<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1999
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
DYNEGY INC. DYNEGY CAPITAL TRUST II
(Exact Name of Registrant as Specified in (Exact Name of Registrant as Specified in
its Charter) its Charter)
94-3248415 APPLIED FOR
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
DELAWARE DELAWARE
(State of incorporation) (State of organization)
1000 LOUISIANA, SUITE 5800 C/O DYNEGY INC.
HOUSTON, TEXAS 77002 1000 LOUISIANA, SUITE 5800
(713) 507-6400 HOUSTON, TEXAS 77002
(713) 507-6400
(Address, including zip code, and (Address, including zip code, and
telephone number, telephone number,
including area code, of Registrant's including area code, of Registrant's
principal executive office) principal executive office)
WITH A COPY TO:
KENNETH E. RANDOLPH, ESQ VINSON & ELKINS L.L.P.
SENIOR VICE PRESIDENT 1001 FANNIN, SUITE 2300
GENERAL COUNSEL AND SECRETARY HOUSTON, TEXAS 77002-6760
1000 LOUISIANA, SUITE 5800 ATTN: KEITH R. FULLENWEIDER, ESQ.
HOUSTON, TEXAS 77002 (713) 758-2838
(713) 507-6400 (713) 615-5855 (FAX)
(Name, address, including zip code,
and telephone number, including area code,
of agent for service)
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AGGREGATE REGISTRATION
TO BE REGISTERED OFFERING PRICE(1) FEE(2)
<S> <C> <C>
Debt Securities(3)...................................................................
Preferred Stock, par value $.01 per share(4)(5)......................................
Depositary Shares(5)................................................................. (6) (6)
Common Stock, par value $.01 per share(7)............................................
Warrants(8)..........................................................................
Trust Preferred Securities of Dynegy Capital Trust II(9).............................
Guarantees of Trust Preferred Securities of Dynegy...................................
Capital Trust II by Dynegy Inc.(10)..................................................
Trust Debentures(11).................................................................
Total................................................................................ $650,000,000 $180,700
</TABLE>
(NOTES CONTINUED ON NEXT PAGE)
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<PAGE>
(NOTES FROM PRECEDING PAGE)
(1) The proposed maximum aggregate offering price for the securities to be
offered by the Registrants has been estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(o) under the
Securities Act of 1933. Pursuant to Rule 429 under the Securities Act of
1933, the prospectus included in this Registration Statement is a combined
prospectus and relates to Registration Statement No. 333-60253 previously
filed by the Registrants on Form S-3 (the "Prior Registration Statement"),
pursuant to which an aggregate of $100,000,000 in securities remain to be
issued. The Prior Registration Statement is accordingly amended to reflect
the information contained herein.
(2) Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included in this Registration Statement also relates to the remaining
unsold securities having an aggregate initial offering price of
$100,000,000 which were previously registered by the Registrants under the
Prior Registration Statement.
(3) Subject to note (12) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrants. If any debt securities are issued at an
original issue discount, then the offering price shall be in the greater
principal amount as shall result in an aggregate initial offering price not
to exceed $650,000,000 less the dollar amount of any securities previously
issued hereunder.
(4) Subject to note (12) below, there is being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from time
to time, by the Registrants.
(5) Subject to note (12) below, there is being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. If the Registrants elect
to offer to the public fractional interests in shares of Preferred Stock
registered hereunder, Depositary Receipts will be distributed to those
persons purchasing the fractional interests and the shares of Preferred
Stock will be issued to the depositary under the Deposit Agreement.
(6) Not applicable pursuant to General Instruction II.D. of Form S-3.
(7) Subject to note (12) below, there is being registered hereunder an
indeterminate number of shares of Common Stock, as may be sold, from time
to time, by the Registrants. In addition, all shares of Common Stock that
may be issued upon conversion or redemption of Debt Securities, Preferred
Stock or Trust Preferred Securities registered hereunder, the number of
which is indeterminable at this time, are also being registered hereunder.
(8) Subject to note (12) below, there is being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Debt Securities, Preferred Stock or Depositary Shares registered
hereunder.
(9) Subject to note (12) below, there is being registered hereunder an
indeterminate amount and number of Trust Preferred Securities as may be
sold, from time to time by the Registrants.
(10) Subject to note (12) below, there is being registered hereunder an
indeterminate principal amount of Guarantees of Trust Preferred Securities
of Dynegy Capital Trust II by Dynegy Inc. No separate consideration will
be received for such Guarantee.
(11) Subject to note (12) below, there is being registered hereunder an
indeterminate principal amount of Trust Debentures of Dynegy Inc. The
Trust Debentures will be purchased by Dynegy Capital Trust II with the
proceeds from the sale of its Trust Preferred Securities.
(12) In no event will the aggregate initial offering price of all securities
issued from time to time by the Registrants pursuant to this Registration
Statement exceed $650,000,000 or the equivalent thereof in one or more
foreign currencies, foreign currency units, or composite currencies. The
aggregate amount of Common Stock to be sold by the Registrants and
registered hereunder is further limited to that which is permissible under
Rule 415 (a) (4) under the Securities Act of 1933. The securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
PROSPECTUS [LOGO]
DYNEGY INC.
$750,000,000
DEBT SECURITIES
TRUST DEBENTURES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
SECURITIES WARRANTS
DYNEGY CAPITAL TRUST II
TRUST PREFERRED SECURITIES
GUARANTEED BY DYNEGY INC.
------------------------
Dynegy Inc. may offer and sell, from time to time:
- unsecured debt securities, in one or more series, consisting of notes,
debentures or other evidences of indebtedness;
- debentures to be purchased by Dynegy Capital Trust II, a statutory
business trust created under the laws of the State of Delaware;
- shares of common stock, par value $0.01 per share;
- shares of preferred stock, par value $0.01 per share, in one or more
series, which may be issued in the form of depositary shares evidenced by
depositary receipts;
- securities warrants to purchase debt securities, preferred stock,
depositary shares or common stock; and
- a guarantee by Dynegy of preferred securities sold by Dynegy Capital Trust
II.
Dynegy Capital Trust II may offer and sell preferred securities representing
undivided beneficial interests in the assets of the trust.
The aggregate initial offering price of all of the securities which may be
sold pursuant to this prospectus will not exceed $750,000,000 or, if applicable,
an equivalent amount in any other currency. We will provide the specific terms
of the securities to be sold by us in supplements to this prospectus. You should
read this prospectus and any prospectus supplement carefully before you invest.
