respective subsidiaries or affiliates) as if it were not acting as the
Collateral Agent or the Securities Intermediary, as the case may be, and the
Collateral Agent, the Securities Intermediary and their affiliates may accept
fees and other consideration from the Purchase Contract Agent and any Holder of
Securities without having to account for the same to the Company; provided that
each of the Securities Intermediary and the Collateral Agent covenants and
agrees with the Company that it shall not accept, receive or permit there to be
created in favor of itself and shall take no affirmative action to permit there
to be created in favor of any
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<PAGE>
other Person, any security interest, lien or other encumbrance of any kind in
or upon the Collateral other than the lien created by the Pledge.
Section 9.5 Non-Reliance on Collateral Agent and Securities
Intermediary.
Neither the Securities Intermediary nor the Collateral Agent shall be
required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. Neither the Collateral
Agent nor the Securities Intermediary shall have any duty or responsibility to
provide the Company with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
possession of the Collateral Agent or the Securities Intermediary or any of
their respective affiliates.
Section 9.6 Compensation and Indemnity.
The Company agrees to:
(1) pay the Collateral Agent and the Securities Intermediary from
time to time such compensation as shall be agreed in writing between the
Company and the Collateral Agent or the Securities Intermediary, as the
case may be, for all services rendered by them hereunder; and
(2) indemnify the Collateral Agent and the Securities Intermediary
for, and hold each of them harmless from and against, any loss, liability
or reasonable out-of-pocket expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with
the acceptance or administration of its powers and duties under this
Agreement, including the reasonable out-of-pocket costs and expenses
(including reasonable fees and expenses of counsel) of defending itself
against any claim or liability in connection with the exercise or
performance of such powers and duties.
Section 9.7 Failure to Act.
In the event of any ambiguity in the provisions of this Agreement or any
dispute between or conflicting claims by or among the parties hereto or any
other Person with respect to any funds or property deposited hereunder, the
Collateral Agent and the Securities Intermediary shall be entitled, after prompt
notice to the Company and the Purchase Contract Agent, at its sole option, to
refuse to comply with any and all claims, demands or instructions with respect
to such property or funds so long as such dispute or conflict shall continue,
and the Collateral Agent and the Securities Intermediary shall not be or become
liable in any way to any of the parties hereto for its failure or refusal to
comply with such conflicting claims, demands or instructions. The Collateral
Agent and the Securities Intermediary shall be entitled to refuse to act until
either:
(1) such conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by
agreement between the
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<PAGE>
conflicting parties as evidenced in a writing satisfactory to the
Collateral Agent or the Securities Intermediary; or
(2) the Collateral Agent or the Securities Intermediary shall have
received security or an indemnity satisfactory to it sufficient to save it
harmless from and against any and all loss, liability or reasonable
out-of-pocket expense which it may incur by reason of its acting.
The Collateral Agent and the Securities Intermediary may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent or the Securities Intermediary may deem necessary.
Notwithstanding anything contained herein to the contrary, neither the
Collateral Agent nor the Securities Intermediary shall be required to take any
action that is in its opinion contrary to law or to the terms of this Agreement,
or which would in its opinion subject it or any of its officers, employees or
directors to liability.
Section 9.8 Resignation of Collateral Agent and Securities Intermediary.
(a) Subject to the appointment and acceptance of a successor Collateral
Agent as provided below:
(1) the Collateral Agent may resign at any time by giving notice
thereof to the Company and the Purchase Contract Agent as attorney-in-fact
for the Holders of Securities;
(2) the Collateral Agent may be removed at any time by the Company;
and
(3) if the Collateral Agent fails to perform any of its material
obligations hereunder in any material respect for a period of not less than
20 days after receiving written notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Collateral Agent
may be removed by the Purchase Contract Agent.
The Purchase Contract Agent shall promptly notify the Company of any removal of
the Collateral Agent pursuant to clause (3) of the immediately preceding
sentence. Upon any such resignation or removal, the Company shall have the right
to appoint a successor Collateral Agent. If no successor Collateral Agent shall
have been so appointed and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or the
Company or the Purchase Contract Agent giving notice of such removal, then the
retiring Collateral Agent may petition any court of competent jurisdiction for
the appointment of a successor Collateral Agent. The Collateral Agent shall be a
bank which has an office in New York City with a combined capital and surplus of
at least $50,000,000 and shall not be the Purchase Contract Agent or any of its
affiliates. Upon the acceptance of any appointment as Collateral Agent hereunder
by a successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall take
all appropriate action to transfer any money and property held by it hereunder
(including the Collateral) to such successor Collateral Agent. The retiring
Collateral Agent shall, upon such succession, be discharged from its duties and
obligations as Collateral Agent hereunder. After any retiring Collateral Agent's
resignation hereunder as Collateral Agent, the provisions of this Section 9
shall continue in effect
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<PAGE>
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Collateral Agent.
