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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 23, 1999
UtiliCorp United Inc. Delaware 44-0541877
UCU Capital Trust I Delaware Applied For
(Exact name of each (State or Other Jurisdiction (IRS Employer
registrant as specified of Incorporation) Identification Nos.)
in its charter)
1-3562 0-27413
(Commission File Number (Commission File Number
for UtiliCorp United Inc.) for UCU Capital Trust I)
20 West 9th, Kansas City, Missouri 64105
(Address of principal executive offices) (Zip Code)
(816) 421-6600
(Registrants' telephone number including area code)
Not Applicable
(Former name of former address, if changed since last report)
ITEM 5. OTHER EVENTS
UtiliCorp United Inc., a Delaware corporation ("UtiliCorp"), and UCU Capital
Trust I, a Delaware statutory business trust (the "Trust"), are hereby filing
the documents listed under Item
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7 below, which documents shall amend and supplement the applicable documents
filed as Exhibits to UtiliCorp's and the Trust's Registration Statement on
Form S-3, File Nos. 333-86299 and 333-86299-01, respectively.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibits
4(d)(3) - Form of Supplemental Indenture
4(h) - Form of Guarantee Agreement to be delivered by UtiliCorp United Inc.
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
4(o) - Certificate of Amendment of the Certificate of Trust of UCU Capital
Trust I
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrants have duly caused this report to be signed on their behalf by the
undersigned hereunto duly authorized.
UtiliCorp United Inc.
By: /s/ Dale J. Wolf
Name: Dale J. Wolf
Vice President, Finance, Treasurer and Corporate Secretary
UCU Capital Trust I
By: /s/ Dale J. Wolf
Name: Dale J. Wolf
Title: Regular Trustee
(Duly authorized representative)
Date: September 23, 1999
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UTILICORP UNITED INC.
And
BANK ONE TRUST COMPANY, NA
(formerly, The First National Bank of Chicago),
as Trustee
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___% Senior Deferrable Notes due 2004
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TWELFTH SUPPLEMENTAL INDENTURE
Dated as of September 29, 1999
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TWELFTH SUPPLEMENTAL INDENTURE, dated as of September 29,
1999, (herein called the "Twelfth Supplemental Indenture"), between UTILICORP
UNITED INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), party of the first
part, and Bank One Trust Company, NA (formerly known as The First National
Bank of Chicago), a national banking association duly organized and existing
under the laws of the United States, as Trustee under the Indenture referred
to below (hereinafter called the "Trustee"), party of the second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an Indenture, dated as of November 1, 1990 (hereinafter called
the "Indenture"), to provide for the issuance from time to time of certain of
its unsecured senior notes (hereinafter called the "Securities"), the form
and terms of which are to be established as set forth in Sections 201 and 301
of the Indenture; and
WHEREAS, Section 901 of the Indenture provides, among other
things, that the Company and the Trustee may enter into indentures
supplemental to the Indenture for, among other things, the purpose of
establishing the form or terms of the Securities of any series as permitted
in Sections 201 and 301 of the Indenture; and
WHEREAS, the Company desires to create a series of the
Securities in an aggregate principal amount of $[231,750,000] to be
designated the "_____ % Senior Deferrable Notes due 2004" (the "Senior
Notes"), and all action on the part of the Company necessary to authorize the
issuance of the Senior Notes under the Indenture and this Twelfth
Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Senior
Notes when executed by the Company and completed, authenticated and delivered
by the Trustee as in the Indenture and this Twelfth Supplemental Indenture
provided, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed; and
WHEREAS, Section 901 of the Indenture provides, among other
things, that the Company and the Trustee may enter into indentures
supplemental to the Indenture to, among other things, add to the covenants of
the Company for the benefit of the Holders of all or any series of
Securities; and
WHEREAS, UCU Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public up to [$225,000,000], in
aggregate liquidation amount of its
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____% Trust Preferred Securities (the "Preferred Securities") and, in
connection therewith, the Company has agreed to purchase up to $[6,750,000]
in value of the aggregate liquidation amount of the Trust's common securities
(the "Common Securities" and together with the Preferred Securities, the
"Trust Securities"), each representing an undivided beneficial interest in
the assets of the Trust, and proposes to invest the proceeds from such
offerings in up to [$231,750,000] aggregate principal amount of the Senior
Notes;
NOW, THEREFORE, THIS TWELFTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That in consideration of the premises, the Company
covenants and agrees with the Trustee, for the equal benefit of holders of
the Senior Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITION OF TERMS. Unless the context otherwise requires:
(a) a term not defined herein that is defined in the
Indenture has the same meaning when used in this Twelfth Supplemental
Indenture;
(b) a term defined anywhere in this Twelfth Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this Twelfth Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: (i) Applicable Margin; (ii) Applicable Principal
Amount; (iii) Common Securities; (iv) Delaware Trustee; (v) Failed
Remarketing; (vi) Guarantee; (vii) Preferred Securities; (viii)
Preferred Security Certificate; (ix) Property Trustee; (x) Redemption
Amount; (xi) Regular Trustees; (xii) Remarketing Agreement; (xiii)
Remarketing Date; (xiv) Reset Rate; (xv) Tax Event Redemption; (xvi)
Treasury Portfolio; and (xvii) Two-Year Benchmark Treasury Rate;
(g) the following terms have the meanings given to them
in the Purchase Contract Agreement: (i) Cash Settlement; (ii) PEPS
Units; (iii) Purchase Contract and (iv) Purchase Contract Settlement
Date;
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(h) the following terms have the meanings given to them
in this Section 1.1(h):
"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 principal office of the Trustee
or the Property Trustee is closed for business.
"Declaration" means the Amended and Restated
Declaration of Trust of the Trust, dated as of September ___,
1999, as amended and restated from time to time.
"Direct Action" has the meaning specified in Section
7.2.
"Primary Treasury Dealer" means a primary U.S.
government securities dealer in New York City.
"Purchase Contract Agreement" means the Purchase
Contract Agreement dated as of September 29, 1999 between the
Company and Bank One Trust Company, NA, as Purchase Contract
Agent.
"Quotation Agent" means (i) Morgan Stanley & Co.
Incorporated and its respective successors, provided that if
Morgan Stanley & Co. Incorporated ceases to be a Primary
Treasury Dealer, the Company will substitute another Primary
Treasury Dealer therefor, or (ii) any other Primary Treasury
Dealer selected by the Company.
"Remarketing" means (i) as long as the Trust has not
been liquidated, the operation of the procedures for
remarketing specified in Section 7.13 of the Declaration and
(ii) if the Trust has been liquidated, the operation of the
procedures for remarketing specified in Section 5.4 of the
Purchase contract Agreement.
"Remarketing Agent" shall mean Morgan Stanley & Co.
Incorporated or any successor remarketing agent selected by
the Company.
ARTICLE II
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 2.1. ISSUE OF SENIOR NOTES. A series of Securities
which shall be designated the "__% Senior Deferrable Notes due 2004" shall be
executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and covenants
of the Indenture and this Twelfth Supplemental Indenture (including the form
of Senior Note set forth as Exhibit A hereto). The aggregate principal amount
of Senior Notes of the series created hereby which may be authenticated and
delivered under the Indenture shall not, except as permitted by the
provisions of the Indenture, exceed $[231,750,000].
Section 2.2 MATURITY. The Maturity Date will be November
16, 2004. Unless a Tax Event Redemption occurs, the entire principal amount
of the Senior Note will mature and
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become due and payable together with any accrued and unpaid interest thereon,
on November 16, 2004.
Section 2.3 GLOBAL SENIOR NOTES. If distributed to holders
of Preferred Securities in connection with the involuntary or voluntary
liquidation and dissolution of the Trust:
(a) The Senior Notes in certificated form may be
presented to the Trustee by the Property Trustee in exchange for a
Global Security in the form of Exhibit A in an aggregate principal
amount equal to all Outstanding Senior Notes (a "Global Senior Note").
The Depositary for the Global Senior Notes will be The Depository Trust
Company. The Global Senior Note will be registered in the name of the
Depositary or its nominee, Cede & Co., and delivered by the Trustee to
the Depositary or a custodian appointed by the Depositary for crediting
to the accounts of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall execute
a Global Senior Note in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance with
the Indenture and this Twelfth Supplemental Indenture. Payments on the
Senior Notes issued as a Global Senior Note will be made to the
Depositary or its nominee.
(b) If any Preferred Securities are held in non
book-entry certificated form ("Non Book-Entry Preferred Securities") ,
the Senior Notes in certificated form may be presented to the Trustee
by the Property Trustee, and such Non Book-Entry Preferred Securities
will be deemed to represent beneficial interests in Senior Notes
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until the Preferred Security
Certificates representing such Non Book-Entry Preferred Securities are
presented to the Security Registrar for transfer or reissuance, at
which time such Preferred Security Certificates will be canceled and a
Senior Note registered in the name of the holder of the Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred
Security Certificate canceled will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with the Indenture and this Twelfth Supplemental Indenture. On issue of
such Senior Notes, Senior Notes with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee will
be deemed to have been canceled.
Section 2.4 INTEREST. (a) Each Senior Note will bear
interest at the rate of ___% per annum from September __, 1999 until the
Purchase Contract Settlement Date, and at the Reset Rate thereafter, payable
quarterly in arrears on February 16, May 16, August 16 and November 16 of
each year, commencing November 16, 1999 (the "Interest Payment Dates").
(b) The Regular Record Dates for the payment of
interest on the Senior Notes on any Interest Payment Date, shall be (i) as
long as the Senior Notes are represented by a Global Senior Note, the
Business Day preceding each Interest Payment Date or (ii) if the Senior Notes
are issued in certificated form, the fifteenth Business Day prior to each
Interest Payment Date.
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(c) The interest rate on the Senior Notes outstanding
on and after the Remarketing Date will be reset to the Reset Rate. The Reset
Rate will be equal to the rate per annum that results from the Remarketing,
provided that if a Failed Remarketing occurs, the Reset Rate will be equal to
(i) the Two-Year Benchmark Treasury Rate plus (ii) the Applicable Margin.
(d) The amount of interest payable on the Senior Notes
for any period will be 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, on the basis of a 30-day month and, for
any period less than a month, on the basis of the actual number of days
elapsed per 30-day month. In the event that any date on which interest is
payable on the Senior Notes is not a Business Day, then payment of the
interest payable on such date will be made on the next day that is a Business
Day (and without interest or other payment in respect of any such delay),
except that, if such Business Day is in the next calendar year, then such
payment will be made on the preceding Business Day.
Section 2.5 REDEMPTION. (a) If a Tax Event occurs and is
continuing, the Company may, at its option and upon not less than 30 nor more
than 60 days' notice to the Holders of the Senior Notes, redeem the Senior
Notes in whole (but not in part) within 90 days following the occurrence of
such Tax Event, at a price equal to, for each Senior Note, the Redemption
Price. The aggregate Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the date of redemption (the "Tax Event Redemption Date")
or such earlier time as the Company determines, provided that the Company
shall have deposited with the Trustee an amount sufficient to pay the
aggregate Redemption Price by 10:00 a.m. on the Tax Event Redemption Date.
Such redemption shall otherwise be in accordance with the provisions of
Article Eleven of the Indenture.
(b) Except as provided in Section 2.5(a), the Company
will have no right to redeem the Senior Notes.
(c) The Senior Notes will not be subject to a sinking
fund provision.
Section 2.6 EVENTS OF DEFAULT. So long as the Senior Notes
are held by the Trust, it shall be an Event of Default with respect to the
Senior Notes if the Trust shall have voluntarily or involuntarily dissolved,
wound up its business or otherwise terminated its existence except in
connection with (i) the distribution of the Senior Notes held by the Trust to
the holders of the Preferred Securities and Common Securities in liquidation
of their interests in the Trust, (ii) the redemption of all of the
outstanding Preferred Securities and Common Securities or (iii) a
consolidation, conversion, amalgamation, merger or other transaction
involving the Trust that is permitted under Section 3.15 of the Declaration.
Section 2.7 PAYING AGENT; SECURITY REGISTRAR. If the Senior
Notes are issued in certificated form, the Paying Agent and the Security
Registrar for the Senior Notes shall be the Corporate Trust Office.
Section 2.8 EXTENSION OF INTEREST PAYMENT PERIOD. The
Company shall have the right at any time, and from time to time, during the
term of the Senior Notes, to defer payments of interest by extending the
interest payment period of such Senior Notes for a period not extending, in
the aggregate, beyond the Maturity Date of the Senior Notes (the "Extension
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Period"), during which Extension Period no interest shall be due and payable.