The common stock of Dynegy is listed on the New York Stock Exchange under
the symbol "DYN."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THIS PROSPECTUS IS DATED , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
About this Prospectus.................................................................. 2
Where You Can Find More Information.................................................... 2
Uncertainty of Forward-Looking Statements.............................................. 3
The Company............................................................................ 4
The Trust.............................................................................. 4
Use of Proceeds........................................................................ 5
Ratios of Earnings to Fixed Charges.................................................... 6
Description of Debt Securities......................................................... 7
Description of Preferred Securities.................................................... 20
Description of Trust Debentures........................................................ 33
Description of Guarantee............................................................... 42
Relationship Among the Preferred Securities, the Trust Debentures and the Guarantee.... 45
Description of Common Stock and Preferred Stock........................................ 47
Description of Depositary Shares....................................................... 51
Description of Securities Warrants..................................................... 53
Plan of Distribution................................................................... 54
Validity of Securities................................................................. 55
Experts................................................................................ 55
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of two registration statements that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf process, we may, over time, sell any combination of the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $750,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information."
In this prospectus, references to "Dynegy," "the Company," "we," "us," and
"our" mean Dynegy Inc.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our
filings with the SEC are also available at the office of the New York Stock
Exchange. For more information on obtaining copies of our public filings at the
New York Stock Exchange, you should call (212) 656-5060.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities described in this prospectus.
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- Our Annual Report on Form 10-K for the fiscal year ended December 31,
1998.
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999.
- Our Current Reports on Form 8-K, filed with the SEC on June 14, 1999, July
27, 1999, July 30, 1999 and August 4, 1999.
- The description of our common stock contained in our Registration
Statement on Form 8-A as filed with the SEC on March 14, 1995.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing)
at no cost, by writing or telephoning us at the following address:
Dynegy Inc.
1000 Louisiana, Suite 5800
Houston, Texas 77002
Attention: Investor Relations
(713) 507-6450
Our World Wide Web address is WWW.DYNEGY.COM. The information on our website
is not incorporated by reference into this prospectus. You should rely only on
the information incorporated by reference or provided by us in this prospectus
or any prospectus supplement. We have not authorized anyone else to provide you
with different information. We are only offering these securities in states
where the offer is permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
UNCERTAINTY OF FORWARD-LOOKING STATEMENTS
This prospectus, and the documents incorporated by reference in this
prospectus, contain various forward-looking statements and information that are
based on management's beliefs as well as assumptions made by and information
currently available to management. When used in this document, words such as
"anticipate," "estimate," "project," and "expect" are intended to identify
forward-looking statements. Although we believe that the expectations reflected
in such forward-looking statements are reasonable, we can give no assurance that
such expectations will prove to have been correct. Such statements are subject
to certain risks, uncertainties and assumptions. Should one or more of these
risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those anticipated, estimated,
projected or expected. Among the key risk factors that may have a direct bearing
on Dynegy's results of operations and financial condition are:
- competitive practices in the industries in which Dynegy competes;
- fluctuations in commodity prices for natural gas, electricity, natural gas
liquids, crude oil or coal;
- fluctuations in energy commodity prices which have not been properly
hedged or which are inconsistent with Dynegy's open position in its energy
marketing activities;
- operational and systems risks;
- environmental liabilities which are not covered by indemnity or insurance;
- software, hardware or third-party failures resulting from Year 2000
issues;
- general economic and capital market conditions, including fluctuations in
interest rates;
- the impact of current and future laws and governmental regulations
(particularly environmental regulations) affecting the energy industry in
general and Dynegy's operations in particular; and
- uncertainties relating to the pending Illinova business combination.
3
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THE COMPANY
We are a holding company and conduct substantially all of our business
through our subsidiaries. We are a leading provider of energy products and
services in North America and the United Kingdom. Products marketed by our
wholesale marketing operations include natural gas, electricity, coal, natural
gas liquids, crude oil, liquid petroleum gas and related services. Our wholesale
marketing operations are supported by ownership or control of an extensive asset
base and transportation network that includes unregulated power generation, gas
and liquids storage capacity, gas, power and liquids transportation capacity and
gas gathering, processing and fractionation assets. The critical mass achieved
through the combination of a large scale energy marketing operation and
strategically located assets affords us the ability to offer innovative,
value-creating energy solutions to our customers.
From inception of operations in 1984 until 1990, Natural Gas Clearinghouse
("Clearinghouse") limited its activities primarily to natural gas marketing.
Starting in 1990, Clearinghouse began expanding its core business operations
through acquisitions and strategic alliances resulting in the formation of a
mid-stream energy asset business and the establishment of energy marketing
operations in both Canada and the United Kingdom. We initiated electric power
marketing operations in February 1994 in order to exploit opportunities created
by the deregulation of the domestic electric power industry. Effective March 1,
1995, Clearinghouse and Trident NGL Holding, Inc. ("Holding"), a fully
integrated natural gas liquids company, combined and Holding was renamed NGC
Corporation ("NGC"). On August 31, 1996, NGC completed a strategic combination
with Chevron U.S.A. Inc. and certain Chevron affiliates (collectively "Chevron")
whereby substantially all of Chevron's mid-stream assets were merged with NGC.
Effective July 1, 1997, NGC acquired Destec Energy, Inc., a leading independent
power producer. In July 1998, we changed our name to Dynegy Inc. in order to
reflect our evolution from a natural gas marketing company to an energy services
company capable of meeting the growing demands and diverse challenges of the
dynamic energy market of the 21st Century.
On June 14, 1999, Dynegy and Illinova Corporation, an Illinois corporation
("Illinova"), agreed to combine in a transaction in which each of Dynegy and
Illinova will become wholly-owned subsidiaries of a newly established parent
company. On October 11, 1999, the stockholders of Dynegy and Illinova approved
the transaction, which is expected to close in the first quarter of 2000. The
terms and conditions relating to the business combination are set forth in our
Current Report on Form 8-K filed with the SEC on June 14, 1999.
Our principal executive office is located at 1000 Louisiana, Suite 5800,
Houston, Texas 77002, and the telephone number of that office is (713) 507-6400.
THE TRUST
The trust is a statutory business trust created under Delaware law through
the filing of a certificate of trust with the Delaware Secretary of State on
July 15, 1998. A certificate of amendment to the certificate of trust was filed
with the Delaware Secretary of State on September 27, 1999 to reflect a change
to the name and business address of the Delaware trustee. The trust's business
is defined in a declaration of trust, dated as of July 15, 1998, executed by the
Company, as sponsor, and the trustees. The declaration will be amended and
restated in its entirety as of the date preferred securities of the trust are
initially issued. The declaration, as amended and restated, is referred to in
this prospectus as the trust agreement. The trust agreement will be qualified
under the Trust Indenture Act of 1939.
The trust exists for the exclusive purposes of:
- issuing and selling the preferred securities and common securities;
- using the proceeds from the sale of the preferred securities and common
securities to acquire the trust debentures; and
4
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- engaging in only those other activities necessary or incidental to these
purposes.
The trust debentures will be the sole assets of the trust. Accordingly,
payments on the trust debentures will be the sole revenues of the trust. The
trust has a term of 35 years, but may dissolve earlier as provided in the trust
agreement.