(b) Subject to the appointment and acceptance of a successor Securities
Intermediary as provided below:
(1) the Securities Intermediary may resign at any time by giving
notice thereof to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders of Securities;
(2) the Securities Intermediary may be removed at any time by the
Company; and
(3) if the Securities Intermediary fails to perform any of its
material obligations hereunder in any material respect for a period of not
less than 20 days after receiving written notice of such failure by the
Purchase Contract Agent and such failure shall be continuing, the
Securities Intermediary may be removed by the Purchase Contract Agent.
The Purchase Contract Agent shall promptly notify the Company of any removal of
the Securities Intermediary pursuant to clause (3) of the immediately preceding
sentence. Upon any such resignation or removal, the Company shall have the right
to appoint a successor Securities Intermediary. If no successor Securities
Intermediary shall have been so appointed and shall have accepted such
appointment within 30 days after the retiring Securities Intermediary's giving
of notice of resignation or the Company or the Purchase Contract Agent giving
notice of such removal, then the retiring Securities Intermediary may petition
any court of competent jurisdiction for the appointment of a successor
Securities Intermediary. The Securities Intermediary shall be a bank which has
an office in New York City with a combined capital and surplus of at least
$50,000,000 and shall not be the Purchase Contract Agent or any of its
affiliates. Upon the acceptance of any appointment as Securities Intermediary
hereunder by a successor Securities Intermediary, such successor Securities
Intermediary shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Securities Intermediary, and the
retiring Securities Intermediary shall take all appropriate action to transfer
any money and property held by it hereunder (including the Collateral) to such
successor Securities Intermediary. The retiring Securities Intermediary shall,
upon such succession, be discharged from its duties and obligations as
Securities Intermediary hereunder. After any retiring Securities Intermediary's
resignation hereunder as Securities Intermediary, the provisions of this Section
9 shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Securities Intermediary.
Section 9.9 Right to Appoint Agent or Advisor.
The Collateral Agent shall have the right to appoint agents or advisors in
connection with any of its duties hereunder, and the Collateral Agent shall not
be liable for any action taken or omitted by, or in reliance upon the advice of,
such agents or advisors selected in good faith. The appointment of agents
pursuant to this Section 9.9 shall be subject to prior consent of the Company,
which consent shall not be unreasonably withheld.
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Section 9.10 Survival.
The provisions of this Section 9 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent or the
Securities Intermediary.
Section 9.11 Exculpation.
Anything contained in this Agreement to the contrary notwithstanding, in no
event shall the Collateral Agent or the Securities Intermediary or their
officers, directors, employees or agents be liable under this Agreement to any
third party for indirect, special, punitive, or consequential loss or damage of
any kind whatsoever, including lost profits, whether or not the likelihood of
such loss or damage was known to the Collateral Agent or the Securities
Intermediary, or any of them, incurred without any act or deed that is found to
be attributable to gross negligence or willful misconduct on the part of the
Collateral Agent or the Securities Intermediary.
Section 10. Amendment.
Section 10.1 Amendment Without Consent of Holders.
Without the consent of any Holders, the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, at any time and from
time to time, may amend this Agreement, in form satisfactory to the Company, the
Collateral Agent, the Securities Intermediary and the Purchase Contract Agent,
to:
(1) evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company;
(2) evidence and provide for the acceptance of appointment hereunder
by a successor Collateral Agent, Securities Intermediary or Purchase
Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company,
provided such covenants or such surrender do not adversely affect the
validity, perfection or priority of the Pledge created hereunder; or
(4) cure any ambiguity (or formal defect), correct or supplement any
provisions herein which may be inconsistent with any other such provisions
herein, or make any other provisions with respect to such matters or
questions arising under this Agreement, provided such action shall not
adversely affect the interests of the Holders.
Section 10.2 Amendment With Consent of Holders.