To the extent permitted by applicable law, interest, the payment of which has
been deferred because of the extension of the interest payment period
pursuant to this Section 2.8, will bear interest thereon at the rate of ___%
until November 16, 2002, and at the Reset Rate thereafter compounded
quarterly for each quarter of the Extension Period ("Compounded Interest").
At the end of the Extension Period, the Company shall pay all interest
accrued and unpaid on the Senior Notes and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Senior Notes
in whose names the Senior Notes are registered in the Security Register on
the first Record Date after the end of the Extension Period. During any such
Extension Period or an Event of Default, however, the Company shall not (a)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities that rank junior to the Senior Notes
in the right of payment issued by the Company, or (b) make any guarantee
payments with respect to any guarantee by the Company of any securities of
any of its subsidiaries if such guarantee ranks junior to the Senior Notes in
right of payment or (c) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, except for or as a result of dividends or
distributions in, or options, warrants or rights to subscribe for or
purchase, the Company's common stock; any declaration of a dividend in
connection with the implementation of a shareholder's rights plan, or the
issuance of shares under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto; a reclassification of the
Company's capital stock solely into shares of one or more classes or series
of the Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for or into another class or series of
the Company's capital stock; the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged; and the purchase of the Company's common stock in connection with
the Company's normal course issuer bid-purchases for the satisfaction by the
Company of its obligations under any benefit plans for the Company and the
Company's subsidiaries' directors, officers or employees of the Company's
dividend reinvestment plans. Prior to the expiration of any Extension Period,
the Company may further extend such period, provided that such period
together with all such previous and further extensions thereof shall not
extend beyond the Maturity Date of the Senior Notes. Upon termination of any
Extension Period and the payment of all Deferred Interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof, but the Company, at its option, may prepay on any
Interest Payment Date all or any portion of the interest accrued during the
then elapsed portion of an Extension Period.
Section 2.9. NOTICE OF EXTENSION. The Company shall give
written notice to the Indenture Trustee of its election of any Extension
Period (or any further extension thereof) at least five Business Days before
the earlier of (i) the date the interest on the Senior Notes would have been
payable except for the election to begin or extend the Extension Period; (ii)
the date the Indenture Trustee is required to give notice to any securities
exchange or to Holders of Senior Notes of the Record Date or the Interest
Payment Date, and (iii) the Record Date.
Section 2.10. PLACE OF PAYMENT. The Place of Payment will
be initially the corporate trust offices of the Trustee which, at the date
hereof, are located at One Bank One Plaza, Suite 0126, Chicago, Illinois
60670, Attention: Corporate Trust Administration Department.
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Section 2.11. LIMITATION ON ISSUANCE OF MORTGAGE BONDS. The
Company will not issue any Mortgage Bonds under its General Mortgage
Indenture and Deed of Trust, dated September 15, 1988, between the Company
and Commerce Bank of Kansas City, N.A., as Trustee (the "General Mortgage"),
without making effective provision, and the Company covenants that in any
such case effective provisions will be made, whereby the Senior Notes shall
be directly secured by the General Mortgage equally and ratably with any and
all other obligations and indebtedness thereby secured.
ARTICLE III
FORM OF SENIOR NOTE
Section 3.1. FORM OF SENIOR NOTE. The Form of Senior Note
shall be substantially in the Form of Exhibit B attached hereto. The terms of
such Senior Note are herein incorporated by reference and are part of this
Twelfth Supplemental Indenture.
ARTICLE IV
EXPENSES
Section 4.1 PAYMENT OF EXPENSES. In connection with the
offering, sale and issuance of the Senior Notes to the Trust in connection
with the sale of the Preferred Securities and Common Securities by the Trust,
the Company will:
(a) pay for all costs and expenses relating to the
offering, sale and issuance of the Senior Notes, including compensation
of the Trustee under the Indenture in accordance with the provisions of
Section 607 of the Indenture; and
(b) pay for all costs and expenses of the Trust,
including, but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance of the Trust
Securities; the fees and expenses of the Property Trustee (including,
without limitation, those incurred in connection with the enforcement
by the Property Trustee of the rights of the holders of the Preferred
Securities), the Delaware Trustee and the Regular Trustees; the costs
and expenses relating to the operation of the Trust (including, without
limitation, costs and expenses of accountants, attorneys, statistical
or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses); and costs and expenses incurred in
connection with the acquisition, financing and disposition of Trust
assets;
(c) be primarily liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the
Trust.
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ARTICLE V
COVENANTS
Section 5.1 COVENANTS IN THE EVENT OF AN EVENT OF DEFAULT.
As long as the Senior Notes are held by the Trust, if an Event of Default
occurs and written notice of such event has been given to the Company, then
the Company may not:
(a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect
to, any of its capital stock; or
(b) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities that rank
on a parity with or junior in interest to the Senior Notes or make any
guarantee payments with respect to any guarantee by the Company of the
debt securities of any subsidiary of the Company if such guarantee
ranks on a parity with or junior in interest to the Senior Notes; other
than (i) purchases or acquisitions of capital stock of the Company in
connection with the satisfaction by the Company of its obligations
under any employee benefit plans or the satisfaction by the Company of
its obligations pursuant to any contract or security outstanding on the
date of such Event of Default requiring the Company to purchase capital
stock of the Company, (ii) as a result of a reclassification of the
Company's capital stock for another class or series of the Company's
capital stock, (iii) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the
Company, (v) redemptions or repurchases of any rights pursuant to a
rights agreement and (vi) payments under the Guarantee.
Section 5.2 ADDITIONAL COVENANTS RELATING TO THE TRUST. For
as long as the Preferred Securities remain outstanding, the Company will:
(a) maintain, directly or indirectly, 100% ownership of
the Common Securities;
(b) cause the Trust to remain a statutory business trust
and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by the Declaration;
(c) 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 of 1940;
(d) not 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; and
(e) pay all of the debts and obligations of the Trust
(other than with respect to the securities issued by the Trust) and all
costs and expenses of the Trust (including, but not limited to, all
costs and expenses relating to the organization of the Trust, the fees
and expenses of the trustees and all costs and expenses relating to the
operation of the Trust)
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and any and all taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed on the Trust
by the United States, or any other taxing authority, so that the net
amounts received and retained by the Trust after paying such expenses
will be equal to the amounts the Trust would have received had no such
costs or expenses been incurred by or imposed on the Trust.
ARTICLE VI
ORIGINAL ISSUE OF SENIOR NOTES
Section 6.1 ORIGINAL ISSUE OF SENIOR NOTES. Senior Notes in
an aggregate principal amount of up to $[231,675,000] may, upon execution of
this Twelfth Supplemental Indenture, be executed by the Company and delivered
to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Senior Notes upon receipt of a Company Order,
without any further action by the Company.
ARTICLE VII
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
Section 7.1 PREFERRED SECURITY HOLDERS' RIGHTS.
Notwithstanding Section 507 of the Indenture, if the Property Trustee fails
to enforce its rights under the Senior Notes after a holder of Preferred
Securities has made a written request, the holder of Preferred Securities
may, to the fullest extent permitted by law, institute a legal proceeding
directly against the Company to enforce the Property Trustee's rights under
the Indenture without first instituting any legal proceeding against the
Property Trustee or any other Person.
Section 7.2 DIRECT ACTION. Notwithstanding any other
provision of the Indenture, for as long as any Preferred Securities remain
outstanding, to the fullest extent permitted by law, if an Event of Default
has occurred and is continuing and such event is attributable to the failure
of the Company to pay interest or principal on the Senior Notes on the date
such interest or principal is otherwise payable (or in the case of
redemption, the redemption date), then a holder of Preferred Securities may
institute a proceeding directly against the Company (a "Direct Action") to
enforce payment to such holder of the principal or interest on Senior Notes
having an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder.
Section 7.3 PAYMENTS PURSUANT TO DIRECT ACTIONS. The Company
will have the right to set off against its obligations to the Trust, as
Holder of the Senior Notes, any payment made to a holder of Preferred
Securities in connection with a Direct Action.
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ARTICLE VIII
REMARKETING
Section 8.1 EFFECTIVENESS OF THIS ARTICLE. Upon a
distribution of the Senior Notes upon the liquidation and dissolution of the
Trust which occurs prior to the Remarketing of the Preferred Securities
pursuant to the Declaration, the Senior Notes shall be Remarketed in
accordance with the Remarketing Procedures where all references in the
Remarketing Procedures to Preferred Securities shall be read as references to
the Senior Notes, unless the context requires otherwise. Until such a
distribution, or if such distribution occurs after the Remarketing of the
Preferred Securities pursuant to the Declaration, this Article VIII will have
no effect.
ARTICLE IX
MISCELLANEOUS
Section 9.1. EXECUTION OF SUPPLEMENTAL INDENTURE. This
Twelfth Supplemental Indenture is executed and shall be construed as an
indenture supplemental to the Indenture and, as provided in the Indenture,
this Twelfth Supplemental Indenture forms a part thereof.
Section 9.2. CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Twelfth Supplemental Indenture by
any of the provisions of the Trust Indenture Act, such required provision
shall control.
Section 9.3. EFFECT OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
Section 9.4. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Twelfth Supplemental Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 9.5. SEPARABILITY CLAUSE. In case any provision in
this Twelfth Supplemental Indenture or in the Senior Notes 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 9.6. BENEFITS OF TWELFTH SUPPLEMENTAL INDENTURE.
Nothing in this Twelfth Supplemental Indenture or in the Senior Notes,
express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the holders, any benefit or any legal or
equitable right, remedy or claim under this Twelfth Supplemental Indenture.
Section 9.7. GOVERNING LAW. This Twelfth Supplemental
Indenture and each Senior Note shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be governed by
and construed in accordance with the laws of said State.
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Section 9.8. EXECUTION AND COUNTERPARTS. This Twelfth
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Twelfth Supplemental 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.
[Seal] By:
----------------------------------
Name: Dale J. Wolf
Title: Vice President,
Finance
Attest:
- ------------------------------
Title: Asst. Treasurer
BANK ONE TRUST COMPANY, NA
as Trustee
[Seal] By:
---------------------------------
Name:
Title:
Attest:
- ------------------------------
Title: Trust Officer
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STATE OF )
--------------
) ss.:
COUNTY OF )
-------------
On the ____ day of ________, 199_, before me personally
came _____________________, to me known, who, being by me duly sworn, did
depose and say that he is _________________________ of UtiliCorp United Inc.,
the corporation described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
-------------------------------
Notary Public,
State of
---------------
STATE OF )
--------------
) ss.:
COUNTY OF )
-------------
On the ____ day of ________, 199_, before me personally
came ________________, to me known, who, being by me duly sworn, did depose
and say that he is ________________ of Bank One Trust Company, NA, the
national banking association described in and which executed the foregoing
instrument; that he knows the seal of said association; that the seal affixed
to said instrument is such association seal; that it was so affixed by
authority of the Board of Directors of said association, and that he signed
his name thereto by like authority.
-------------------------------
Notary Public,
State of
---------------
<PAGE>
EXHIBIT A
[FORM OF FACE OF SENIOR NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND 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 NOMINEE TO A SUCCESSOR
OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED
UTILICORP UNITED INC.
_____% SENIOR NOTE DUE 2004
No.
-------------------
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises ________________, or registered assigns, the
principal sum of _______ Dollars on November 16, 2004, and to pay interest on
said principal sum from September 29, 1999, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year (an
"Interest Payment Date") commencing November 16, 1999, at the rate of _____%
per annum until November 16, 2002, and at the Reset Rate thereafter, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable for any period will be computed (1)
for any full quarterly period on the basis of a 360-day year of twelve 30-day
months and (2) for any period shorter than a full quarterly period, on the
basis of a 30-day month and, for any period less than a month, on the basis
of the actual number of days elapsed per 30-day month. In the event that any
date on which interest is payable is not a Business Day, then payment of the
interest payable on such date will be made on the next day that is a Business
Day (and without any interest or other payment in respect of such delay),
except that, if such Business Day is in the next calendar year, then such
payment will be made on the preceding Business Day. The interest installment
so payable, and punctually paid or duly
<PAGE>
provided for, on any Interest Payment Date will, as provided in the
Indenture, referred to on the reverse side hereof, be paid to the person in
whose name this Security (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the Regular
Record Date for such interest installment, which, if this Security is a
Global Security, shall be the close of business on the Business Day preceding
such Interest Payment Date or, if this Security is not a Global Security,
shall be the close of business on the 15th Business Day preceding such
Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Holder in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee
referred to on the reverse side hereof for the payment of such defaulted
interest, notice whereof shall be given to the Holders of the Security not
less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Security may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of the Trustee
maintained for that purpose in such coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the holder hereof to the
Register, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with
the terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been
executed by the Trustee or an Authenticating Agent, by manual signature of
one of its Authorized Officers, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose. The
provisions of this Security are continued on the reverse side hereof, and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
UTILICORP UNITED INC.