Dynegy will, directly or indirectly, acquire all of the common securities of
the trust, which will have an aggregate liquidation amount equal to at least 3%
of the total capital of the trust.
The trust's business and affairs will be conducted by its trustees, as set
forth in the trust agreement. At the time of the issuance of the preferred
securities, the trustees for the trust will be initially Bank One Trust Company,
NA, as the property trustee, Bank One Delaware, Inc., as the Delaware trustee,
and three individual trustees, referred to in this prospectus as the
administrative trustees, who are officers of the Company. The property trustee
and the Delaware trustee, together with the administrative trustees, are
collectively referred to as the trustees in this prospectus. The property
trustee will act as sole indenture trustee under the trust agreement and will
also act as indenture trustee under the guarantee and the debenture indenture.
See "Description of Guarantee" and "Description of Trust Debentures." The holder
of the common securities of the trust or, if an event of default under the trust
agreement has occurred and is continuing, the holders of not less than a
majority in liquidation amount of the preferred securities, will be entitled to
appoint, remove or replace the property trustee and the Delaware trustee. In no
event will the holders of the preferred securities have the right to vote to
appoint, remove or replace the administrative trustees. Such voting rights will
be vested exclusively in the holder of the common securities of the trust.
For so long as the preferred securities remain outstanding, Dynegy will:
- maintain directly or indirectly 100% ownership of the common securities;
- use its reasonable efforts 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 the trust agreement;
- use its reasonable efforts to ensure that the trust will not be an
"investment company" for purposes of the Investment Company Act of 1940;
- use its reasonable efforts to cause the trust to continue to be treated as
a grantor trust and not an association taxable as a corporation for United
States federal income tax purposes; and
- use its reasonable efforts to cause each holder of common securities or
preferred securities of the trust to be treated as owning an undivided
beneficial interest in the trust debentures.
The rights of the holders of the preferred securities are set forth in the
trust agreement and the Delaware Business Trust Act. The location of the
principal executive office of the trust is c/o Dynegy Inc., 1000 Louisiana,
Suite 5800, Houston, Texas 77002, and its telephone number is 713-507-6400.
USE OF PROCEEDS
Except as may otherwise be described in any prospectus supplement relating
to an offering of securities, the net proceeds from the sale of the securities,
including trust debentures issued to the trust in connection with the investment
by the trust of all of the proceeds from its sale of preferred securities, will
be used by Dynegy for general corporate purposes. Any allocation of the net
proceeds of an offering of securities to a specific purpose will be determined
at the time of such offering and will be described in a prospectus supplement.
5
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RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth Dynegy's consolidated ratios of earnings to
fixed charges for the periods shown.
<TABLE>
<CAPTION>
DYNEGY, INC. NATURAL GAS
- --------------------------------------------------------------------------------------------- CLEARINGHOUSE
YEARS ENDED DECEMBER 31, -----------------
SIX MONTHS ENDED -------------------------------------------------------------------------- YEAR ENDED
JUNE 30, 1999 1998 1997 1996 1995 DECEMBER 31, 1994
- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C>
1.90 2.22 (a) 4.07 2.48(b) 13.08
</TABLE>
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(a) Earnings were inadequate to cover fixed charges for the year ended December
31, 1997, by approximately $72.9 million.
(b) The computation for 1995 includes the consolidated results of Natural Gas
Clearinghouse and its subsidiaries for the full year, and of Trident NGL
Holding, Inc. and its subsidiaries from March 1, 1995, the effective date of
the merger between Natural Gas Clearinghouse and Trident NGL Holding, Inc.
For purposes of calculating the ratio of earnings to fixed charges, earnings
consist of income before income taxes and fixed charges (excluding capitalized
interest and depreciation of interest previously capitalized) less undistributed
income from equity investees. Fixed charges consist of (i) interest expense,
(ii) amortization of deferred financing costs, (iii) interest capitalized during
the year and (iv) the portion of lease rental expense representative of the
interest factor attributable to such leases. The ratio of earnings to fixed
charges for the six months ended June 30, 1999 is not necessarily indicative of
such ratio that would be expected for the full year ending December 31, 1999.
6
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DESCRIPTION OF DEBT SECURITIES
The debt securities will constitute either senior or subordinated debt of
the Company. Senior debt securities will be issued under a senior debt indenture
dated as of September 26, 1996, as amended and restated as of March 23, 1998,
between Dynegy and Bank One Trust Company, NA (formerly The First National Bank
of Chicago) as trustee. Subordinated debt securities will be issued under a
subordinated debt indenture dated as of July 17, 1998, between Dynegy and Bank
One Trust Company, NA (formerly The First National Bank of Chicago), as trustee.
The senior debt indenture and the subordinated debt indenture are sometimes
collectively referred to in this prospectus as the indentures.
The following description is a summary of selected provisions relating to
the debt securities and the indenture. The summary is not complete. We have
filed forms of the senior debt indenture and the subordinated debt indenture as
exhibits to the registration statements of which this prospectus is a part. You
should not rely on this summary, because the indentures and not this summary
define your rights as a holder of the debt securities. When debt securities are
offered in the future, a prospectus supplement will explain the particular terms
of those securities and the extent to which these general provisions may apply.
The Company's trust debentures are separately described in this prospectus
under the caption "Description of Trust Debentures."
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
GENERAL. The debt securities will represent our unsecured senior or
subordinated obligations and may be issued from time to time in one or more
series. The indentures do not limit the amount of debt securities, debentures,
notes or other types of indebtedness that we or any of our subsidiaries may
issue nor do they restrict transactions between us and our affiliates or the
payment of dividends or other distributions by us to our stockholders. In
addition, other than as may be set forth in any prospectus supplement and, in
the case of the senior debt indenture, other than as set forth under
"--Limitation on Liens," the indentures do not and the debt securities will not
contain any covenants or other provisions that are intended to afford holders of
the debt securities special protection in the event of either a change of
control or a highly leveraged transaction involving the Company.
A prospectus supplement and a supplemental indenture relating to any series
of debt securities offered by the Company will include specific terms relating
to the offering. These terms will include some or all of the following:
- the title and classification of the debt securities;
- any rights of the holders of the subordinated debt securities to convert
the subordinated debt securities into common stock and the terms and
conditions governing such conversion or exchange;
- any limit on the total principal amount of the debt securities;
- the price or prices at which the debt securities will be issued;
- whether the debt securities are to be issuable as registered securities or
bearer securities or both;
- whether any of the debt securities are to be issuable initially in
temporary global form or permanent global form;
- the dates on which the debt securities will mature;
- the interest rate or the method for determining the rate that the debt
securities will bear and the date from which any interest will accrue;
7
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- the interest payment dates for the debt securities;
- any mandatory or optional sinking fund or analogous provisions;
- the place where we will pay, or the method of payment of, principal,
premium and interest on the debt securities;
- any optional redemption periods and prices;
- the denominations in which we will issue the debt securities that are
registered securities, if other than $1,000 and any integral multiple
thereof, and the denominations in which we will issue the debt securities
that are bearer securities, if other than $5,000 and any integral multiple
thereof;
- the currency or currencies in which we will pay principal, premium and
interest on the debt securities;
- the manner in which we will determine the amounts of principal, premium or
interest payments on the debt securities if these amounts may be
determined by reference to an index or based on a formula;
- information with respect to book-entry procedures, if any; and
- any other terms of the debt securities not inconsistent with the
indentures.