With the consent of the Holders of not less than a majority of the Purchase
Contracts at the time outstanding, by Act of such Holders delivered to the
Company, the Purchase Contract Agent, the Securities Intermediary or the
Collateral Agent, as the case may be, the Company, when duly authorized, the
Purchase Contract Agent, the Securities Intermediary and the Collateral Agent
may amend this Agreement for the purpose of modifying in any manner the
25
<PAGE>
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that no such supplemental agreement shall,
without the unanimous consent of the Holders of each Outstanding Security
adversely affected thereby:
(1) Change the amount or type of Collateral underlying a Security
(except for the rights of holders of PEPS Units to substitute the Treasury
Securities for the Pledged Preferred Securities or the Pledged Debentures,
as the case may be, or the rights of Holders of Treasury PEPS Units to
substitute Preferred Securities or Debentures, as applicable, for the
Pledged Treasury Securities), impair the right of the Holder of any
Security to receive distributions on the underlying Collateral or otherwise
adversely affect the Holder's rights in or to such Collateral; or
(2) otherwise effect any action that would require the consent of the
Holder of each Outstanding Security affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent of whose
Holders is required for any such amendment; provided that if any amendment
or proposal referred to above would adversely affect only the PEPS Units or
only the Treasury PEPS Units, then only the affected class of Holders as of
the record date for the Holders entitled to vote thereon will be entitled
to vote on such amendment or proposal, and such amendment or proposal shall
not be effective except with the consent of Holders of not less than a
majority of such class; provided, further, that the unanimous consent of
the Holders of each outstanding Purchase Contract of such class affected
thereby shall be required to approve any amendment or proposal specified in
clauses (1) through (3) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 10.3 Execution of Amendments.
In executing any amendment permitted by this Section, the Collateral Agent,
the Securities Intermediary and the Purchase Contract Agent shall be entitled to
receive and (subject to Section 7.1 of the Purchase Contract Agreement with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent, if
any, to the execution and delivery of such amendment have been satisfied.
Section 10.4 Effect of Amendments.
Upon the execution of any amendment under this Section, this Agreement
shall be modified in accordance therewith, and such amendment shall form a part
of this Agreement for all purposes; and every Holder of Certificates theretofore
or thereafter authenticated, executed on behalf of the Holders and delivered
under the Purchase Contract Agreement shall be bound thereby.
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Section 10.5 Reference to Amendments.
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a notation
in form approved by the Purchase Contract Agent and the Collateral Agent as to
any matter provided for in such amendment. If the Company shall so determine,
new Security Certificates so modified as to conform, in the opinion of the
Collateral Agent, the Purchase Contract Agent and the Company, to any such
amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in accordance with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
Section 11. Miscellaneous.
Section 11.1 No Waiver.
No failure on the part of the Collateral Agent or any of its agents to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Collateral Agent or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
Section 11.2 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. The Company, the Collateral Agent, the
Securities Intermediary and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact, hereby
submit to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York state court sitting
in New York City for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Company, the Collateral Agent, the Securities Intermediary and the Holders
from time to time of the Securities, acting through the Purchase Contract
Agent as their attorney-in-fact, irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter
have to the laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
Section 11.3 Notices.
All notices, requests, consents and other communications provided for
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made in writing (including,
without limitation, by telecopy) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof or,
as to any party, at such other address as shall be designated by such party in a
notice to the other parties. Except as otherwise provided in this Agreement, all
such communications shall be
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<PAGE>
deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case
given or addressed as aforesaid.
Section 11.4 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, and the Holders from
time to time of the Securities, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
Section 11.5 Counterparts.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
Section 11.6 Severability.
If any provision hereof is invalid and unenforceable in any jurisdiction,
then, to the fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
Section 11.7 Expenses, etc.
The Company agrees to reimburse the Collateral Agent and the Securities
Intermediary for:
(1) all reasonable out-of-pocket costs and expenses of the Collateral
Agent and the Securities Intermediary (including, without limitation, the
reasonable fees and expenses of counsel to the Collateral Agent and the
Securities Intermediary), in connection with (i) the negotiation,
preparation, execution and delivery or performance of this Agreement and
(ii) any modification, supplement or waiver of any of the terms of this
Agreement;
(2) all reasonable costs and expenses of the Collateral Agent and the
Securities Intermediary (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securities
to satisfy its obligations under the Purchase Contracts forming a part of
the Securities and (ii) the enforcement of this Section 11.7;
(3) and all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or
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any other document referred to herein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest
contemplated hereby.
Section 11.8 Security Interest Absolute.