By:
---------------------------
Attest:
By:
--------------------------
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: BANK ONE TRUST COMPANY, NA, as
------------------------ Trustee
By:
---------------------------
Authorized Officer
3
<PAGE>
(FORM OF REVERSE OF SENIOR NOTE)
UTILICORP UNITED INC.
____% SENIOR NOTE DUE 2004
This Senior Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $[231,750,000].
All terms used in this Senior Note that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may
this Security be redeemed at the option of the Company prior to the Maturity
Date.
Interest payments for this Security will be computed and
paid on the basis of a 360-day year of twelve 30-day months. If an Interest
Payment Date falls on a day that is not a Business Day, such Interest Payment
Date will be the following day that is a Business Day.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
If a Tax Event occurs and is continuing, the Company may,
at its option and upon not less than 30 nor more than 60 days' notice to the
Holders of the Senior Notes, redeem the Senior Notes in whole (but not in
part) within 90 days following the occurrence of such Tax Event at the
Redemption Price. The Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer
in immediately available funds at such place and to such account as may be
designated by each such Holder.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than 66 2/3% in
principal amount of the Securities at the time Outstanding of all series to
be affected (voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in
<PAGE>
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities
registered in the names of Persons other than the Depositary with respect to
such series or its nominee only as provided in this paragraph. This Security
shall be so exchangeable if (x) the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such series or at any
time ceases to be a clearing agency registered as such under the Securities
Exchange Act of 1934, (y) the Company executes and delivers to the Trustee an
Officers' Certificate providing that this Security shall be so exchangeable
or (z) there shall have occurred and be continuing an Event of Default with
respect to the Securities of such series. Securities so issued in exchange
for this Security shall be of the same series, having the same interest rate,
if any, and maturity and having the same terms as this Security, in
authorized denominations and in the aggregate having the same principal
amount as this Security and registered in such names as the Depositary for
such Global Security shall direct.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the series of
which this Security is a part is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and premium, if
any, and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a
part are issuable only in registered form without coupons in denominations of
$25 and in integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be
2
<PAGE>
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
3
<PAGE>
EXHIBIT B
[FORM OF FACE OF SENIOR NOTE]
REGISTERED REGISTERED
UTILICORP UNITED INC.
_____% SENIOR NOTE DUE 2004
No.
------------------
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises ________________, or registered assigns, the
principal sum of _______ Dollars on November 16, 2004, and to pay interest on
said principal sum from September 29, 1999, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year (an
"Interest Payment Date") commencing November 16, 1999, at the rate of _____%
per annum until November 16, 2002, and at the Reset Rate thereafter, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable for any period will be computed (1)
for any full quarterly period on the basis of a 360-day year of twelve 30-day
months and (2) for any period shorter than a full quarterly period, on the
basis of a 30-day month and, for any period less than a month, on the basis
of the actual number of days elapsed per 30-day month. In the event that any
date on which interest is payable is not a Business Day, then payment of the
interest payable on such date will be made on the next day that is a Business
Day (and without any interest or other payment in respect of such delay),
except that, if such Business Day is in the next calendar year, then such
payment will be made on the preceding Business Day. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, referred to on the reverse side
hereof, be paid to the person in whose name this Security (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the Regular Record Date for such interest installment,
which, if this Security is a Global Security, shall be the close of business
on the Business Day preceding such Interest Payment Date or, if this Security
is not a Global Security, shall be the close of business on the 15th Business
Day preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holder on such Regular Record Date, and may be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by
the Trustee referred to on the reverse side hereof for the payment of such
defaulted interest, notice whereof shall be given to the Holders of the
Security not less than 10 days prior to such Special
4
<PAGE>
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of the Trustee
maintained for that purpose in such coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the holder hereof to the
Register, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with
the terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been
executed by the Trustee or an Authenticating Agent, by manual signature of
one of its Authorized Officers, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose. The
provisions of this Security are continued on the reverse side hereof, and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
UTILICORP UNITED INC.
By:
---------------------------
Attest:
By:
--------------------------
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: BANK ONE TRUST COMPANY, NA, as
----------------------- Trustee
By:
--------------------------
Authorized Officer
6
<PAGE>
(FORM OF REVERSE OF SENIOR NOTE)
UTILICORP UNITED INC.
____% SENIOR NOTE DUE 2004
This Senior Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $[231,750,000].
All terms used in this Senior Note that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may
this Security be redeemed at the option of the Company prior to the Maturity
Date.
Interest payments for this Security will be computed and
paid on the basis of a 360-day year of twelve 30-day months. If an Interest
Payment Date falls on a day that is not a Business Day, such Interest Payment
Date will be the following day that is a Business Day.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
If a Tax Event occurs and is continuing, the Company may,
at its option and upon not less than 30 nor more than 60 days' notice to the
Holders of the Senior Notes, redeem the Senior Notes in whole (but not in
part) within 90 days following the occurrence of such Tax Event at the
Redemption Price. The Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer
in immediately available funds at such place and to such account as may be
designated by each such Holder.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than 66 2/3% in
principal amount of the Securities at the time Outstanding of all series to
be affected (voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in
<PAGE>
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the series of
which this Security is a part is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and premium, if
any, and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a
part are issuable only in registered form without coupons in denominations of
$25 and in integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE>
Exhibit 4(h)
---------------------------------------
---------------------------------------
FORM OF
GUARANTEE AGREEMENT
UCU CAPITAL TRUST I
Dated as of September __, 1999
---------------------------------------
---------------------------------------
<PAGE>
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of September___,
1999, is executed and delivered by UTILICORP UNITED INC., a Delaware corporation
(the "Guarantor"), and BANK ONE TRUST COMPANY, NA, 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 September __, 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 [9,000,000] of its preferred securities, stated
liquidation amount $25 per security, having an aggregate liquidation amount of
$[225,000,000] (the "Preferred Securities") and common securities with an
aggregate liquidation amount of $[6,750,000] (the "Common Securities" and
together with the Preferred Securities, the "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 "Holders", as defined in the Declaration), 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
<PAGE>
-2-
(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.
(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.
"Common Security" shall have the meaning given such term in the
Declaration.
"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
One Bank One Plaza, Suite IL1-0126, Chicago, Illinois 60670,
Attention: Corporate Trust Administration Department.
"Covered Person" shall mean any Holder or beneficial owner of
Securities.
"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
Senior Notes by the Senior Notes Issuer upon the occurrence of a Tax Event
Redemption or upon repayment of the Senior Notes 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 Senior Notes to
the Holders in exchange for the Securities), the lesser of (a) the aggregate of
the stated liquidation amount and all accumulated and unpaid Distributions on
the Securities to the date of payment, to the extent the
<PAGE>
-3-
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 Bank One Trust Company, NA, until a
Successor Guarantee Trustee 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 November 1, 1990,
between the Guarantor and Bank One Trust Company, NA, as trustee (formerly The
First National Bank of Chicago), as amended and supplemented (including
provisions of the Trust Indenture Act that are deemed incorporated therein),
pursuant to which the Senior Notes 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.
"Preferred Securities" shall have the meaning given such term in the
Declaration.
"Property Trustee" shall mean Bank One Trust Company, NA, 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 secretary, 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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"Senior Notes" shall mean the series of Senior Notes to be issued by
the Senior Notes Issuer under the Indenture and to be purchased by the Issuer
and held by the Property Trustee.
"Senior Notes Issuer" shall mean UtiliCorp United Inc., in its capacity
as issuer of the Senior Notes under the Indenture.
"Successor Guarantee Trustee" shall mean a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Supplemental Indenture" shall mean the Twelfth Supplemental Indenture,
dated as of September ___, 1999 between the Senior Note Issuer and Bank One
Trust Company NA.
"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.
(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.
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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 the Guarantee Trustee.
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.
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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.
(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) Subject to Section 2.6, 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
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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 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 written advice or opinion of such counsel and experts with
respect to legal matters or advice
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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 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 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,
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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.
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 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
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
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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 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:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the 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; provided, however, that if the Senior Notes
Issuer has exercised its right under Section 2.8 of the Supplemental Indenture
to defer the interest payments on the Senior Notes, the Guarantor shall have no
obligation hereunder until the expiration of the Applicable Extension Period (as
defined in the Supplemental Indenture);
(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.
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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 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 Senior Notes
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 Senior Notes (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 first day of such Event of Default
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 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
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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
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 Senior Notes), (ii) distribution of the
Senior Notes 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 written 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 written 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.
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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.
(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):
<PAGE>
-15-
Bank One Trust Company, NA, One Bank One Plaza, Suite IL1-0126,
Chicago, Illinois 60670, Attention: Corporate Trust Administration Department,
Telecopy No.: (312) 407-1708
(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. 20 W. Ninth Street, Kansas City, MO 64105,
Attention: Dale J. Wolf, Telecopy No.: (816) 467-3591.
(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>
-16-
THIS GUARANTEE is executed as of the day and year first above written.
UTILICORP UNITED INC.,
as Guarantor
By:
-------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA,
not in its individual capacity but solely
as Guarantee Trustee
By:
-------------------------------
Name:
Title:
<PAGE>
FORM OF
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...............................14
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......................................................15
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...........................22
SECTION 3.11 DELAWARE TRUSTEE.............................................24
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.......................................................27
SECTION 4.1 RESPONSIBILITIES OF THE SPONSOR...............................27
<PAGE>
SECTION 4.2 INDEMNIFICATION AND EXPENSES OF THE TRUSTEES..................28
ARTICLE 5: THE HOLDERS OF THE COMMON SECURITIES..............................28
SECTION 5.1 SENIOR DEFERRABLE NOTES ISSUER'S PURCHASE OF
THE COMMON SECURITIES........................................28
SECTION 5.2 COVENANTS OF THE SENIOR DEFERRABLE NOTES ISSUER...............29
ARTICLE 6: THE TRUSTEES......................................................29
SECTION 6.1 NUMBER OF TRUSTEES............................................29
SECTION 6.2 DELAWARE TRUSTEE; ELIGIBILITY.................................29
SECTION 6.3 PROPERTY TRUSTEE; ELIGIBILITY.................................30
SECTION 6.4 QUALIFICATIONS OF THE REGULAR TRUSTEES GENERALLY..............30
SECTION 6.5 INITIAL REGULAR TRUSTEES......................................30
SECTION 6.6 APPOINTMENT, REMOVAL AND RESIGNATION OF THE TRUSTEES..........31
SECTION 6.7 VACANCIES AMONG TRUSTEES......................................32
SECTION 6.8 EFFECT OF VACANCIES...........................................32
SECTION 6.9 MEETINGS......................................................32
SECTION 6.10 DELEGATION OF POWER BY THE REGULAR TRUSTEES..................33
SECTION 6.11 MERGER, CONSOLIDATION, CONVERSION OR
SUCCESSION TO BUSINESS......................................33
ARTICLE 7: TERMS OF THE SECURITIES...........................................33
SECTION 7.1 GENERAL PROVISIONS REGARDING THE SECURITIES...................33
SECTION 7.2 DISTRIBUTIONS.................................................36
SECTION 7.3 REDEMPTION OF SECURITIES......................................37
SECTION 7.4 REDEMPTION PROCEDURES.........................................38
SECTION 7.5 VOTING RIGHTS OF THE PREFERRED SECURITIES.....................39
SECTION 7.6 VOTING RIGHTS OF THE COMMON SECURITIES........................41
SECTION 7.7 PAYING AGENT..................................................42
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...............................................44
SECTION 7.12 GLOBAL SECURITIES............................................44
SECTION 7.13 REMARKETING..................................................47
ARTICLE 8: DISSOLUTION AND TERMINATION OF THE TRUST...........................49
ii
<PAGE>
SECTION 8.1 DISSOLUTION AND TERMINATION OF THE TRUST......................49
SECTION 8.2 LIQUIDATION DISTRIBUTION UPON DISSOLUTION OF THE TRUST........50
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...................................................51
SECTION 9.3 FIDUCIARY DUTY.................................................52
SECTION 9.4 INDEMNIFICATION...............................................52
SECTION 9.5 OUTSIDE BUSINESSES............................................55
ARTICLE 10: ACCOUNTING.......................................................55
SECTION 10.1 FISCAL YEAR..................................................55
SECTION 10.2 CERTAIN ACCOUNTING MATTERS...................................56
SECTION 10.3 BANKING......................................................56
SECTION 10.4 WITHHOLDING..................................................56
ARTICLE 11: AMENDMENTS AND MEETINGS..........................................57
SECTION 11.1 AMENDMENTS...................................................57
SECTION 11.2 MEETINGS OF THE HOLDERS OF THE SECURITIES; ACTION
BY WRITTEN CONSENT..........................................59
ARTICLE 12: REPRESENTATIONS OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE............................................60
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE........60
SECTION 12.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE TRUSTEE.......61
ARTICLE 13: MISCELLANEOUS....................................................61
SECTION 13.1 NOTICES......................................................61
SECTION 13.2 GOVERNING LAW................................................62
SECTION 13.3 INTENTION OF THE PARTIES.....................................63
SECTION 13.4 HEADINGS.....................................................63
SECTION 13.5 SUCCESSORS AND ASSIGNS.......................................63
SECTION 13.6 PARTIAL ENFORCEABILITY.......................................63
SECTION 13.7 COUNTERPARTS.................................................63
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, Bank One Trust Company, NA, as the initial
Property Trustee, and Bank One Delaware, Inc., 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 Senior Deferrable Notes
issued by the Senior Deferrable Notes 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;
1
<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 Senior
Deferrable Notes 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 Senior Deferrable Notes 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 Agent (after consultation
with the Company);
(ii) if not under clause (i) above, then A/"a" if the senior notes of
the Senior Deferrable Notes 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 Agent (after consultation with the Company);
(iii) if not under clauses (i) or (ii) above, then BBB/"Baa" if the
senior notes of the Senior Deferrable Notes 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 Agent (after consultation with the
Company); or
2
<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 November 16, 2002 and (B) for
each scheduled interest payment date on the Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes 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.