We may issue debt securities at a discount below their stated principal
amount. Even if we do not issue the debt securities below their stated principal
amount, for United States federal income tax purposes the debt securities may be
deemed to have been issued with a discount because of certain interest payment
characteristics. We will describe in a prospectus supplement the United States
federal income tax considerations applicable to debt securities issued at a
discount or deemed to be issued at a discount. We will also describe in a
prospectus supplement the special United States federal income tax
considerations or other restrictions or terms applicable to debt securities
issuable in bearer form, offered exclusively to foreigners or denominated in a
foreign currency.
The debt securities will represent our general unsecured obligations. Since
the Company is a holding company, its ability to meet its obligations under the
indentures and the debt securities will be dependent on the earnings and cash
flows of its subsidiaries and the ability of its subsidiaries to pay dividends
or to advance funds to the Company.
FORM, EXCHANGE, REGISTRATION AND TRANSFER. Debt securities of a series may
be issuable in definitive form solely as registered securities, solely as bearer
securities or as both. Unless otherwise indicated in a prospectus supplement,
bearer securities will have interest coupons attached. The indentures also
provide that debt securities of a series may be issuable in temporary or
permanent global form.
Registered securities of any series will be exchangeable for other
registered securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if debt securities of
any series are issuable as both registered securities and bearer securities, the
holder of such securities may at its option, subject to the terms of the
applicable indenture, exchange bearer securities of such series for registered
securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. Bearer securities surrendered in exchange
for registered securities between a regular record date or a special record date
and the relevant date for payment of interest will be surrendered without the
coupon, relating to such date for payment of interest. Interest accrued as of
such date will not be payable on the registered security issued in exchange for
such bearer security, but will be payable only to the holders of such coupon,
when due in accordance with the terms of the applicable indenture. Bearer
securities will not be issued in exchange for registered securities.
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Registered securities may be presented for registration of transfer at the
office of the registrar or at the office of any transfer agent designated by the
Company for such purpose. Such transfer or exchange will be effected once the
registrar or transfer agent, as the case may be, is satisfied with the documents
of title and identity of the person making the request. The Company has
appointed the trustee as registrar. The Company may at any time rescind the
designation of any transfer agent or approve a change in the location through
which any transfer agent acts. However, if debt securities of a series are
issuable solely as registered securities, the Company will be required to
maintain a transfer agent in each place of payment for such series and, if debt
securities of a series are issuable as bearer securities, the Company will be
required to maintain (in addition to the registrar) a transfer agent in a place
of payment for such series located outside the United States. The Company may at
any time designate additional transfer agents with respect to any series of debt
securities.
In the event of any redemption in part, the Company will not be required to:
- issue, register the transfer of or exchange debt securities of any series
during a period beginning at the opening of business 15 days prior to the
selection of debt securities of that series for redemption and ending on
the close of business on:
- if debt securities of the series are issuable only as registered
securities, the day of mailing of the relevant notice of redemption;
and
- if debt securities of the series are issuable as bearer securities, the
day of the first publication of the relevant notice of redemption or,
if debt securities of the series are also issuable as registered
securities and there is no publication, the mailing of the relevant
notice of redemption;
- register the transfer of or exchange of any registered security, or
portion thereof, called for redemption, except the unredeemed portion of
any registered security being redeemed in part; or
- exchange any bearer security called for redemption, except to exchange
such bearer security for a registered security of that series and like
tenor which is immediately surrendered for redemption.
PAYMENT AND PAYING AGENTS. Unless otherwise indicated in an applicable
prospectus supplement,
- payment of principal of, and any premium and interest on, bearer
securities will be payable at the offices of paying agents outside the
United States as the Company may designate from time to time; and
- payment of interest on bearer securities on any interest payment date will
be made only against surrender to the paying agent of the coupon relating
to such interest payment date.
Payment with respect to any bearer security will not be made at any office or
agency of the Company in the United States, by check mailed to any address in
the United States or by transfer to an account maintained with a bank located in
the United States. Notwithstanding the preceding, payments of principal of, and
any premium and interest on, bearer securities denominated and payable in U.S.
dollars will be made at the offices of the Company's paying agent in the Borough
of Manhattan, the City of New York, if (but only if) payment of the full amount
thereof in U.S. dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions.
Unless otherwise indicated in a prospectus supplement, payment of principal
of, and any premium and interest on, registered securities will be made at the
office of the paying agent designated by the Company from time to time. However,
the Company may, at its option, make interest payments on registered securities
by check mailed to the address of the person entitled thereto as such address
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appears in the security register. Payment of any installment of interest on
registered securities will be made to the person in whose name such registered
security is registered at the close of business on the regular record date for
payment of such interest.
Any paying agents outside the United States and any other paying agents in
the United States initially designated by the Company for the debt securities
will be named in a prospectus supplement. The Company may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts, except that:
- if debt securities of a series are issuable solely as registered
securities, the Company will be required to maintain a paying agent in
each place of payment for such series; and
- if debt securities of a series are issuable as bearer securities, the
Company will be required to maintain
- a paying agent in the Borough of Manhattan, the City of New York, for
principal payments with respect to any registered securities of the
series; and
- a paying agent in a place of payment located outside the United States
where debt securities of such series and any related coupons may be
presented and surrendered for payment.
All monies paid by the Company to a paying agent for the payment of principal
of, or any premium or interest on, any debt security which remain unclaimed at
the end of two years after such amounts have become due and payable will be
repaid to the Company. Following the repayment of such monies to the Company,
the holder of a debt security or any coupon may look only to the Company for
payment.
GLOBAL DEBT SECURITIES. Debt securities of a series may be issued in whole
or in part in the form of one or more global debt securities that will be
deposited with, or on behalf of, a depository identified in the prospectus
supplement relating to such series. Global debt securities may be issued in
either registered or bearer form and in either temporary or permanent form.
Unless and until it is exchanged for the individual debt securities it
represents, a global debt security may only be transferred as a whole by the
depository for such global debt security to a nominee of such depository or by a
nominee of such depository to such depository or another nominee of such
depository or by the depository or any nominee to a successor depository or any
nominee of such successor.