All rights of the Collateral Agent and security interests hereunder, and
all obligations of the Holders from time to time hereunder, shall be absolute
and unconditional irrespective of:
(1) any lack of validity or enforceability of any provision of the
Purchase Contracts or the Securities or any other agreement or instrument
relating thereto;
(2) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of the Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any consent
to any departure from any requirement of, the Purchase Contract Agreement
or any Purchase Contract or any other agreement or instrument relating
thereto; or
(3) any other circumstance which might otherwise constitute a defense
available to, or discharge of, a borrower, a guarantor or a pledgor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
__________________________ ______________________________________
UTILICORP UNITED INC. THE CHASE MANHATTAN BANK, as
Purchase Contract Agent and as attorney-
in-fact of the Holders from time to time
of the Securities
By: ___________________________ By: __________________________________
Name: Dale J. Wolf Name:
Title: Vice President Finance, Title:
Treasurer, and
Corporate Secretary
Address for Notices: Address for Notices:
20 West Ninth Street 450 West 33rd Street
Kansas City, Missouri 64105 New York, New York 10001
Attention: Dale J. Wolf Attention: Corporate Trust Group
Telecopy: Telecopy: (212) 946-8159
_______________________________ ______________________________________
THE FIRST NATIONAL BANK THE FIRST NATIONAL BANK OF
OF CHICAGO, as Collateral Agent CHICAGO, as Securities Intermediary
By: __________________________ By: _________________________________
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
One First National Plaza One First National Plaza
Suite 0126 Suite 0126
Chicago, Illinois 60670-0126 Chicago, Illinois 60670-0126
Attention: Global Corporate Trust Attention: Global Corporate Trust
Services Services
Telecopy: (312) 407-1708 Telecopy: (312) 407-1708
30
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EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury PEPS Units)
The First National Bank of Chicago
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration Department
Telecopy: (312) 407-1708
Re: PEPS Units of UtiliCorp United Inc. (the "Company") and
UCU Capital Trust I
Please refer to the Pledge Agreement, dated as of September ____, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent, The First
National Bank of Chicago, as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of PEPS Units
from time to time. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.2 of the Pledge Agreement
that the holder of securities named below (the "Holder") has elected to
substitute $__________ Value of Treasury Securities or security entitlements
thereto in exchange for [an equal Value of [Pledged Preferred Securities]
relating to _________ PEPS Units] and has delivered to the undersigned a notice
stating that the Holder has Transferred such Treasury Securities or security
entitlements thereto to the Securities Intermediary, for credit to the
Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, to release to the undersigned [an equal
Value of [Pledged Preferred Securities] [Pledged Debentures]] in accordance with
Section 5.2 of the Pledge Agreement.
THE CHASE MANHATTAN BANK
Date:______________
By:______________________________
Name:
Title:
<PAGE>
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the [Pledged Preferred
Securities] [Pledged Debentures]:
_____________________________ ___________________________________
Name Social Security or other
Taxpayer Identification Number,
if any
_____________________________
Address
_____________________________
_____________________________
<PAGE>
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury PEPS Units)
The First National Bank of Chicago
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration Department
Telecopy: (312) 407-1708
Re: PEPS Units of UtiliCorp United Inc. (the "Company") and UCU Capital
Trust I Securities Account No. ______ entitled "The First National
Bank of Chicago," as Collateral Agent, Securities Account ("UCU
Capital Trust I")" (the "Collateral Account")
Please refer to the Pledge Agreement, dated as of September _____, 1999
(the "Pledge Agreement"), among the Company, you, as Securities Intermediary,
The Chase Manhattan Bank, as Purchase Contract Agent and as attorney-in-fact for
the holders of PEPS Units from time to time, and the undersigned, as Collateral
Agent. Capitalized terms used herein but not defined shall have the meanings set
forth in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities or
security entitlements thereto has been credited to the Collateral Account by or
for the benefit of _________, as Holder of PEPS Units (the "Holder"), you are
hereby instructed to release from the Collateral Account [an equal Value of
[Preferred Securities or security entitlements thereto] [Debentures or security
entitlements thereto]] relating to _____ PEPS Units of the Holder] by Transfer
to the Purchase Contract Agent.
THE FIRST NATIONAL BANK OF CHICAGO
Dated:
------------------------ By:
-----------------------------
Name:
Title:
<PAGE>
Please print name and address of Holder:
- ---------------------------------------- ----------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
- ----------------------------------------
Address
- ----------------------------------------
- ----------------------------------------
<PAGE>
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of PEPS Units)
The First National Bank of Chicago
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration Department
Telecopy: (312) 407-1708
Re: __________PEPS Units of UtiliCorp United Inc. (the "Company")
and UCU Capital Trust I
Please refer to the Pledge Agreement dated as of September _____, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent, The First
National Bank of Chicago, as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of PEPS Units
from time to time. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute [$______________ Value of [Preferred Securities or security
entitlements thereto] [Debentures or security entitlements thereto]] in exchange
for $__________ Value of Pledged Treasury Securities and has delivered to the
undersigned a notice stating that the holder has Transferred such [Preferred
Securities or security entitlements thereto] [Debentures or security
entitlements thereto] to the Securities Intermediary, for credit to the
Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such [Preferred Securities or security entitlements thereto]
[Debentures or security entitlements thereto] have been credited to the
Collateral Account, to release to the undersigned $__________ Value of Treasury
Securities or security entitlements thereto related to _____ PEPS Units of such
Holder in accordance with Section 5.3(a) of the Pledge Agreement.