3
<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 Chase Manhattan Trust Company,
National Association.
"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, Senior Deferrable Notes Issuer, and the parent of the Trust.
"Compounded Distributions" shall have the meaning specified in Section
7.2(b).
"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 One First
National Plaza, Suite 0126, Chicago, Illinois 60670, Attn: Corporate Trust
Services Division.
"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.
"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.
4
<PAGE>
"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, as may be amended from time to time, 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 Senior Deferrable Notes Issuer
Indemnified Person or a Fiduciary Indemnified Person.
"Indenture" shall mean the indenture dated as of November 1, 1990, as
supplemented by a twelfth supplemental indenture relating to the Senior
Deferrable Notes, dated as of September _____, 1999, between the Senior
Deferrable Notes Issuer and the Indenture Trustee (including the provisions of
the Trust Indenture Act that are deemed incorporated therein), pursuant to which
the Senior Deferrable Notes are to be issued.
"Indenture Event of Default" shall have the meaning given to the term
"Event of Default" in the Indenture.
5
<PAGE>
"Indenture Trustee" shall mean Bank One Trust Company, NA (formerly The
First National Bank of Chicago), 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;
(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.
6
<PAGE>
"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 Senior Deferrable
Notes Issuer will pay such holder contract adjustment payments and (B)
beneficial ownership of a Preferred Security or Senior Deferrable Note, 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, Chase
Manhattan Trust Company National Association, 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 Bank One Trust Company, NA.
"Purchase Contract Agreement" shall mean the Purchase Contract
Agreement dated as of September __, 1999 between the Company and Bank One Trust
Company, NA, as Purchase Contract Agent.
"Purchase Contract Settlement Date" shall mean November 16, 2002.
7
<PAGE>
"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) Morgan Stanley & Co. Incorporated and
any respective successor, provided that if Morgan Stanley & Co. Incorporated 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 Senior Deferrable Notes Issuer to repay or redeem, in whole or in part,
the Senior Deferrable Notes 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
Senior Deferrable Notes 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 Senior Deferrable Notes.
"Remarketing Agent" shall mean Morgan Stanley & Co. Incorporated or if
the Remarketing Agent is removed, any successor remarketing agent selected by
the Sponsor.
"Remarketing Agreement" shall mean the Remarketing Agreement dated as
of September __, 1999 among the Company, the Trust and the Remarketing Agent.
"Remarketing Date" shall mean the third Business Day preceding November
16, 2002.
"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 Agent, that results from the Remarketing pursuant to Section
7.13.
8
<PAGE>
"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.
"Security Registrar" shall have the meaning specified in Section
7.9(b).
"Senior Deferrable Notes" shall mean the series of senior deferrable
notes to be issued by the Senior Deferrable Notes Issuer under the Indenture and
to be purchased by the Trust and held by the Property Trustee.
"Senior Deferrable Notes Issuer" shall mean UtiliCorp United Inc., a
Delaware corporation, in its capacity as issuer of the Senior Deferrable Notes
under the Indenture.
"Senior Deferrable Notes Issuer Indemnified Person" shall mean (A) any
Regular Trustee, (B) any Affiliate of any Regular Trustee, (C) any officers,
directors, shareholders, members, 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.
"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).
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"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).
"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 Senior Deferrable Notes, (ii) interest
payable by the Senior Deferrable Notes Issuer on the Senior Deferrable Notes is
not, or within 90 days of the date of such opinion will not be, deductible by
the Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes, a portfolio of zero-coupon U.S.
treasury securities consisting of (i)
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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 Senior Deferrable Notes 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 Senior Deferrable Notes 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 912833 FR6) with a principal amount at maturity equal to $1,000
and maturing on November 15, 2002, the business day preceding the Purchase
Contract Settlement Date.
"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
Senior Deferrable Notes.
"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 Senior Deferrable Notes, as agreed upon by the Company and the
Remarketing Agent 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 Remarketing Agent (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 Remarketing Agent (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 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
immediately
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preceding the Purchase Contract Settlement Date of three leading United States
government securities dealers selected by the Remarketing Agent (after
consultation with the Company) (which may include the 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 May 15 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 Senior Deferrable Notes (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 Senior Deferrable Notes, 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
Senior Deferrable Notes 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 Senior Deferrable
Notes 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 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 Senior Deferrable Notes with the proceeds of the
sale of the Securities; provided that the Regular Trustees shall cause legal
title to the Senior Deferrable Notes 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 Senior Deferrable Notes Issuer to
ensure that the Senior Deferrable Notes will be treated as indebtedness
of the Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes, 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);
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(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Declaration, (A) direct
the time, method and place of exercising any trust or power conferred
upon the Indenture Trustee with respect to the Senior Deferrable Notes,
(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 Senior Deferrable Notes shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture
or the Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Senior Deferrable Notes 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 Senior Deferrable Notes, 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;
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(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Securities to
the extent the Senior Deferrable Notes are redeemed or mature; and
(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 Senior Deferrable
Notes 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 Senior Deferrable Notes
Issuer to pay interest or principal on the Senior Deferrable Notes 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 Senior Deferrable Notes Issuer to enforce
payment to such Holder of the principal or interest on Senior Deferrable Notes
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 Senior Deferrable Notes 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 Senior Deferrable Notes 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.
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(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 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;
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(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 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 Senior
Deferrable Notes 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 Senior Deferrable Notes 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
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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 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,
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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 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, trustees 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(a) 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.
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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.
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 Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes;
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(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 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
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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 Senior Deferrable Notes.
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:
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(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;
(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 Senior Deferrable Notes Issuer,
agrees to indemnify the Regular Trustees, 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 Regular Trustees, 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 Regular Trustees, the Delaware Trustee or the
Property Trustee and the termination of this Declaration.
ARTICLE 5: THE HOLDERS OF THE COMMON SECURITIES
SECTION 5.1 Senior Deferrable Notes Issuer's Purchase of the Common
Securities.
On the Closing Date, the Senior Deferrable Notes 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-
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allotment Option, then the Senior Deferrable Notes 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 Senior Deferrable Notes
Issuer, upon such purchase, will equal at least three percent of the total
capital of the Trust.
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 Senior Deferrable Notes Issuer.
For so long as the Preferred Securities remain outstanding,
the Senior Deferrable Notes 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 without
prior notice 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
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(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.
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.
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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:
(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 without prior notice in lieu of
such meeting.
(b) The Property Trustee shall not be removed in accordance with
Section 6.6(a) or Section 7.5(k) 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) or Section 7.5(k) 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
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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 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
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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 and without prior notice 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.
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 $25 per
Preferred Security. The Preferred Securities are hereby designated for
identification purposes only as the Preferred Securities. The Preferred
Security Certificates shall be substantially in the form of Exhibit A
hereto, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice.
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(ii) Common Securities. The Common Securities of the
Trust shall have an aggregate liquidation amount with respect
to the assets of the Trust of __________________
($______________) (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 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 Senior Deferrable Notes.
(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 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
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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.
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, as determined by the Regular Trustees on behalf of 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) 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;
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(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 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 February 16, May 16,
August 16 and November 16 of each year, commencing November 16, 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 Senior Deferrable Notes 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.
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(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 Settlement 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 Senior Deferrable Notes Issuer makes
a payment of principal of and any premium or interest on the Senior Deferrable
Notes 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).
(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 Senior Deferrable Notes. 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 Senior Deferrable Notes.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Senior Deferrable Notes Issuer
having failed to make a payment under the Senior Deferrable Notes, 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 Senior
Deferrable Notes held by the Trust, whether at the stated maturity of the Senior
Deferrable Notes 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 Senior
Deferrable Notes 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.
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(b) If the Senior Deferrable Notes Issuer redeems the Senior
Deferrable Notes 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 Senior Deferrable Notes Issuer exercises its
option to redeem the Senior Deferrable Notes, the Senior Deferrable Notes
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 Chase Manhattan Trust
Company, NA, 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 Bank One
Trust Company, NA, acting as the purchase contract agent under the Purchase
Contract Agreement, for 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 Senior
Deferrable Notes 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 Senior
Deferrable Notes. 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 Senior Deferrable Notes Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Senior Deferrable Notes) (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
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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 withheld 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 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 Senior
Deferrable Notes 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 Senior Deferrable Notes, to (i) exercise the
remedies available to it under the Indenture, (ii) consent to any
amendment or modification of the Indenture or the Senior Deferrable
Notes where such consent is required or (iii) waive any past default
and its consequences that are waivable under
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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 Senior
Deferrable Notes 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 Senior Deferrable Notes 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.
(c) If the Property Trustee fails to enforce its rights under
the Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior
Deferrable Notes 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 Senior
Deferrable Notes Issuer on or after the respective due date specified
in the Senior Deferrable Notes.
(d) The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of any Indenture Event of Default
received from the Senior Deferrable Notes Issuer with respect to the
Senior Deferrable Notes. 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 Senior Deferrable Notes.
(e) If the consent of the Property Trustee, as the Holder of
the Senior Deferrable Notes, 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 more than a majority of the aggregate
principal amount of the Senior Deferrable Notes, 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
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 Senior Deferrable Notes.
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(f) A waiver of an Indenture Event of Default with respect to
the Senior Deferrable Notes 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
without prior notice. 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.
(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 Senior Deferrable Notes 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 Senior Deferrable Notes Issuer the Trustees
or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Senior Deferrable Notes 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, subject to Section 6.6, may be appointed, removed or
replaced 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 replace, subject to Section 6.6(b), 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 Events 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
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this Declaration, including the right to direct the Property Trustee,
as Holder of the Senior Deferrable Notes, to (i) exercise the remedies
available to it under the Indenture, (ii) consent to any amendment or
modification of the Indenture or the Senior Deferrable Notes where such
consent is required or (iii) waive any past default and its
consequences that are waivable under the Indenture; provided 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 Senior Deferrable Notes affected thereby, only the Holders of
at least the same proportion 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 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 Senior Deferrable Notes.
(d) If the Property Trustee fails to enforce its rights under
the Senior Deferrable Notes 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 Senior Deferrable Notes Issuer to enforce the
Property Trustee's rights under the Senior Deferrable Notes 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 Senior Deferrable Notes 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 without
prior notice. 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 Senior Deferrable Notes 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 Senior Deferrable Notes Issuer) and may appoint one
or more additional paying
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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 Regular Trustees, on behalf of the
Trust, fail 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 Senior Deferrable Notes 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.
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. 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.
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(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:
(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
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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 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
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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.
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.
A Regular Trustee on behalf of 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.
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SECTION 7.13 Remarketing.
(a) The Senior Deferrable Notes 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 November 16, 2002, 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 November 16, 2002, shall be deemed to have consented to the
disposition of the Preferred 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 the fifth Business Day prior to November 16,
2002. 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 Agent 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 Agent 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 Agent conducts
a Remarketing pursuant to the terms of the Remarketing Agreement, (ii) the
Remarketing Agent is able to find a purchaser or purchasers for the tendered
Preferred Securities and (iii) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent.