The specific terms of the depository arrangement with respect to a series of
debt securities and certain limitations and restrictions relating to a series of
bearer securities in the form of one or more global debt securities will be
described in the prospectus supplement relating to such series.
EVENTS OF DEFAULT. Any one of the following events will constitute an event
of default under the indentures with respect to the debt securities of any
series:
- failure to pay any interest on any debt security of that series when due
for 30 days;
- failure to pay principal of, or any premium on, any debt security of that
series when due;
- failure to deposit any sinking fund payment when due in respect of that
series;
- failure to perform any other covenant with respect to that series in such
indenture for 90 days after written notice;
- certain events in bankruptcy, insolvency or reorganization involving the
Company; and
- any other event of default included in the indenture or any supplemental
indenture with respect to debt securities of that series.
If an event of default with respect to debt securities of any series occurs
and is continuing, either the trustee or the holders of at least 25% in
aggregate principal amount of the outstanding securities of that series, by
notice as provided in the applicable indenture, may declare the principal amount
of all
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the debt securities of that series to be due and payable immediately. At any
time after a declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree for payment of money has
been obtained by the trustee, the holders of a majority in aggregate principal
amount of the outstanding securities of that series may, under certain
circumstances, rescind and annul such acceleration.
Each indenture provides that, subject to the duty of the trustee during
default to act with the required standard of care, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the
request or direction of any of the holders, unless such holders have offered the
trustee reasonable indemnity. Subject to such provisions for the indemnification
of the trustee, the holders of a majority in aggregate principal amount of the
outstanding securities of any series have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the
debt securities of that series. However, the trustee is not obligated to take
any action unduly prejudicial to holders not joining in such direction or
subjecting the debt trustee to personal liability.
The Company is required to furnish to the trustee annually a statement as to
the performance by the Company of its obligations under each indenture and as to
any default in performance under the indentures.
DEFEASANCE. If so specified with respect to any series of debt securities,
the Company may discharge its indebtedness and its obligations under the
indenture governing such series by depositing money or U.S. government
obligations with the trustee.
DEFEASANCE AND DISCHARGE. Each indenture provides that, if so specified
with respect to any series of debt securities, the Company will be discharged
from its obligations in respect of the debt securities of such series upon the
deposit with the trustee, in trust, of money and/or U.S. government obligations
in an amount sufficient to pay the principal of, and premium, if any, and each
installment of interest on, the debt securities of such series on the stated
maturity of such payments.
The Company may establish a trust to defease and discharge its obligations,
only if, among other things, it has delivered to the trustee an opinion of
counsel to the effect that:
- the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or
- since the date of the indenture there has been a change in applicable
federal income tax law;
in either case to the effect that the holders of the debt securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge. The opinion must also provide that the
holders of the debt securities will be subject to federal income tax on the same
amounts and in the same manner as would have been the case if such deposit,
defeasance and discharge had not occurred. In the event of any such defeasance
and discharge, holders of debt securities of such series will be entitled to
look only to such trust fund for payment of principal of, and any premium and
any interest on their debt securities until maturity.
COVENANT DEFEASANCE. Each indenture provides that, if so specified with
respect to any series of debt securities, the Company may omit to comply with
certain restrictive covenants, including, in the case of the senior debt
indenture, the covenant described under "--Limitation on Liens"' below, but
excluding, in the case of the subordinated debt indenture, any applicable
obligation of the Company respecting the conversion of debt securities of such
series into common stock. Any such omission will not be an event of default with
respect to the debt securities of such series, upon the deposit with the
trustee, in trust, of money and/or U.S. government obligations in an amount
sufficient to pay the principal of, and premium, if any, and each installment of
interest on, the debt securities of such series on the stated maturity of such
payments. The other obligations of the Company will remain in full
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force and effect. Such a trust may be established only if, among other things,
the Company has delivered to the trustee an opinion of counsel to the effect
that the holders of the debt securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and covenant defeasance. The opinion must also provide that holders of the debt
securities will be subject to federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if such deposit
and defeasance had not occurred.
FEDERAL INCOME TAX CONSEQUENCES RELATING TO DEFEASANCE AND COVENANT
DEFEASANCE. Under current United States federal income tax law, defeasance and
discharge would likely be treated as a taxable exchange of debt securities to be
defeased for an interest in the defeasance trust. As a consequence, a holder
would recognize gain or loss equal to the difference between the holder's cost
or other tax basis for such debt securities and the value of the holder's
interest in the defeasance trust, and thereafter would be required to include in
income a share of the income, gain or loss of the defeasance trust. Under
current United States federal income tax law, covenant defeasance would
ordinarily not be treated as a taxable exchange of such debt securities.
MODIFICATION AND WAIVER. With the consent of the holders of a majority in
aggregate principal amount of the outstanding debt securities of each series
affected, the Company and the trustee may modify or amend either indenture.
However, any modification or amendment may not, without the consent of each
holder affected by such modification or amendment:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
- change the redemption date with respect to any debt security;
- reduce the principal amount of, or premium or interest on, any debt
security;
- change any obligation of the Company to pay additional amounts;
- reduce the amount of principal of an original issue discount security
payable upon acceleration of the maturity thereof;
- change the coin or currency in which any debt security or any premium or
interest thereon is payable;
- change the redemption right of any holder;
- impair the right to institute suit for the enforcement of any payment on
or with respect to any debt security or any conversion right with respect
to any debt security;
- reduce the percentage in principal amount of outstanding securities of any
series, the consent of whose holders is required to modify or amend such
indenture or to waive compliance with certain provisions of such indenture
or to waive certain defaults;
- reduce the requirements contained in such indenture for quorum or voting;
- change any obligation of the Company to maintain an office or agency in
the places and for the purposes required by such indenture;
- adversely affect the right to convert subordinated debt securities; or
- modify any of the above provisions.
The subordinated debt indenture may not be amended to alter the
subordination of any outstanding subordinated debt securities without the
consent of each holder of Senior Indebtedness (as defined below) then
outstanding that would be adversely affected by such an amendment.
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The holders of a majority in aggregate principal amount of the outstanding
debt securities of each series may, on behalf of the holders of all debt
securities of that series, waive compliance by the Company with certain
restrictive provisions of the indenture under which such series has been issued.
The holders of a majority in aggregate principal amount of the outstanding debt
securities of each series may, on behalf of all holders of debt securities of
that series, waive any past default under the applicable indenture with respect
to any debt securities of that series, except a default:
- in the payment of principal of, or premium, if any, or any interest on,
any debt security of such series; or
- in respect of a covenant or provision of such indenture which cannot be
modified or amended without the consent of the holder of each outstanding
security of such series affected.