THE CHASE MANHATTAN BANK
Date: By:
----------------------- ----------------------------
Name:
Title:
<PAGE>
Please print name and address of Holder electing to substitute [Preferred
Securities or security entitlements thereto] [Pledged Debentures or security
entitlements thereto] for Pledged Treasury Securities:
- --------------------------------- -------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
- -------------------------
Address
- -------------------------
- -------------------------
<PAGE>
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of PEPS Units)
The First National Bank of Chicago
1 North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration Department
Telecopy: 312-407-1708
Re: _______________PEPS Units of UtiliCorp United Inc.
(the "Company") and UCU Capital Trust I
Securities Account No. ________ entitled "The First National
Bank of Chicago, as Collateral Agent, Securities Account
UCU Capital Trust I)" (the "Collateral Account")
Please refer to the Pledge Agreement dated as of September ____, 1999 (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary, The
Chase Manhattan Bank, as Purchase Contract Agent and as attorney-in-fact for the
holders of PEPS Units from time to time, and the undersigned, as Collateral
Agent. Capitalized terms used herein but no defined shall have the meaning set
forth in the Pledge Agreement.
When you have confirmed that $ __________ Value of [Preferred Securities or
security entitlements thereto] [Debentures or security entitlements thereto] has
been credited to the Collateral Account by or for the benefit of
________________, as Holder of PEPS Units (the "Holder"), you are hereby
instructed to release from the Collateral Account $ ________________ Value of
Treasury Securities or security entitlements thereto by Transfer to the Purchase
Contract Agent.
THE FIRST NATIONAL BANK OF CHICAGO
Dated: By:
------------------------ -----------------------------
Name:
Title:
<PAGE>
- ------------------------------ -------------------------------------
Name Social Security or other
Taxpayer Identification Number, if any
- ------------------------------
Address
- ------------------------------
- ------------------------------
<PAGE>
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Telecopier No.: 212-946-8159
Attention: Corporate Trust Group
Re: ____________PEPS Units of UtiliCorp United Inc.
(the "Company") and UCU Capital Trust I
Please refer to the Pledge Agreement dated as of September ____, 1999 (the
"Pledge Agreement"), by and among you, the Company, The First National Bank of
Chicago, as Collateral Agent and the undersigned, as Securities Intermediary.
Unless otherwise defined herein, terms defined in the Pledge Agreement are used
herein as defined therein.
In accordance with Section 5.5(d) of the Pledge Agreement, we hereby notify
you that as of 11:00 a.m., [(on the _____ Business Day immediately preceding
August 16, 2000)], we have received (i) $ _______________ in immediately
available funds paid in an aggregate Amount equal to the Purchase Price to the
Company on the Purchase Contract Settlement Date with respect to
________________ PEPS Units and (ii) $ ___________ in immediately available
funds paid in an aggregate amount equal to the Purchase Price to the Company on
the Purchase Contract Settlement Date with respect to ______ Treasury PEPS
Units.
THE FIRST NATIONAL BANK OF CHICAGO
Date: By:
------------------------ ------------------------
Name:
Title:
<PAGE>
EXHIBIT 5(a)
[Letterhead of Blackwell Sanders Peper Martin LLP]
September 9, 1999
UtiliCorp United Inc.
20 West 9th Street
Kansas City, Missouri 64105
Ladies and Gentlemen:
We have acted as counsel to UtiliCorp United Inc., a Delaware corporation
(the "Company") and UCU Capital Trust I, a Delaware statutory business trust
(the "Trust") in connection with their filing of a Registration Statement on
Form S-3 (the "Registration Statement") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the purpose of
registering the following securities to be offered from time to time by the
Company and the Trust on the terms to be determined at the time of the offering:
(i) Stock Purchase Contracts of the Company (the "Stock Purchase Contracts");
(ii) Stock Purchase Units, consisting of Stock Purchase Contracts and Trust
Preferred Securities, as defined below; (iii) Common Stock, par value $1.00, of
the Company (the "Common Stock"); (iv) Preferred Securities of the Trust (the
"Trust Preferred Securities"); (v) Subordinated Debentures of the Company (the
"Subordinated Debentures"); (vi) the guarantee of the Company in connection with
the Trust Preferred Securities (the "Guarantee"); and (vii) Debt Securities of
the Company (the "Debt Securities").
We are familiar with the proceedings to date with respect to such proposed
sale and have examined such records, documents and matters of law and satisfied
ourselves as to such matters of fact as we have considered relevant for the
purposes of this opinion.