(e) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price at least equal to
100.25% of the aggregate stated liquidation amount thereof, the Preferred
Securities tendered or deemed tendered for purchase.
(f) If, as a result of the efforts described in 7.13(e), the
Remarketing Agent has determined that it will be able to remarket all of the
Preferred Securities tendered or deemed
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tendered for purchase at a price of 100.25% of the aggregate stated
liquidation amount of such Preferred Securities, the Remarketing Agent
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 100.25% of the
aggregate stated liquidation amount of such Preferred Securities, that
the Remarketing Agent determines, in its sole judgment, to be the
lowest rate per annum that will enable it 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 the rate determined by the
Remarketing Agent, in its sole reasonable 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 Remarketing
Date, the Remarketing Agent is 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 Agent shall so advise by telephone the Depositary, the
Property 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
Remarketing Date, the Remarketing Agent shall advise, by telephone (i)
the Depositary, the Property 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.
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(l) The Remarketing Agent is 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 Agent 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 Senior Deferrable Notes 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; provided, however, that for the performance of
its services, the Remarketing Agent will retain from the proceeds of
the Remarketing an amount equal to 0.25% of the aggregate stated
liquidation amount of all remarketed Preferred Securities.
(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
Agent 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 Senior Deferrable Notes
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
Senior Deferrable Notes 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 Senior
Deferrable Notes 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 Senior Deferrable Notes will not be taxable to the
holders of the Preferred Securities for United States federal
income tax purposes; or
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(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 Regular Trustees shall terminate the Trust by executing and
filing a certificate of cancellation with the Secretary of State of the State of
Delaware.
(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, Senior Deferrable Notes are to be
distributed in connection with such Liquidation, then the Holders of the
Securities shall receive on a Pro Rata basis Senior Deferrable Notes 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 Senior Deferrable Notes
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 Senior Deferrable
Notes 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 Senior Deferrable Notes in a principal amount equal to the stated
liquidation amount of the Securities, bearing accrued and unpaid interest in an
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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:
(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
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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 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) The Senior Deferrable Notes Issuer shall indemnify, to
the full extent permitted by law, any Senior Deferrable Notes Issuer
Indemnified Person who was
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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 Senior Deferrable Notes 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 Senior Deferrable Notes Issuer 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) The Senior Deferrable Notes Issuer shall indemnify, to
the full extent permitted by law, any Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes 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
Senior Deferrable Notes Issuer only as authorized in the specific case
upon a determination that indemnification of the Senior Deferrable
Notes 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 Senior
Deferrable Notes 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 Senior Deferrable Notes Issuer in advance of the final
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disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Senior Deferrable Notes 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
Senior Deferrable Notes Issuer as authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Senior
Deferrable Notes 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 Senior Deferrable Notes
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 such
Senior Deferrable Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes Issuer and
each Senior Deferrable Notes 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 Senior Deferrable Notes Issuer or the Trust may
purchase and maintain insurance on behalf of any Person who is or was a
Senior Deferrable Notes 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 Senior Deferrable Notes 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.
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(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 Senior Deferrable Notes Issuer
Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person. The provisions of
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 or the resignation or removal of the Property Trustee or
Delaware Trustee, as the case may be.
(b) The Senior Deferrable Notes 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
"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.
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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.
(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 Senior Deferrable Notes 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,
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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.
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;
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(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 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;
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(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).
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 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
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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.
(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 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 without
prior notice, 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);
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(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.
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
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Kansas City, Missouri 64105
Attention: Dale J. Wolf
Telephone No. __________
Fax 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):
Bank One Delaware, Inc.
201 North Walnut Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
Telephone No. __________
Fax No: ________________
(c) if given to the Property Trustee, at its Corporate Trust
Office (telephone no. _____________ and fax no. (312) 407-1708) (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
Telephone No. __________
Fax 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.
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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.
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, Senior Deferrable Notes Issuer and
Common Securities Holder
By:---------------------------------------
Dale J. Wolf, Vice President-Finance,
Secretary and Treasurer
BANK ONE TRUST COMPANY, NA
as Property Trustee
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By:----------------------------------
Name:--------------------------------
Title:-------------------------------
BANK ONE DELAWARE, INC.
as Delaware Trustee
By:----------------------------------
Name:
Title:
-------------------------------------
Dale J. Wolf, as Regular Trustee
-------------------------------------
Ellen E. Fairchild, as Regular Trustee
--------------------------------------
Kenneth C. Jones, as Regular Trustee
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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 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, Bank One
Trust Company, NA, as Property Trustee, Bank One Delaware, Inc., as Delaware
Trustee,
1
<PAGE>
and the holders from time to time, of undivided beneficial 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 Senior Deferrable Notes as indebtedness of the Sponsor and the
Preferred Securities as evidence of undivided indirect beneficial ownership
interests in the Senior Deferrable Notes.
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.
BANK ONE TRUST COMPANY, NA
------------------------------
By:---------------------------
Title:------------------------
2
<PAGE>
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, Bank One
Trust Company, NA, as Property Trustee, Bank One Delaware, Inc., 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 September ___, 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 Senior Deferrable Notes as indebtedness of the Sponsor
and the Common Securities as evidence of an undivided indirect beneficial
ownership interest in the Senior Deferrable Notes.
1
<PAGE>
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.
BANK ONE TRUST COMPANY, NA
----------------------------------
By:-------------------------------
Title:----------------------------
2
<PAGE>
EXHIBIT 4(m)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UTILICORP UNITED INC.
And
BANK ONE TRUST COMPANY, NA
As Purchase Contract Agent
FORM OF
PURCHASE CONTRACT AGREEMENT
Dated as of September ____, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<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.............................................................10
Section 1.3. Form of Documents Delivered to Purchase Contract Agent...........................................11
Section 1.4. Acts of Holders; Record Dates....................................................................11
Section 1.5. Notices..........................................................................................12
Section 1.6. Notice to Holders; Waiver........................................................................13
Section 1.7. Effect of Headings and Table of Contents.........................................................14
Section 1.8. Successors and Assigns...........................................................................14
Section 1.9. Separability Clause..............................................................................14
Section 1.10. Benefits of Agreement...........................................................................14
Section 1.11. Governing Law...................................................................................14
Section 1.12. Legal Holidays..................................................................................15
Section 1.13. Counterparts....................................................................................15
Section 1.14. Inspection of Agreement.........................................................................15
ARTICLE II. Certificate Forms....................................................................................15
Section 2.1. Forms of Certificates Generally..................................................................15
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication..................................17
ARTICLE III. The Securities......................................................................................17
Section 3.1. Amount; Form and Denominations...................................................................17
Section 3.2. Rights and Obligations Evidenced by the Certificates.............................................17
Section 3.3. Execution, Authentication, Delivery and Dating...................................................18
Section 3.4. Temporary Certificates...........................................................................19
Section 3.5. Registration; Registration of Transfer and Exchange..............................................19
Section 3.6. Book-Entry Interests.............................................................................20
Section 3.7. Notices to Holders...............................................................................21
Section 3.8. Appointment of Successor Clearing Agency.........................................................21
Section 3.9. Definitive Certificates..........................................................................21
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates..............................................22
Section 3.11. Persons Deemed Owners...........................................................................23
Section 3.12. Cancellation....................................................................................23
Section 3.13. Creation of Treasury PEPS Units by Substitution of Treasury Securities..........................24
Section 3.14. Reestablishment of PEPS Units...................................................................25
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.....................................26
Section 3.16. No Consent to Assumption........................................................................27
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<PAGE>
ARTICLE IV. The Preferred Securities.............................................................................28
Section 4.1. Interest Payments; Rights to Interest Payments Preserved.........................................28
Section 4.2. Notice and Voting................................................................................29
Section 4.3. Distribution of Senior Deferrable Notes; Tax Event Redemption....................................29
ARTICLE V. The Purchase Contracts................................................................................31
Section 5.1. Purchase of Shares of Common Stock...............................................................31
Section 5.2. Purchase Contract Payments.......................................................................33
Section 5.3. Deferral of Purchase Contract Payments...........................................................34
Section 5.4. Payment of Purchase Price........................................................................34
Section 5.5. Issuance of Shares of Common Stock...............................................................38
Section 5.6. Adjustment of Settlement Rate....................................................................39
Section 5.7. Notice of Adjustments and Certain Other Events...................................................45
Section 5.8. Termination Event; Notice........................................................................46
Section 5.9. Early Settlement.................................................................................46
Section 5.10. Intentionally Omitted...........................................................................48
Section 5.11. No Fractional Shares............................................................................48
Section 5.12. Charges and Taxes...............................................................................49
ARTICLE VI. Remedies.............................................................................................49
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract Payments and to
Purchase Shares of Common Stock ..............................................................................49
Section 6.2. Restoration of Rights and Remedies...............................................................49
Section 6.3. Rights and Remedies Cumulative...................................................................50
Section 6.4. Delay or Omission Not Waiver.....................................................................50
Section 6.5. Undertaking for Costs............................................................................50
Section 6.6. Waiver of Stay or Extension Laws.................................................................50
ARTICLE VII The Purchase Contract Agent..........................................................................51
Section 7.1. Certain Duties and Responsibilities..............................................................51
Section 7.2. Notice of Default................................................................................52
Section 7.3. Certain Rights of Purchase Contract Agent........................................................52
Section 7.4. Not Responsible for Recitals or Issuance of Securities...........................................53
Section 7.5. May Hold Securities..............................................................................53
Section 7.6. Money Held in Custody............................................................................53
Section 7.7. Compensation and Reimbursement...................................................................53
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility..........................................54
Section 7.9. Resignation and Removal; Appointment of Successor................................................54
Section 7.10. Acceptance of Appointment by Successor..........................................................55
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.....................................56
Section 7.12. Preservation of Information; Communications to Holders..........................................56
Section 7.13. No Obligations of Purchase Contract Agent.......................................................56
Section 7.14. Tax Compliance..................................................................................57
ARTICLE VIII Supplemental Agreements.............................................................................58
Section 8.1. Supplemental Agreements Without Consent of Holders...............................................58
Section 8.2. Supplemental Agreements With Consent of Holders..................................................58
ii
<PAGE>
Section 8.3. Execution of Supplemental Agreements.............................................................59
Section 8.4. Effect of Supplemental Agreements................................................................59
Section 8.5. Reference to Supplemental Agreements.............................................................60
ARTICLE IX. Merger, Consolidation, Share exchange, Sale or Conveyance...........................................60
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange, Sell or
Convey Property Except Under Certain Conditions ..............................................................60
Section 9.2. Rights and Duties of Successor Corporation.......................................................61
Section 9.3. Officers'Certificate and Opinion of Counsel Given to Purchase Contract Agent.....................61
ARTICLE X Covenants..............................................................................................61
Section 10.1. Performance Under Purchase Contracts............................................................61
Section 10.2. Maintenance of Office or Agency.................................................................61
Section 10.3. Company to Reserve Common Stock.................................................................62
Section 10.4. Covenants as to Common Stock....................................................................62
Section 10.5. Statements of Officers of the Company as to Default.............................................62
Section 10.6. ERISA...........................................................................................63
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>
iii
<PAGE>
PURCHASE CONTRACT AGREEMENT, dated as of September ____, 1999,
between UTILICORP UNITED INC., a Delaware corporation (the "Company"), and
BANK ONE TRUST COMPANY, NA, a national 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) Reset Rate, (xii) Tax Event
Redemption, (xiii) Tax Event Redemption Date; (xiv) Two-Year Benchmark
Treasury Rate; (xv) Treasury Portfolio; and (xvi) Treasury Portfolio Purchase
Price; and
(e) the following terms have the meanings given to them in this
Section 1.1(e):
<PAGE>
"Act" has the meaning, with respect to any Holder, set forth in
Section 1.4.
"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.
"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.
2
<PAGE>
"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 Chase Manhattan Trust Company, National
Association, 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).
"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 Bank One Trust Company, NA, One North State Street,
Ninth Floor, Chicago, Illinois 60602, Attention: Corporate Trust
Administration.
"Coupon Rate" means the percentage rate per annum at which each
Senior Deferrable Note will bear interest initially.
"Current Market Price" has the meaning set forth in Section
5.6(a)(8).
"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
3
<PAGE>
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.
"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).
"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, as
amended, 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).
"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 November 1, 1990,
between the Company and the Indenture Trustee (including any provisions of
the TIA that are deemed incorporated therein), as supplemented by the Twelfth
Supplemental Indenture dated as of September __, 1999, pursuant to which the
Senior Deferrable Notes will be issued.