Each indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding debt securities have given any
request, demand, authorization, direction, notice, consent or waiver under the
indenture, or are present at a meeting of the holders of debt securities for
quorum purposes:
- the principal amount of an original issue discount security that is deemed
to be outstanding will equal the amount of the principal that would be due
and payable as of the date of such determination upon acceleration of the
maturity of such debt security; and
- the principal amount of a debt security denominated in a foreign currency
or currency units will equal the U.S. dollar equivalent, determined on the
date of original issuance of such debt security, of the principal amount
of such debt security or, in the case of an original issue discount
security, the U.S. dollar equivalent, determined on the date of original
issuance of such debt security, of the amount determined as provided in
the preceding bullet point.
MEETINGS. Each indenture contains provisions for convening meetings of the
holders of debt securities of a series issuable as bearer securities. A meeting
may be called at any time by the trustee, and also, upon request by the Company
or the holders of at least 10% in aggregate principal amount of the outstanding
debt securities of that series, in any such case upon notice given in accordance
with the provisions described under "--Notices" below. Except for any consent
which must be given by the holders of each outstanding debt security affected,
any resolution presented at a meeting may be adopted by the affirmative vote of
the holders of a majority in aggregate principal amount of the outstanding debt
securities of that series. Except for any consent or waiver that must be given
by the holder of each outstanding security, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which may be made, given or taken by the holders of less than a majority
in aggregate principal amount of the outstanding debt securities of a series may
be adopted at a meeting or adjourned meeting duly reconvened at which a quorum
is present by the affirmative vote of such specified percentage in aggregate
principal amount of the outstanding debt securities of that series. Any
resolution passed or decision taken at any meeting of holders of debt securities
of any series duly held in accordance with the applicable indenture will be
binding on all holders of debt securities of that series and related coupons.
The quorum at any meeting, and at any reconvened meeting, will be persons
holding or representing a majority in aggregate principal amount of the
outstanding securities of a series.
CONSOLIDATION, MERGER AND SALE OF ASSETS. The Company, without the consent
of the holders of any of the outstanding debt securities under either indenture,
may consolidate with or merge into, or convey, transfer or lease its properties
and assets substantially as an entirety to, any other corporation, partnership
or trust organized and validly existing under the laws of any domestic
jurisdiction, provided that:
- any successor person assumes the Company's obligations on the debt
securities under such indenture;
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- after giving effect to the transaction no event of default has occurred
and is continuing;
- and certain other procedural conditions are met.
NOTICES. Except as otherwise provided in the indentures, notices to holders
of bearer securities will be given by publication at least twice in a daily
newspaper in The City of New York and in such other city or cities as may be
specified in such bearer securities. Notices to holders of registered securities
will be given by mail to the addresses of such holders as they appear in the
register.
TITLE. Title to any bearer securities and any related coupons will pass by
delivery. The Company, the trustee and any agent of the Company or the trustee
may treat the bearer of any bearer security and the bearer of any coupon and the
registered owner of any registered security as the owner thereof for all
purposes.
REPLACEMENT OF SECURITIES. Any mutilated debt security or a debt security
with a mutilated coupon will be replaced by the Company at the expense of the
holder upon surrender of such debt security to the trustee. Debt securities or
coupons that become destroyed, stolen or lost will be replaced by the Company at
the expense of the holder upon delivery to the trustee of the debt security and
coupons or evidence of destruction, loss or theft satisfactory to the Company
and the trustee. In the case of any coupon which becomes destroyed, stolen or
lost, such coupon will be replaced by issuance of a new debt security in
exchange for the debt security to which such coupon relates. In the case of a
destroyed, lost or stolen debt security or coupon, the holder of such debt
security or coupon may be required to provide indemnity satisfactory to the
trustee and the Company before a replacement debt security will be issued.
GOVERNING LAW. The indentures, the debt securities and coupons will be
governed by, and construed in accordance with, the laws of the State of New
York.
REGARDING THE TRUSTEE. The Company and certain of its subsidiaries from
time to time borrow money from, and maintain deposit accounts and conduct
certain banking transactions with, Bank One, National Association in the
ordinary course of their business. Bank One, National Association also serves as
agent and is a lender under the Company's bank credit facility.
The indentures contain certain limitations on the right of the trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. The trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest, it must eliminate such conflict or resign.
Pursuant to the Trust Indenture Act of 1939, should a default occur with
respect to either the senior debt securities or the subordinated debt
securities, Bank One Trust Company, NA would be required to resign as trustee
under one of the indentures within 90 days of such default unless such default
were cured, duly waived or otherwise eliminated.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
GENERAL. Senior debt securities will be issued under the senior debt
indenture. Each series of senior debt securities will rank equally as to the
right of payment of principal and any premium and interest with each other
series issued under the senior debt indenture and will rank senior to all
subordinated debt securities that may be issued.
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CERTAIN DEFINITIONS.
"Net Tangible Assets" means the total amount of assets appearing on a
consolidated balance sheet of the Company and its Subsidiaries less, without
duplication:
- total current liabilities (excluding current maturities of long-term debt
and preferred stock);
- all reserves for depreciation and other asset valuation reserves;
- all intangible assets such as goodwill, trademarks, trade names, patents
and unamortized debt discount and expense carried as an asset; and
- all appropriate adjustments on account of minority interests of other
persons holding common stock in any Subsidiary.
"Principal Property" means any natural gas, natural gas liquids or crude oil
pipeline, distribution system, gathering system, storage facility or processing
plant, except any such property that in the opinion of the Board of Directors of
the Company is not of material importance to the business conducted by the
Company and its consolidated Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary which owns a Principal Property.
"Subsidiary" of a Person means:
- any corporation more than 50% of the outstanding securities having
ordinary voting power of which is owned, directly or indirectly, by such
person or by one or more of its Subsidiaries, or by such person and one or
more of its Subsidiaries; or
- any partnership or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the
time be so owned.
For the purposes of this definition, "securities having ordinary voting power"
means securities or other equity interests which ordinarily have voting power
for the election of directors, or persons having management power with respect
to the person, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.