On the basis of such examination, we are of the opinion that, when the
Registration Statement, as it may be amended, has become effective under the
Securities Act and any applicable state securities or Blue Sky laws have been
complied with:
1. The Stock Purchase Contracts will be valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles at such time as: (i) the Purchase Contract Agreement
between the Company and The Chase Manhattan Bank, as purchase contract agent,
has been duly executed and delivered so as not to violate any applicable law
or result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction
<PAGE>
imposed by any court or governmental or regulatory body having jurisdiction
over the Company; (ii) the terms of the Stock Purchase Contracts have been
authorized by appropriate action of the Company; and (iii) the Stock Purchase
Contracts have been duly executed and delivered as contemplated by the
Registration Statement and any prospectus supplement relating thereto.
2. The Common Stock, which has been duly authorized, will be validly
issued, fully paid, and nonassessable at such time as: (i) the terms of the
issuance and sale of the Common Stock have been duly authorized by
appropriate action of the Company; and (ii) the Common Stock has been duly
issued and sold as contemplated by the Registration Statement and any
prospectus supplement relating thereto.
3. The Subordinated Debentures will be valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles at such time as: (i) the terms of the Subordinated
Debentures and of their issuance and sale have been authorized by appropriate
action of the Company; (ii) the Subordinated Debentures have been duly
executed, authenticated and delivered in accordance with the applicable
indenture or supplemental indenture; and (iii) the Subordinated Debentures
have been duly issued and sold as contemplated by the Registration Statement
and any prospectus supplement relating thereto and the applicable indenture
or supplemental indenture.
4. The Guarantee will be a valid and legally binding obligation of the
Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles at such time as: (i) the
Registration Statement has become effective under the Securities Act; (ii) the
Guarantee Agreement by the Company and The Chase Manhattan Bank, as guarantee
trustee, for the benefit of the holders of securities of the Trust has been duly
executed and delivered so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon by any court
or governmental or regulatory body having jurisdiction over the Company; and
(iii) the Preferred Securities have been duly issued and delivered by the Trust
as contemplated by the Registration Statement and any prospectus supplement
relating thereto.
5. The Debt Securities will be valid and legally binding obligations
of the Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles at such
time as: (i) the terms of the Debt Securities and of their issuance and sale
have been approved by appropriate action of the Company; (ii) the Debt
Securities have been duly executed, authenticated and delivered in accordance
with the applicable indenture or supplemental indenture; and (iii) the Debt
Securities have been duly issued and sold as contemplated by the Registration
Statement and any prospectus supplement relating thereto and the applicable
indenture or supplemental indenture.
We hereby consent to the reference to us under the heading "Legal Matters"
in the prospectus constituting a part of the Registration Statement and to the
filing of this opinion as Exhibit 5(a) to the Registration Statement. By giving
this consent, we do not admit that we are
- 2 -
<PAGE>
within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended and the rules and regulations
promulgated thereunder.
Very truly yours,
/s/ Blackwell Sanders Peper Martin LLP
- 3 -
<PAGE>
EXHIBIT 5(b)
[Letterhead of Richards, Layton & Finger, P.A.]
September 10, 1999
UCU Capital Trust I
c/o UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Re: UCU CAPITAL TRUST I
Ladies and Gentlemen:
We have acted as special Delaware counsel for UtiliCorp United Inc., a
Delaware corporation (the "Company"), and UCU Capital Trust I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated August 30, 1999 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on August 30, 1999;
(b) The Declaration of Trust of the Trust, dated as of August 30, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A and B thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a prospectus (the "Prospectus") and
prospectus supplement (the "Prospectus Supplement"), relating, inter alia, to
the trust preferred securities
<PAGE>
UCU Capital Trust I
September 10, 1999
Page 2
of the Trust representing undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company and the Trust with the
Securities and Exchange Commission on or about September 10, 1999; and
(e) A Certificate of Good Standing for the Trust, dated September 10,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration and
the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Declaration and the Registration Statement, and (vii) that
the Preferred Securities are issued and sold to the Preferred Security Holders
in accordance with the Declaration and the Registration Statement.
<PAGE>
UCU Capital Trust I
September 10, 1999
Page 3
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus and the Prospectus Supplement. In giving the foregoing consents, we
do not thereby admit that we come within the category of Persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
BJK/MKS
<PAGE>
EXHIBIT 23(a)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of Form S-3, of our
report dated February 1, 1999, included in UtiliCorp's Annual Report on Form
10-K for the year ended December 31, 1998, and all references to our firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Kansas City, Missouri
September 10, 1999
<PAGE>
EXHIBIT 24(b)
POWER OF ATTORNEY
I, the undersigned Officer of UtiliCorp United Inc., do hereby name, constitute
and appoint Richard C. Green, Jr., or Dale J. Wolf, my agent and
attorney-in-fact, for myself and in my behalf as an Officer of UtiliCorp United
Inc., to sign and execute a Registration Statement on Form S-3, and any
amendments thereto, relating to the registration with the Securities and
Exchange Commission of Debt and/or Common Stock Securities of UtiliCorp United
Inc. or any wholly-owned subsidiary of UtiliCorp United Inc. to be issued in one
or more public offerings.