4
<PAGE>
"Indenture Trustee" means Bank One Trust Company, NA, a national
banking association and the successor in interest to The First National Bank
of Chicago, 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 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, in the opinion of each such
officer, each such officer has made such examination or
investigation as 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;
5
<PAGE>
(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 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 February 16, May 16, August 16 and
November 16, commencing November 16, 1999.
"PEPS Unit" means the collective rights and obligations of a Holder
of a PEPS Units Certificate in respect of a Preferred Security, the Senior
Deferrable Notes 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.
6
<PAGE>
"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 Senior Deferrable Notes, 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.
"Pledged Senior Deferrable Notes" 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 Bank One Trust Company, NA, as property
trustee under the Declaration, or any successors thereto that is a financial
institution unaffiliated with the Company.
7
<PAGE>
"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.
"Purchase Contract Settlement Date" means November 16, 2002.
"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.
"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).
"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.
"Securities Intermediary" means Chase Manhattan Trust Company,
National Association, 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.
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"Security" means a PEPS Unit or a Treasury PEPS Unit, as the case
may be.
"Senior Deferrable Notes" means the series of Senior Deferrable
Notes issued by the Company under the Indenture and held by the Property
Trustee.
"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.
"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.
"Treasury PEPS Unit" means, following the substitution of Treasury
Securities for Preferred Securities or Senior Deferrable Notes as collateral
to secure a Holder's obligations
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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. 912833 FR6) which are the principal strip of the ____% U.S.
Treasury Securities which mature on November 16, 2002.
"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
September _____, 1999, between the Company and Morgan Stanley & Co.
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated and
PaineWebber Incorporated.
"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."
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;
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(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.
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.
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(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, 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;
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provided that notice shall be deemed given to the Purchase Contract Agent
only upon receipt thereof:
If to the Purchase Contract Agent:
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Telecopier No.: (312) 407-1708
Attention: Corporate Trust Administration
If to the Company:
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Telecopier No.: (816) 421-3591
Attention: Corporate Treasurer
If to the Collateral 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 Property Trustee:
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Telecopier No.: (312) 407-1708
Attention: Corporate Trust Administration
If to the Indenture Trustee:
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Telecopier No.: (312) 407-1708
Attention: Corporate Trust Administration
SECTION 1.6. NOTICE TO HOLDERS; WAIVER.
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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 and
the Purchase Contract Agent shall bind their respective successors and
assigns, whether so expressed or not.
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.
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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 to 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.
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.
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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 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."
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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 10,000,000 (including 1,000,000 Securities 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 Senior
Note or the Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, subject to the Pledge of such Preferred Security, such Senior
Note 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 Senior Note 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 Senior Note 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
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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.
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
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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.
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.
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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 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
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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 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,
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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 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 Senior Note 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.
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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 Treasury Securities, the Senior Deferrable
Notes, 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 Treasury Securities,
the Senior Deferrable Notes, 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.
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, Senior Deferrable Notes, 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
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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.
Subject to the conditions set forth in this Agreement, Holder may
separate the Preferred Securities or the Senior Deferrable Notes, as
applicable, from the related Purchase Contracts in respect of such Holder's
PEPS Units by substituting for such Preferred Securities or Senior Deferrable
Notes, 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 Senior Deferrable Notes, 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
November 16, 2002:
(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 Senior
Deferrable Notes comprising part of such PEPS Units, as the
case may be; and
(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 Senior Deferrable Notes, 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 Senior Deferrable Notes, 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 Senior Deferrable Notes, 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;
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(ii) transfer the Preferred Securities or the Senior
Deferrable Notes, 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 Senior
Deferrable Notes, as the case may be, from the related Purchase Contracts and
to substitute Treasury Securities for such Preferred Securities or the Senior
Deferrable Notes, 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. If a Tax Event Redemption has occurred, Holders may no
longer convert their PEPS Units into Treasury 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
Senior Deferrable Notes, 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.
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
Senior Deferrable Notes, 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.
Subject to the conditions set forth in this Agreement, Holder of
Treasury PEPS Units may reestablish PEPS Units at any time (i) prior to or on
the seventh Business Day immediately preceding November 16, 2002, by:
(i) depositing with the Securities Intermediary Preferred
Securities or the Senior Deferrable Notes, as the case may be,
having an aggregate liquidation amount in the case of Preferred
Securities or aggregate principal amount in the case of Senior
Deferrable Notes, as the case may be, equal to the aggregate
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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 Senior Deferrable Notes, 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 Senior Deferrable Notes, 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.
Holders of Treasury PEPS Units may only reestablish PEPS Units in
integral multiples of 40 Treasury PEPS Units. If a Tax Event Redemption has
occurred, Holders may no longer convert their Treasury PEPS Units into PEPS
Units.
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, Senior Deferrable Notes,
the appropriate Applicable
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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, Senior Deferrable Notes, 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, Senior
Deferrable Notes, 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, Senior
Deferrable Notes, 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.
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.
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ARTICLE IV
THE PREFERRED SECURITIES
SECTION 4.1. INTEREST PAYMENTS; RIGHTS TO INTEREST PAYMENTS PRESERVED.
Any distribution on any Preferred Security, any Senior Note 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 Senior Note 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, Senior
Deferrable Notes 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,
Senior Deferrable Notes 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, Senior Deferrable
Notes 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, Senior
Deferrable Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the 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 Senior Deferrable Notes 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 Senior Deferrable Notes.
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The applicable Coupon Rate on the Senior Deferrable Notes on and
after November 16, 2002, shall be equal to the Reset Rate (such Reset Rate to
be in effect on and after November 16, 2002).
Not later than 15 calendar days nor more than 30 calendar days prior
to the Remarketing Date, the Company shall request DTC (or any successor
Clearing Agency), to notify the Beneficial Owners or Clearing Agency
Participants holding PEPS Units or Treasury 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 Senior Deferrable
Notes, 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 Senior Deferrable Notes are entitled to vote or upon
any solicitation of consents, waivers or proxies of holders of Preferred
Securities or Senior Deferrable Notes, 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 Senior Deferrable Notes, 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 Senior Deferrable Notes
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 Senior
Deferrable Notes, 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 Senior Deferrable Notes underlying such PEPS
Unit. The Company hereby agrees, if applicable, to solicit Holders of PEPS
Units to timely instruct the Purchase Contract Agent in order to enable the
Purchase Contract Agent to vote such Preferred Securities or Senior
Deferrable Notes and the Trust shall covenant to this effect in the
Declaration.
SECTION 4.3. DISTRIBUTION OF SENIOR DEFERRABLE NOTES; TAX EVENT
REDEMPTION.
Upon the dissolution and liquidation of the Trust in accordance with
the Declaration, a principal amount at maturity of Senior Deferrable Notes
constituting the assets of the Trust and underlying the Preferred Securities
equal to the aggregate liquidation amount of the Pledged
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Preferred Securities shall be delivered to the Securities Intermediary in
exchange for the Pledged Preferred Securities. Thereafter, the Senior
Deferrable Notes 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 dissolution and liquidation of the Trust, the
Holders and the Collateral Agent shall have such security interests, rights
and obligations with respect to the Senior Deferrable Notes as the Holders
and the Collateral Agent had in respect of the Preferred Securities subject
to the Pledge thereof as provided in 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 dissolution and liquidation of the Trust and the substitution
of Senior Deferrable Notes 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 Senior Deferrable Notes. 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
Senior Deferrable Notes, 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 Senior
Deferrable Notes, as the case may be, subject to the Pledge thereof as
provided in the Pledge Agreement, and any reference herein to the Preferred
Securities or the Senior Deferrable Notes 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 form (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 Senior Deferrable Notes 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, Senior Deferrable Notes, 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 Senior Deferrable Notes 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
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maturity on the Purchase 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 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 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 November 16, 2002. 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.
(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 November 16, 2002, 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
Contracts 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 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.
(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
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to have consented to the disposition of the Pledged Preferred
Securities or the Pledged Senior Deferrable Notes pursuant to the
Remarketing as described in paragraph (b) below.
(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 Senior
Deferrable Notes 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 Senior
Deferrable Notes, 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 Morgan Stanley & Co. Incorporated (the "Remarketing
Agent") pursuant to the Remarketing Agreement to sell such Preferred
Securities or Senior Deferrable Notes. 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
November 16, 2002, of the aggregate number of Preferred Securities or Senior
Deferrable Notes 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 Senior Deferrable Notes to be presented to
the Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent and
such Preferred Securities or Senior Deferrable Notes, the Remarketing Agent
shall, on the third Business Day immediately preceding November 16, 2002, use
reasonable efforts to remarket such Preferred Securities or Senior Deferrable
Notes on such date at a price equal to at least 100.25% of the Stated Amount
($25.0625) per Preferred Security or Senior Deferrable Note, as provided in
the Remarketing Agreement. The proceeds from the Remarketing shall be
invested by the Collateral Agent in Permitted Investments, in accordance with
the Pledge Agreement, and then applied 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. In addition, $.0625 per Preferred Security or Senior Deferrable Note of
the proceeds shall automatically be remitted to the Remarketing Agent for
services rendered in connection with the Remarketing (the "Remarketing Fee").
Any proceeds remaining after satisfaction of the Purchase Contract and
payment of the Remarketing Fee shall be payable to the Holder of such PEPS
Unit.
If, in spite of using its reasonable efforts, the Remarketing Agent
cannot remarket the related Preferred Securities or Senior Deferrable Notes
of such Holders of PEPS Units at a price equal to at least 100.25% of the
Stated amount ($25.0625), then the Remarketing Agent shall increase the
distribution rate on the Preferred Securities or the interest rate on the
Senior Deferrable Notes, as the case may be, so that the market value of such
Preferred Securities will
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equal $25.0625. If the Remarketing Agent cannot Remarket the Preferred
Securities or the Senior Deferrable Notes, as the case may be, after such
increase the Remarketing shall be deemed to have failed (a "Failed
Remarketing") and in accordance with the terms of the Pledge Agreement, the
Collateral Agent, for the benefit of the Company, shall exercise its rights
as a secured party with respect to such Preferred Securities or Senior
Deferrable Notes, 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 Senior Deferrable Notes, any accrued and unpaid distributions
on such Preferred Securities or Senior Deferrable Notes 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 Senior
Deferrable Notes relate. The Company shall cause a notice of such Failed
Remarketing to be published on the second 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, and on Bloomberg News.
(c) With respect to any Preferred Securities or Senior Deferrable
Notes 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 Senior Deferrable
Notes in full satisfaction of the Holders' obligations under the Purchase
Contracts or (ii) sell the Preferred Securities or Senior Deferrable Notes 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 November 16, 2002. 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. Treasury PEPS Unit holders may make Cash
Settlements only in integral multiples of 40 Treasury PEPS Units.
(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 November 16, 2002, 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
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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.
(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 or a holder of a
Preferred Security that is no longer part of a PEPS Unit may elect
to have the Preferred Securities or the Senior Deferrable Notes, as
the case may be, that are 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 November 16, 2002, of the
aggregate number of Preferred Securities or Senior Deferrable Notes,
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 Senior Deferrable Notes, 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:
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(i) the Collateral Agent will in accordance with the
terms of the Pledge Agreement cause the Pledged Preferred
Securities, Pledged Senior Deferrable Notes, 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 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, Senior
Deferrable Notes, 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, Senior Deferrable Notes, 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, 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.
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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 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
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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
(except pursuant to the Company's Dividend Reinvestment and Common
Stock Purchase Plan) the Settlement Rate in effect at the opening of
business on 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:
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(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
(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) 3.75% 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
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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 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 15%
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
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(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").
(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 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
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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.
(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.
(i) 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,
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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 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.
(ii) In the event of a 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) where more than 30% of the
purchase price with respect to each share of Common Stock is payable in cash
on the closing date of such consolidation or merger, then a Holder of PEPS
Units or Treasury PEPS Units, as the case may be, may settle his Purchase
Contract for cash as described in Section 5.4(a)(i) or 5.4(d)(i) hereof, as
applicable, during the one week period beginning on the twenty-first Trading
Day after the closing date of such merger (the "Early Settlement Week") at
the then applicable Settlement Rate. For the purposes of this Section, the
twenty-fourth Trading Day after the closing of the merger or consolidation
shall be deemed to be the Purchase Contract Settlement Date for the purpose
of determining the Applicable Market Value and that the deadline for
submitting the notice to settle early and the related cash payment shall be
5:00 p.m. (New York City time) of the last Business Day of the Early
Settlement Week.
(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
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(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.