LIMITATION ON LIENS. The senior debt indenture provides that the Company
will not, and will not permit any Principal Subsidiary to, issue, assume or
guarantee any indebtedness for money borrowed ("Debt") if such Debt is secured
by a mortgage, pledge, security interest or lien (a "mortgage" or "mortgages")
upon any Principal Property of the Company or any Principal Subsidiary or upon
any shares of stock or indebtedness of any Principal Subsidiary (whether such
Principal Property, shares of stock or indebtedness is now owned or hereafter
acquired) without in any such case effectively providing that the senior debt
securities shall be secured equally and ratably with (or prior to) such Debt,
except that the foregoing restrictions will not apply to:
- mortgages on any property acquired, constructed or improved by the Company
or any Principal Subsidiary after the date of the senior debt indenture
which are created within 180 days after such acquisition (or in the case
of property constructed or improved, after the completion and commencement
of commercial operation of such property, whichever is later) to secure or
provide for the payment of the purchase price or cost thereof; PROVIDED
that in the case of such construction or improvement the mortgages shall
not apply to any property theretofore owned by the Company or any
Principal Subsidiary other than theretofore unimproved real property;
- existing mortgages on property acquired (including mortgages on any
property acquired from a person which is consolidated with or merged with
or into the Company or a Subsidiary) or mortgages outstanding at the time
any corporation, partnership or trust becomes a Subsidiary that are not
incurred in connection with such entity becoming a Subsidiary;
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- mortgages in favor of domestic or foreign governmental bodies to secure
advances or other payments pursuant to any contract or statute or to
secure indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to such mortgages,
including mortgages to secure Debt of the pollution control or industrial
revenue bond type;
- mortgages in favor of the Company or any Principal Subsidiary;
- mortgages on any Principal Property held, leased or used by the Company or
any Principal Subsidiary in connection with the exploration for,
development of or production of (but not the gathering, processing,
transportation or marketing of) natural gas, oil or other minerals; or
- any extension, renewal or replacement (or successive extensions, renewals
or replacements), in whole or in part, of any mortgage referred to in the
preceding bullet points.
Notwithstanding the preceding, the Company and any Principal Subsidiary may,
without securing the senior debt securities, issue, assume or guarantee secured
Debt (which would otherwise be subject to the foregoing restrictions) in an
aggregate amount which, together with all other such Debt, does not exceed 15%
of the Net Tangible Assets, as shown on a consolidated balance sheet, prepared
by the Company in accordance with generally accepted accounting principles, as
of a date not more than 90 days prior to the proposed transaction.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
SUBORDINATION. The subordinated debt securities will be subordinate and
junior in right of payment, to the extent set forth in the subordinated debt
indenture, to all Senior Indebtedness (as defined below) of the Company.
"Indebtedness" is defined in the subordinated debt indenture as, with
respect to any person, (a) all liabilities and obligations, contingent or
otherwise, of any such person, (i) in respect of borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such person or only
to a portion thereof), (ii) evidenced by bonds, notes, debentures or similar
instruments, (iii) representing the balance deferred and unpaid of the purchase
price of any property or services, except such as would constitute trade
payables to trade creditors in the ordinary course of business, (iv) evidenced
by bankers' acceptances or similar instruments issued or accepted by banks, (v)
for the payment of money relating to a capitalized lease obligation, or (vi)
evidenced by a letter of credit or a reimbursement obligation of such person
with respect to any letter of credit; (b) all net obligations of such person
under interest swap and hedging obligations; (c) all liabilities of others of
the kind described in the preceding clause (a) or (b) that such person has
guaranteed or that is otherwise its legal liability and all obligations to
purchase, redeem or acquire any capital stock and (d) any and all deferrals,
renewals, extensions, refinancings, refundings (whether direct or indirect) of
any liability of the kind described in any of the preceding clause (a), (b) or
(c), or this clause (d), whether or not between or among the same parties.
"Junior Security" is defined in the subordinated debt indenture as any
qualified capital stock of any person and any Indebtedness of such person that
is subordinated in right of payment to the securities of each series then
outstanding and has no scheduled installment of principal due, by redemption,
sinking fund payment or otherwise, on or prior to the latest stated maturity of
the principal of any outstanding securities.
"Senior Indebtedness" is defined in the subordinated debt indenture as
Indebtedness (as defined below) of the Company, whether outstanding on the date
of the subordinated debt indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company, unless the instrument
creating or evidencing such Indebtedness provides that such Indebtedness is not
senior or superior, in right of payment, to the subordinated debt securities or
to other Indebtedness which ranks equally with, or is subordinated to, the
subordinated debt securities; PROVIDED, HOWEVER, that in no event
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will Senior Indebtedness include (a) Indebtedness of the Company owed or owing
to any Subsidiary of the Company or any officer, director or employee of the
Company or any Subsidiary of the Company except in respect of deferred
compensation in an amount not to exceed $10,000,000 at any one time, (b)
Indebtedness to trade creditors, (c) any liability for taxes owed or owing by
the Company and (d) the subordinated debt securities.
The subordinated debt indenture provides that no payment may be made by the
Company on account of the principal of or any premium or interest on the
subordinated debt securities, or to acquire any of the subordinated debt
securities (including repurchases of subordinated debt securities at the option
of the holders) for cash or property (other than Junior Securities), or on
account of any redemption provisions of the subordinated debt securities:
- upon the maturity of any Senior Indebtedness of the Company by lapse of
time, acceleration (unless waived) or otherwise, unless and until all
principal of and any premium and interest on such Senior Indebtedness are
first paid in full (or such payment is duly provided for); or
- in the event of default in the payment of any principal of or any premium
or interest on any Senior Indebtedness when it becomes due and payable,
whether at stated maturity or at a date fixed for prepayment or by
declaration or otherwise (a "Payment Default"), unless and until such
Payment Default has been cured or waived or otherwise has ceased to exist.
Upon (i) the happening of an event of default (other than a Payment Default)
that permits the holders of Senior Indebtedness or their representative
immediately to accelerate its maturity and (ii) written notice of such event of
default given to the Company and the trustee by the holders of at least 25% in
the aggregate principal amount outstanding of such Senior Indebtedness or their
representative (a "Payment Notice"), then, unless and until such event of
default has been cured or waived or otherwise has ceased to exist, no payment
(by set off or otherwise) may be made by or on behalf of the Company on account
of the principal of or any premium or interest on the subordinated debt
securities, or to acquire or repurchase any of the subordinated debt securities
for cash or property, or on account of any redemption provisions of the
subordinated debt securities, in any such case other than payments made with
Junior Securities of the Company. Notwithstanding the preceding, unless (i) the
Senior Indebtedness in respect of which such event of default exists has been
declared due and payable in its entirety within 179 days after the Payment
Notice is delivered as set forth above (the "Payment Blockage Period"), and (ii)
such declaration has not been rescinded or waived, at the end of the Payment
Blockage Period, the Company will be required to pay all sums not paid to the
holders of the subordinated debt securities during the Payment Blockage Period
due to the foregoing prohibitions and to resume all other payments as and when
due on the subordinated debt securities. Any number of Payment Notices may be
given; PROVIDED, HOWEVER, that (i) not more than one Payment Notice shall be
given within a period of any 360 consecutive days and (ii) no event of default
that existed upon the date of such Payment Notice or the commencement of such
Payment Blockage Period (whether or not such event of default is on the same
issue of Senior Indebtedness) will be made the basis for the commencement of any
other Payment Blockage Period.