Executed this 8th day of September, 1999.
/s/ DWYANE L. HART
- -------------------------------
Dwayne L. Hart
<PAGE>
EXHIBIT 25(d)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
---------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------------
UTILICORP UNITED INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 44-0541877
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
20 WEST NINTH STREET
KANSAS CITY, MISSOURI 64105
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 25th day of August
25, 1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ SANDRA L. CARUBA
----------------
Sandra L. Caruba
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL
BANK OF CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM
S-3 OF U S WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
August 25, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between UtiliCorp United
Inc. and The First National Bank of Chicago, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal
or State authorities authorized to make such examinations, may be furnished
by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ SANDRA L. CARUBA
----------------
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
RCFD BIL MIL THOU ----
---- --------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) ................. 0081 3,809,517 1.a
b. Interest-bearing balances(2) .......................................... 0071 4,072,166 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) .......... 1773 12,885,728 2.b
3. Federal funds sold and securities purchased under agreements to resell ... 1350 4,684,756 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income RCFD
(from Schedule RC-C) .................................................. 2122 34,304,806 4.a
b. LESS: Allowance for loan and lease losses ............................. 3123 411,476 4.b
c. LESS: Allocated transfer risk reserve ................................. 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) ..................................... 2125 33,889,446 4.d
5. Trading assets (from Schedule RD-D) ...................................... 3545 5,100,499 5.
6. Premises and fixed assets (including capitalized leases) ................. 2145 754,052 6.
7. Other real estate owned (from Schedule RC-M) ............................. 2150 5,244 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ........................................... 2130 201,068 8.
9. Customers' liability to this bank on acceptances outstanding ............. 2155 265,041 9.
10. Intangible assets (from Schedule RC-M) ................................... 2143 285,709 10.
11. Other assets (from Schedule RC-F) ........................................ 2160 2,987,184 11.
12. Total assets (sum of items 1 through 11) ................................. 2170 68,940,410 12.
</TABLE>
- -------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ................................ 2200 22,163,664 13.a
(1) Noninterest-bearing(1) ................................. 6631 9,740,100 13.a1
(2) Interest-bearing ....................................... 6636 12,423,564 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) ......................... 2200 19,273,426 13.b
(1) Noninterest bearing .................................... 6631 334,741 13.b1
(2) Interest-bearing ....................................... 6636 18,938,685 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: ................................................ RCFD 2800 4,405,792 14
15. a. Demand notes issued to the U.S. Treasury ................... RCON 2840 173,505 15.a
b. Trading Liabilities(from Schedule RC-D) .................... RCFD 3548 4,824,567 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less ................. 2332 7,453,761 16.a
b. With original maturity of more than one year .............. A547 330,300 16.b
c. With original maturity of more than three years ............ A548 357,737 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ....... 2920 265,041 18.
19. Subordinated notes and debentures ............................. 3200 2,600,000 19.
20. Other liabilities (from Schedule RC-G) ........................ 2930 1,878,367 20.
21. Total liabilities (sum of items 13 through 20) ................ 2948 63,726,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ................. 3838 0 23.
24. Common stock .................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ...... 3839 3,239,836 25.
26. a. Undivided profits and capital reserves ..................... 3632 1,813,367 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ................................................. 8434 (37,357) 26.b
c. Accumulated net gains (losses) on cash flow hedges ....... 4336 0 26.c
27. Cumulative foreign currency translation adjustments ........... 3284 (2,454) 27.
28. Total equity capital (sum of items 23 through 27) ............. 3210 5,214,250 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ......................... 3300 68,940,410 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C>
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by
a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25(e)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--
--------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
UTILICORP UNITED INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 44-0541877
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
20 WEST NINTH STREET
KANSAS CITY, MISSOURI 64105
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE IN CONNECTION WITH PREFERRED SECURITIES OF UCU CAPITAL TRUST I
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 10th day of
September, 1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ Sandra L. Caruba
----------------------
Sandra L. Caruba
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 10, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated trust agreement
between UCU Capital Trust I and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ Sandra L. Caruba
-----------------------
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/99
ST-BK:17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
RCFD BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1)................... 0081 3,983,167 1.a
b. Interest-bearing balances(2)............................................ 0071 3,924,307 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 12,582,363 2.b
3. Federal funds sold and securities purchased under agreements to
resell..................................................................... 1350 7,578,668 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C)...................................................................... 2122 40,676,052 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 458,781 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 4,342 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c).................................... 2125 40,212,929 4.d
5. Trading assets (from Schedule RD-D)........................................ 3545 4,484,022 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 724,662 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 2,270 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................. 2130 207,442 8.