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
Senior Deferrable Notes, 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. Holders of Treasury PEPS Units may only settle the related
Purchase Contracts in integral multiples of 40 Purchase Contracts. In order
to exercise the right
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to effect Early Settlement with respect to any Purchase Contracts, the Holder
of the Certificate evidencing Securities shall deliver to the Purchase
Contract Agent at the Corporate Trust Office an Election to Settle Early form
(on the reverse side of the Certificate) and any other documents requested by
the Purchase Contract Agent 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 Senior Deferrable Notes 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 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, Senior Deferrable
Notes 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
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(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, Senior Deferrable Notes, 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
Election to Settle Early form (on the reverse of the Certificate evidencing
the related Securities):
(i) transfer to the Holder the Preferred Securities,
Senior Deferrable Notes, 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 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 Senior Deferrable Notes, 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 November 16, 2002, of the aggregate number of Preferred
Securities or Senior Deferrable Notes 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 Senior Deferrable Notes, 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
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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.
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
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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 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
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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.
(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.
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(d) The Purchase Contract Agent is authorized to execute and
deliver the Pledge Agreement in its capacity as Purchase Contract Agent.
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, Senior Note, 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, debebture, 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 relevant books, records and premises of the
Company, personally or by agent or attorney; and
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(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 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. The Company may become the owner or pledgee of Securities.
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 provided hereunder 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
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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 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;
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(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
(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.
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(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.
(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
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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 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 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.
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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;
(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
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rights of Holders of PEPS Units to substitute Treasury Securities
for the Pledged Preferred Securities or Pledged Senior Deferrable
Notes or the Applicable Ownership Interest of the Treasury Portfolio
or the rights of Holders or Treasury PEPS Units to substitute Preferred
Securities, Senior Deferrable Notes 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 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.
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.
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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 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.
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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.
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.
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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.
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
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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:
BANK ONE TRUST COMPANY, NA
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
Purchase Contract Agent to the account designated by the Purchase Contract
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 Purchase Contract 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 November, 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $25 (the
"Stated Amount"), a number of shares of Common
A-2
<PAGE>
Stock, $1.00 par value ("Common Stock"), of the Company, equal to the
Settlement Rate, unless 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 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 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, the Applicable Ownership (as
specified in clause (B) of the definition of such term) 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.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
UTILICORP UNITED INC.
By:
-----------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as
to obligations of such
Holder under the Purchase
Contracts evidenced hereby)
By: BANK ONE TRUST
COMPANY, NA, not
individually but solely as
Attorney-in-Fact of such
Holder
By:
-----------------------
Name:
Title:
DATED: September _____, 1999
A-4
<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: BANK ONE TRUST
COMPANY, NA, as Purchase
Contract Agent
By:
----------------------
Authorized Officer
Dated: September _____, 1999
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 Bank One Trust Company, NA, 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.
Unless a Cash Settlement or an Early Settlement has occurred, 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
greater than or equal to $_________ (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
_______________; 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 (and in each case rounded upward or downward to the nearest
1/10,000th of a share).
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:
A-6
<PAGE>
(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;
(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. 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 the Purchase Contract Settlement Date (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, who does not effect on or
prior to 5:00 p.m. (New York City time) on the seventh Business Day prior to
the Purchase Contract Settlement Date, an effective 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 the Purchase Contract 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.
A-7
<PAGE>
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 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 dissolution and liquidation of the Trust, a principal
amount of the Senior Deferrable Notes 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 Senior Deferrable Notes 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
A-8
<PAGE>
constituting a part of such PEPS Units. Following the dissolution and
liquidation of the Trust, the Holders and the Collateral Agent shall have
such security interests, rights and obligations with respect to the
Subordinated Senior Deferrable Notes 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 Senior
Deferrable Notes and any reference herein to the liquidation amount of the
Preferred Securities shall be deemed to be a reference to the principal
amount of the Senior Deferrable Notes.
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 Senior
Deferrable Notes 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 on
behalf of the Holders of PEPS Units, 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 Purchase
Contract Agent for the benefit of the Holders of such PEPS Units and (iii)
remit the remaining portion of such Redemption Price to the Purchase Contract
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 Senior Deferrable Notes, as the case may be, subject to the
Pledge thereof as provided in 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.
A-9
<PAGE>
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 in
accordance with the terms of the Purchase 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.
A Holder of Treasury PEPS Units may recreate PEPS Units by
delivering to the Securities Intermediary Preferred Securities 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. A Holder may
recreate PEPS Units in integral multiples of 40 Treasury PEPS Units for 40
PEPS Units.
If a Tax Event Redemption has occurred, a PEPS Unit Holder may not
create Treasury Peps Units, and a Treasury PEPS Unit Holder may not recreate
a PEPS Unit.
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 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.
A-10
<PAGE>
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 to the Purchase Contract Agent at the Corporate Trust Office an
Election to Settle Early form set forth below and any other documents
requested by the Purchase Contract Agent 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 $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 sum of (x) the Purchase Contract
Payments payable on such Payment Date with respect to such Purchase
Contracts plus (x) the distributions on the related Preferred
Securities payable on such Payment Date.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, 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, 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 _____ 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 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 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
A-11
<PAGE>
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 _________
______________________________________________
TENANT: 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.
and UCU Capital Trust I 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 REGISTERED HOLDER
a Person other than the Holder,
please (i) print such Person's
name and address and (ii) Please print name and address of
provide a guarantee of your Registered Holder:
signature:
- ---------------------------------- ----------------------------------------
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]
(4) SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
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
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
</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 November 16, 2002, 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, on each 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 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:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder
under the Purchase Contracts)
By: BANK ONE TRUST COMPANY, NA,
not individually but solely
as Attorney-in-Fact of such
Holder
By:
---------------------------
Name:
Title:
Dated: September __, 1999
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: BANK ONE TRUST COMPANY, NA, as
Purchase Contract Agent
By:
------------------------------
Authorized Officer
Dated: September __, 1999
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
Bank One Trust Company, NA, 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.
Unless a Cash Settlement or an Early Settlement has occurred, 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 greater
than or equal to $________ (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 $______; 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 (and in each case rounded upward or downward to the nearest
1/10,000th of a share).
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.
B-5
<PAGE>
The "Closing Price" per share of Common Stock on any date of
determination means the:
(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 a Cash Settlement or 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 the
Purchase Contract Settlement Date, an effective Cash Settlement or who does
not effect on or prior to 5 p.m. (New York City time) on the seventh Business
Day prior to the Purchase Contract Settlement Date 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
B-6
<PAGE>
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 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
or Senior Deferrable Notes, 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 Senior Deferrable Notes with a
liquidation amount, in the case of such Preferred Securities or with a
principal amount in the case of such Senior Deferrable Notes, 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". Any such creation of PEPS Units may be effected in
multiples of 40 Treasury PEPS Units for 40 PEPS Units.
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
or the aggregate principal amount at maturity of the Pledged Senior
Deferrable Notes, as the case may be, in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. Any such recreation of
Treasury PEPS Units may be effected only in multiples of 40 PEPS Units for 40
Treasury PEPS Units.
If a Tax Event Redemption has occurred, a Treasury PEPS Unit Holder may
not recreate PEPS Units, and a PEPS Unit Holder may not create a Treasury
PEPS Unit.
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
B-7
<PAGE>
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 and after 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 to the Purchase Contract Agent at the Corporate Trust Office an
Election to Settle Early form set forth below and any other documents
requested by the Purchase Contract Agent 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) $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.
B-8
<PAGE>
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.
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
B-9
<PAGE>
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 __________
_______________________________________________
TENANT: 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 UtiliCorp United Inc.
and UCU Capital Trust I 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 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:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
Number of Treasury PEPS
Amount of decrease in Amount of decrease in Units evidenced by this Signature of
Number of Treasury PEPS Number of Treasury PEPS Global Certificate authorized officer of
Units evidenced by the Units evidenced by the following such decrease Trustee or Securities
Date Global Certificate Global Certificate or increase Custodian
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
B-15
<PAGE>
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
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
Chase Manhattan Bank, as Securities Intermediary, for credit to the Collateral
Account, $______ aggregate [principal] [liquidation] amount of [Preferred
Securities] [Senior Deferrable Notes] [Treasury Securities] in exchange for the
[Pledged Preferred Securities] [Pledged Senior Deferrable Notes] [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 Senior Deferrable Notes]
[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
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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 Senior Deferrable Notes][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 [Senior Deferrable Notes][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: BANK ONE TRUST COMPANY, NA
-----------------------------------
Name:
Title: Authorized Officer
D-1
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EXHIBIT E
NOTICE TO SETTLE BY CASH
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Re: [_______ PEPS Units] [Treasury 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 the Purchase Contract Settlement Date (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] [Treasury PEPS Units].
Date:
-------------------------------- -----------------------------------
Signature
Signature Guarantee:
---------------
Please print name and address of Registered Holder:
E-1
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EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(Settlement of Purchase Contract through Remarketing)
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Group
Telecopy: 212-946-8159
Bank One Trust Company, NA
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Telecopy: 312-402-1708
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 the
Purchase Contract Settlement Date, we hereby notify you that ______ [Preferred
Securities] [Senior Deferrable Notes] are to be tendered for purchase in the
Remarketing.
Date: By: BANK ONE TRUST COMPANY, NA
-----------------------------------
Name:
Title: Authorized Officer
F-1
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Exhibit 4(n)
UTILICORP UNITED INC.
AND
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, AS COLLATERAL AGENT
AND
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, AS SECURITIES INTERMEDIARY
AND
BANK ONE TRUST COMPANY, NA, AS PURCHASE CONTRACT AGENT
FORM OF
PLEDGE AGREEMENT
DATED AS OF SEPTEMBER ____, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<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.......................................................................................6
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......................................................................9
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..................................................................................14
SECTION 5.6 EARLY SETTLEMENT.................................................................................15
SECTION 5.7 APPLICATION OF PROCEEDS SETTLEMENT...............................................................15
SECTION 5.8 TAX EVENT REDEMPTION..............................................................................17
</TABLE>
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<TABLE>
<S> <C>
Section 6. Voting Rights - Trust Preferred Securities and Pledged Senior Deferrable Note........................17
Section 7. Rights and Remedies..................................................................................17
SECTION 7.1 RIGHTS AND REMEDIES OF THE COLLATERAL AGENT......................................................17
SECTION 7.2 SUBSTITUTION OF DEBENTURES.......................................................................19
SECTION 7.3 TAX EVENT REDEMPTION.............................................................................19
SECTION 7.4 SUBSTITUTIONS....................................................................................19
SECTION 8. REPRESENTATIONS AND WARRANTIES; COVENANTS...........................................................19
SECTION 8.1 REPRESENTATIONS AND WARRANTIES...................................................................19
SECTION 8.2 COVENANTS........................................................................................20
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.........................................22
SECTION 9.4 RIGHTS IN OTHER CAPACITIES.......................................................................22
SECTION 9.5 NON-RELIANCE ON COLLATERAL AGENT AND SECURITIES INTERMEDIARY.....................................22
SECTION 9.6 COMPENSATION AND INDEMNITY.......................................................................23
SECTION 9.7 FAILURE TO ACT...................................................................................23
SECTION 9.8 RESIGNATION OF COLLATERAL AGENT AND SECURITIES INTERMEDIARY......................................24
SECTION 9.9 RIGHT TO APPOINT AGENT OR ADVISOR................................................................25
SECTION 9.10 SURVIVAL........................................................................................25
SECTION 9.11. EXCULPATION....................................................................................25
Section 10. Amendment...........................................................................................26
SECTION 10.1 AMENDMENT WITHOUT CONSENT OF HOLDERS............................................................26
SECTION 10.2 AMENDMENT WITH CONSENT OF HOLDERS...............................................................26
SECTION 10.3. EXECUTION OF AMENDMENTS........................................................................27
SECTION 10.4. EFFECT OF AMENDMENTS...........................................................................27
SECTION 10.5. REFERENCE TO AMENDMENTS........................................................................27
Section 11. Miscellaneous.......................................................................................28
SECTION 11.1 NO WAIVER.......................................................................................28
SECTION 11.2 GOVERNING LAW...................................................................................28
SECTION 11.3 NOTICES.........................................................................................28
SECTION 11.4 SUCCESSORS AND ASSIGNS..........................................................................28
SECTION 11.5 COUNTERPARTS....................................................................................29
</TABLE>
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<TABLE>
<S> <C>
SECTION 11.6 SEVERABILITY....................................................................................29
SECTION 11.7 EXPENSES, ETC...................................................................................29
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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<PAGE>
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of September ____, 1999, among UtiliCorp
United Inc., a Delaware corporation (the "Company"), Chase Manhattan Trust
Company, a National Association, a national banking association, as collateral
agent (in such capacity, together with its successors in such capacity, the
"Collateral Agent"), Chase Manhattan Trust Company, National Association, 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 Bank One Trust Company, NA, a
national 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--PEPSSM 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 November 16, 2004.