9. Customers' liability to this bank on acceptances outstanding 2155 300,112 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 232,947 10.
11. Other assets (from Schedule RC-F).......................................... 2160 2,513,151 11.
12. Total assets (sum of items 1 through 11)................................... 2170 76,746,040 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date:06/30/99
ST-BK:17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1)..................................... 2200 22,391,381 13.a
(1) Noninterest-bearing(1)...................................... 6631 10,239,312 13.a1
(2) Interest-bearing............................................ 6636 12,152,069 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II).............................. 2200 23,013,949 13.b
(1) Noninterest bearing......................................... 6631 361,838 13.b1
(2) Interest-bearing............................................ 6636 22,652,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 6,919,979 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 362,951 15.a
b. Trading Liabilities(from Schedule RC-D)......................... RCFD 3548 4,548,086 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less...................... 2332 9,453,587 16.a
b. With original maturity of more than one year................... A547 104,900 16.b
c. With original maturity of more than three years ............... A548 343,059 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............ 2920 300,112 18.
19. Subordinated notes and debentures.................................. 3200 2,750,000 19.
20. Other liabilities (from Schedule RC-G)............................. 2930 1,361,700 20.
21. Total liabilities (sum of items 13 through 20)..................... 2948 71,549,704 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................... 3838 0 23.
24. Common stock....................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)........... 3839 3,245,088 25.
26. a. Undivided profits and capital reserves.......................... 3632 1,872,884 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities...................................................... 8434 (121,259) 26.b
c. ACCUMULATED NET GAINS (LOSSES) ON CASH FLOW HEDGES.............. 4336 0 26.c
27. Cumulative foreign currency translation adjustments................ 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27).................. 3210 5,196,336 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).............................. 3300 76,746,040 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1996
....................RCFD 6724...N/A....Number M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4. = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
Exhibit 25 (f)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)__
_______________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
_______________
UCU CAPITAL TRUST I
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
20 WEST NINTH STREET
KANSAS CITY, MISSOURI 64105
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 10th day of
September, 1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ Sandra L. Caruba
-----------------------
Sandra L. Caruba
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 10, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated trust
agreement between UCU Capital Trust I and The First National Bank of Chicago,
the undersigned, in accordance with Section 321(b) of the Trust Indenture Act
of 1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY /s/ Sandra L. Caruba
--------------------
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
RCFD BIL MIL THOU
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,983,167 1.a
b. Interest-bearing balances(2)................................... 0071 3,924,307 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 12,582,363 2.b
3. Federal funds sold and securities purchased under agreements to
resell............................................................ 1350 7,578,668 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C).......................................................... 2122 40,676,052 4.a
b. LESS: Allowance for loan and lease losses...................... 3123 458,781 4.b
c. LESS: Allocated transfer risk reserve.......................... 3128 4,342 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c)........................... 2125 40,212,929 4.d
5. Trading assets (from Schedule RD-D)............................... 3545 4,484,022 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 724,662 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 2,270 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 207,442 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 300,112 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 232,947 10.
11. Other assets (from Schedule RC-F)................................. 2160 2,513,151 11.
12. Total assets (sum of items 1 through 11).......................... 2170 76,746,040 12.
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
-------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1).............................. 2200 22,391,381 13.a
(1) Noninterest-bearing(1)............................... 6631 10,239,312 13.a1
(2) Interest-bearing....................................... 6636 12,152,069 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II)....................... 2200 23,013,949 13.b
(1) Noninterest bearing.................................. 6631 361,838 13.b1
(2) Interest-bearing..................................... 6636 22,652,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 6,919,979 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 362,951 15.a
b. Trading Liabilities(from Schedule RC-D).................. RCFD 3548 4,548,086 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less............... 2332 9,453,587 16.a
b. With original maturity of more than one year............ A547 104,900 16.b
c. With original maturity of more than three years ........ A548 343,059 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 300,112 18.
19. Subordinated notes and debentures........................... 3200 2,750,000 19.
20. Other liabilities (from Schedule RC-G)...................... 2930 1,361,700 20.
21. Total liabilities (sum of items 13 through 20).............. 2948 71,549,704 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............... 3838 0 23.
24. Common stock................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 3,245,088 25.
26. a. Undivided profits and capital reserves.................. 3632 1,872,884 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.............................................. 8434 (121,259) 26.b
c. Accumulated net gains (losses) on cash flow hedges...... 4336 0 26.c
27. Cumulative foreign currency translation adjustments......... 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)........... 3210 5,196,336 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)....................... 3300 76,746,040 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1996
.........RCFD 6724...N/A....Number M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
</TABLE>