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", "Officers' Certificate", "Opinion of
Counsel", "Outstanding Securities", "PEPS Units", "Purchase Contract", "Purchase
Contract Payments", "Purchase Contract Settlement Date", "Purchase Price",
"Remarketing Agent", "Remarketing Agreement", "Senior Deferrable Notes",
"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", "Indenture Trustee", "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 "Chase Manhattan Trust
Company, 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 Senior Deferrable Notes 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
2
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with hereof and (E) payments made by Holders pursuant to Section 5.5
hereof (collectively, the "Collateral");
(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;
3
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(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 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 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 Senior Deferrable Notes" means Senior Deferrable Notes 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 ss. 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:
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(1) in the case of certificated securities in registered form,
delivery as provided in ss. 8-301(a) of the UCC, indorsed to the
transferee or in blank by an effective endorsement;
(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. 912833 FR6) which are the principal strips of the _____% U.S. Treasury
Securities which mature on November 15, 2002.
"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.
5
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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 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, the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, the Senior Deferrable Notes 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 Senior Deferrable
Notes 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 Senior Deferrable Notes 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 Senior Deferrable Notes or security
6
<PAGE>
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.
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 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
7
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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.
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.
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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.
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 dissolved and liquidated, at any time prior to or on
the seventh Business Day immediately preceding November 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:
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(1) Transferring to the Securities Intermediary for credit to the
Collateral Account Treasury Securities or security entitlements
thereto having a Value equal to the aggregate 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
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 dissolved and liquidated, and the Senior Deferrable Notes have become
a component of the PEPS Units, at any time on or prior to the seventh Business
Day immediately preceding November 16, 2002, a Holder of PEPS Units shall have
the right to substitute Treasury Securities or security entitlements thereto for
the Pledged Senior Deferrable Notes 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 aggregate principal amount at
maturity of Pledged Senior Deferrable Notes 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 or securities entitlements thereto
Transferred by such Holder and (C) requesting that the Collateral
Agent release from the Pledge the Pledged Senior Deferrable Notes that
are a component of such PEPS Units; and
(2) delivering the related PEPS Units to the Purchase Contract
Agent.
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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 Senior Deferrable Notes 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.
(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 Senior Deferrable
Notes, 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 dissolved and liquidated, at any time on or prior to
the seventh Business Day immediately preceding November 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 instruct 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, 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 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 dissolved and liquidated, and the Senior Deferrable Notes have become
a component of the
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PEPS Units, at any time on or prior to the seventh Business Day immediately
preceding November 16, 2002, a Holder of Treasury PEPS Units shall have the
right to reestablish PEPS Units by substitution of Senior Deferrable Notes 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 Senior Deferrable Notes or security entitlements
thereto having a principal 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 the Senior Deferrable
Notes 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 Senior Deferrable
Notes 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 in the form provided in Exhibit D to release
such Pledged Treasury Securities from 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.
(d) Upon credit to the Collateral Account of Preferred Securities or
security entitlements thereto or Senior Deferrable Notes or security
entitlements thereto, as the case may be, delivered by a Holder of Treasury PEPS
Units and receipt of the related instruction from the Collateral Agent, the
Securities Intermediary shall release the Pledged Treasury Securities 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 5.4 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 Senior Deferrable Notes (if the Trust has been dissolved
and liquidated, and the Senior Deferrable Notes or security
entitlements thereto have become a component of the PEPS Units);
(2) any Pledged Treasury Securities, and
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(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;
provided, however, if any Holder shall be entitled to receive less than $1,000
with respect to his interest in the Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, the
Purchase Contract Agent shall have the right to dispose of such interest for
cash and deliver to such Holder cash in lieu of delivering the Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio.
(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
Senior Deferrable Notes, 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 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 Senior Deferrable Notes, 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 Senior Deferrable Notes, 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.
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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
November 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 the PEPS Unit holder's or the
Treasury 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, the Pledged Senior
Deferrable Notes or Pledged Treasury Securities, as applicable, 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, Pledged Senior Deferrable Notes or the 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.
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 Senior Deferrable Notes in accordance with paragraph 5.4(a)(iii) of
the Purchase Contract Agreement.
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(c) If a Holder of a Treasury PEPS Unit or a Holder of PEPS Unit (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) As soon as practicable after 11:00 a.m. (New York City time) on the
fifth 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 Senior Deferrable Notes 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 (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 Senior Deferrable Notes 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 November 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 Senior Deferrable Notes. In such event, the Collateral
Agent shall instruct the Securities
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Intermediary to Transfer the related Pledged Preferred Securities or Pledged
Senior Deferrable Notes to the Remarketing Agent for remarketing. Upon receiving
such Pledged Preferred Securities or Pledged Senior Deferrable Notes, the
Remarketing Agent, pursuant to the terms of the Remarketing Agreement, will use
reasonable efforts to remarket such Pledged Preferred Securities or Pledged
Senior Deferrable Notes. The Remarketing Agent will deposit 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 such remarketing equal to (i) the aggregate
liquidation amount of the Preferred Securities or aggregate principal amount of
such Pledged Senior Deferrable Note 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, and (ii) to the number of Preferred Securities or
Pledged Senior Deferrable Notes remarketed by the Remarketing Agent multiplied
by .0625 to pay the Remarketing Agent for its services in connection with the
remarketing. The balance of the Proceeds from the remarketing, 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 Senior Deferrable Notes 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 a Treasury PEPS Unit or a Holder of PEPS Unit (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 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.
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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 Senior Deferrable Notes, the Securities Intermediary shall release
the Pledged Preferred Securities or the Pledged Senior Deferrable Notes, as
applicable, from the Collateral Account and shall promptly transfer the Pledged
Preferred Securities to the Trust and the Pledged Senior Deferrable Notes to the
Company, as applicable.
SECTION 6. VOTING RIGHTS - TRUST PREFERRED SECURITIES AND PLEDGED SENIOR
DEFERRABLE NOTES
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 Senior Deferrable Note 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
Senior Deferrable Notes; 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 Senior Deferrable Notes, including notice of any meeting at which
holders of the Preferred Securities or the Pledged Senior Deferrable Notes are
entitled to vote or solicitation of consents, waivers or proxies of holders of
the Preferred Securities or Senior Deferrable Notes, the Collateral Agent shall
use reasonable efforts to send promptly to the Purchase Contract Agent such
notice 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 Senior Deferrable Notes (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 Senior Deferrable Notes.
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
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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 Senior Deferrable
Notes, 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 Senior Deferrable Notes, 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 Pledged Preferred Securities, (ii) the principal amount of the Pledged
Senior Deferrable Notes, (iii) the principal amount of the Pledged Treasury
Securities and (iv) the principal 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, 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.
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SECTION 7.2 SUBSTITUTION OF SENIOR DEFERRABLE NOTES. If the Trust shall
have been dissolved and liquidated prior to the Purchase Contract Settlement
Date, the Securities Intermediary shall transfer to the Collateral Agent Senior
Deferrable Notes 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 Senior Deferrable Notes, 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
Senior Deferrable Notes, 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 Senior Deferrable Notes for payment
as may be required by their respective terms. Upon receipt of such funds, the
Pledged Preferred Securities or Pledged Senior Deferrable Notes, 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, Senior Deferrable
Notes 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.
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
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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
(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:
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(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.
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 written instruments
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
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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 written communication (including, without limitation, any thereof by
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 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.
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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 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.
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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 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
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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.
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
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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
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 Senior Deferrable Notes, as the case may be, or the rights of
Holders of Treasury PEPS Units to substitute Preferred Securities or
Senior Deferrable Notes, 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
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(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.
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.
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SECTION 11. MISCELLANEOUS.
SECTION 11.1 NO WAIVER.
No failure on the part of the Collateral Agent, the Securities
Intermediary or any of their respective 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, the Securities Intermediary or any of their
respective 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 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.
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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 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;
29
<PAGE>
(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.
30
<PAGE>
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. BANK ONE TRUST COMPANY, NA, 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 One North State Street, Ninth Floor
Kansas City, Missouri 64105 Chicago, Illinois 60602
Attention: Dale J. Wolf Attention: Corporate Trust Administration
Telecopy: Telecopy: (312) 407-1708
- ---------------------------------- -----------------------------------------
THE CHASE MANHATTAN BANK, THE CHASE MANHATTAN BANK,
as Collateral Agent as Securities Intermediary
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
450 West 33rd Street 450 West 33rd Street
New York, New York 10001 New York, New York 10001
Attention: Corporate Trust Group Attention: Corporate Trust Group
Telecopy: (212) 946-8159 Telecopy: (212) 946-8159
31
<PAGE>
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury PEPS Units)
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. (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 Chase
Manhattan Bank, 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]
[Pledged Senior Deferrable Notes] 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 Senior Deferrable Notes]] in
accordance with Section 5.2 of the Pledge Agreement.
BANK ONE TRUST COMPANY, NA
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 Senior Deferrable Notes]:
- -------------------------------------- --------------------------------
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 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. (the "Company") and UCU
Capital Trust I Securities Account No. ______ entitled "The
Chase Manhattan Bank," 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,
Bank One Trust Company, NA, 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 $__________ Value of Treasury Securities
or security entitlements thereto has been credited to the Collateral Account by
or for the benefit of _________, as Holder of PEPS Units (the "Holder"), you are
hereby instructed to release from the Collateral Account [an equal Value of
[Preferred Securities or security entitlements thereto] [Senior Deferrable Notes
or security entitlements thereto]] relating to _____ PEPS Units of the Holder]
by Transfer to the Purchase Contract Agent.
THE CHASE MANHATTAN BANK
Dated:
-------------
By:
-----------------------------
Name:
Title:
<PAGE>
Please print name and address of Holder:
- -------------------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
- --------------------------------------
Address
- --------------------------------------
- --------------------------------------
<PAGE>
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of PEPS Units )
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Group
Telecopy: (212) 946-8159
Re: PEPS Units of UtiliCorp United Inc. (the "Company")
and UCU Capital Trust I
Please refer to the Pledge Agreement dated as of September _____, 1999
(the "Pledge Agreement"), among the Company, you, as Collateral Agent, The Chase
Manhattan Bank, as Securities Intermediary, and the undersigned, as Purchase
Contract Agent and as attorney-in-fact for the holders of PEPS Units from time
to time. Capitalized terms used herein but not defined shall have the meaning
set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute [$_______ Value of [Preferred Securities or security entitlements
thereto] [Senior Deferrable Notes 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] [Senior Deferrable Notes 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]
[Senior Deferrable Notes 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.
BANK ONE TRUST COMPANY, NA
Date: By:
------------ -------------------------------
Name:
Title:
<PAGE>
Please print name and address of Holder electing to substitute [Preferred
Securities or security entitlements thereto] [Pledged Senior Deferrable Notes 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 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.
(the "Company") and UCU Capital Trust I
Securities Account No. ________ entitled "The Chase Manhattan
Bank, 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,
Bank One Trust Company, NA, 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] [Senior Deferrable Notes 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.
BANK ONE TRUST COMPANY, NA.
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)
Bank One Trust Company, NA
One North State Street, Ninth Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
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"), by and among you, the Company, The Chase Manhattan
Bank, 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 fifth Business Day immediately
preceding November 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 CHASE MANHATTAN BANK
Date: By:
-------------- ---------------------------------
Name:
Title:
<PAGE>
Exhibit 4(o)
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF TRUST OF UCU CAPITAL TRUST I
THIS Certificate of Amendment of the Certificate of Trust of UCU Capital
Trust I (the "Trust"), dated September 21, 1999 is being duly executed and
filed by the undersigned trustees to amend a business trust formed under the
Delaware Business Trust Act (12 DEL.C. Section 3801, ET SEQ.).
1. NAME. The name of the business trust amended hereby is UCU Capital
Trust I.
2. AMENDMENT OF TRUST. The Certificate of Trust of the Trust is hereby
amended by changing the name and address of the Delaware Trustee from Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware, 19801,
Attention: Corporate Trust Administration to Bank One Delaware, Inc.,
Christiana Center, 201 North Walnut Street, Wilmington, Delaware 19801,
Attention: Legal Department/First USA.
3. EFFECTIVE DATE. This Certificate of Amendment shall be effective
upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being trustees of the Trust, have
executed this Certificate of Amendment as of the date first above written.
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee
By: /s/ Steven M. Wagner
-------------------------------------
Name: Steven M. Wagner
Title: Vice President
DALE J. WOLF, not in his individual
capacity but solely as trustee
/s/ Dale J. Wolf
-------------------------------------