Upon any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization of the Company, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or a similar proceeding or
upon assignment for the benefit of creditors or any marshaling of assets or
liabilities, (i) the holders of all Senior Indebtedness will first be entitled
to receive payment in full (or have such payment duly provided for) before the
holders are of subordinated debt securities entitled to receive any payment on
account of the principal of or any premium or interest on the subordinated debt
securities (other than Junior Securities) and (ii) any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities (other than Junior Securities) to which the holders of subordinated
debt securities or the trustee on behalf of such holders would be entitled (by
set off or otherwise), except for the subordination provisions contained in the
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subordinated debt indenture, will be paid by the liquidating trustee or agent or
other person making such a payment or distribution directly to the holders of
subordinated debt securities of Senior Indebtedness or their representative to
the extent necessary to make payment in full of all such Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness.
In the event that, notwithstanding the preceding, any payment or
distribution of assets of the Company (other than Junior Securities) is received
by the trustee or the holders of subordinated debt securities at a time when
such payment or distribution is prohibited by the foregoing provisions, then
such payment or distribution will be received and held in trust by the trustee
or such holders for the benefit of the holders of Senior Indebtedness. Such
payment or distribution shall be paid or delivered by the trustee or such
holders, as the case may be, to the holders of the Senior Indebtedness remaining
unpaid or unprovided for, to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness held or represented by each, for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay or to provide for the payment of all such Senior Indebtedness
in full after giving effect to any concurrent payment and distribution to the
holders of such Senior Indebtedness.
No provisions contained in the subordinated debt indenture or the
subordinated debt securities will affect the obligation of the Company, which is
absolute and unconditional, to pay, when due, principal of and any premium and
interest on the subordinated debt securities as and when the same shall become
due and payable. The subordination provisions of the subordinated debt indenture
and the subordinated debt securities will not prevent the occurrence of any
event of default under the subordinated debt indenture or limit the rights of
the trustee or any holder of subordinated debt securities, subject to the three
preceding paragraphs, to pursue any other rights or remedies with respect to the
subordinated debt securities.
The prospectus supplement respecting any series of subordinated debt
securities will set forth any subordination provisions applicable to such series
in addition to or different from those described above.
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness and holders of other obligations of the
Company that are not subordinated to Senior Indebtedness may receive more,
ratably, than holders of the subordinated debt securities. However, this
subordination will not prevent the occurrence of an event of default or limit
the right of acceleration in respect of the subordinated debt securities.
CONVERSION. The subordinated debt indenture may provide for a right of
conversion of subordinated debt securities into common stock (or cash in lieu
thereof). The following provisions will apply to subordinated debt securities
that are convertible subordinated debt securities unless otherwise provided in a
prospectus supplement.
The holder of any convertible subordinated debt securities will have the
right exercisable at any time prior to the close of business on the second
business day prior to their stated maturity, unless previously redeemed or
otherwise purchased by the Company, to convert such subordinated debt securities
into shares of common stock at the conversion price set forth in the applicable
prospectus supplement. The holder of convertible subordinated debt securities
may convert any portion thereof which is $1,000 in principal amount of any
integral multiple thereof.
The conversion price will be subject to adjustment as set forth in
subordinated debt indenture Fractional shares of common stock will not be issued
upon conversion. The Company will pay a cash adjustment in lieu of any
fractional share based on the then current market price of the common stock.
Upon conversion, no adjustments will be made for accrued interest or dividends.
As a result,
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convertible subordinated debt securities surrendered for conversion between the
record date for an interest payment and the interest payment date must be
accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive.
In the case of any reclassification, consolidation or merger of the Company
with or into another person or any merger of another person with or into the
Company (with certain exceptions), or in case of any conveyance, transfer or
lease of the assets of the Company substantially as an entirety, each
convertible subordinated debt security then outstanding will, without the
consent of any holder, become convertible only into the kind and amount of
securities, cash and other property receivable upon such reclassification,
consolidation, merger, conveyance, transfer or lease by a holder of the number
of shares of common stock into which such subordinated debt security was
convertible immediately prior thereto, after giving effect to any adjustment
event, who failed to exercise any rights of election and received per share the
kind and amount received per share by a plurality of non-electing shares.
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DESCRIPTION OF PREFERRED SECURITIES
The trust will issue the preferred securities pursuant to the terms of the
trust agreement. The preferred securities will represent preferred undivided
beneficial interests in the assets of the trust. Holders of the preferred
securities will be entitled to a preference over the common securities in
certain circumstances with respect to distributions and amounts payable on
redemption of the trust securities or liquidation of the trust. See
"--Subordination of Common Securities." The trust agreement will be qualified
under the Trust Indenture Act of 1939. This following description is a summary
of material provisions of the preferred securities, the common securities and
the trust agreement, a copy of which is filed as an exhibit to the Registration
Statement of which this prospectus is a part. This summary description does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the trust agreement.
GENERAL
The trust agreement authorizes the trust to issue the preferred securities
and the common securities. The Company will own all of the common securities.
The preferred securities will rank equally, and payments on the preferred
securities will be made pro rata, with the common securities. However, upon the
occurrence of a debenture event of default, the rights of the holders of the
common securities to receive distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
preferred securities.
The trust will invest the proceeds obtained from any issuance of preferred
securities, together with the consideration paid by the Company for the common
securities, in trust debentures issued by the Company. See "Description of Trust
Debentures." Legal title to the trust debentures will be held by the property
trustee in trust for the benefit of the holders of the trust securities.
In accordance with the trust agreement, the trust may not:
- borrow money;
- issue debt or any securities other than the trust securities;
- execute mortgages; or
- pledge any of its assets.
The Company will guarantee distributions on the preferred securities on a
limited basis to the extend described under the caption "Description of
Guarantee." The guarantee will not guarantee payment of distributions or amounts
payable on redemption of the preferred securities or liquidation of the trust
when the trust does not have funds on hand legally available for such payments.
In such event, a remedy of a holder of preferred securities is to direct the
property trustee to enforce its rights under the trust debentures. If the
property trustee fails to enforce its rights with respect to the trust
debentures held by the trust, any record holder of preferred securities may, to
the fullest extent permitted by law, institute legal proceedings directly
against the Company to enforce the property trustee's rights under such trust
debentures without first instituting any legal proceedings against such property
trustee or any other person or entity. In addition, a holder of preferred
securities may institute a legal proceeding directly against the Company for
enforcement of payment to such holder of principal of, premium, if any, or
interest on the trust debentures having a principal amount equal to the
aggregate liquidation amount of the preferred securities of such holder on or
after the due date specified in the trust debentures.
Holders of the preferred securities have no preemptive or similar rights.
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DISTRIBUTIONS
Distributions on the preferred securities will be payable on the dates and
at the rates set forth in a prospectus supplement. The distribution rate and the
relevant distribution date for the trust securities will correspond to the
payments and payment dates on the trust debentures. The revenue of the trust
available for distribution to holders of the preferred securities will be
limited to payments under the trust debentures in which the trust will invest
the proceeds from the issuance and sale of the trust securities. If the Company
does not make interest payments on the trust debentures, the property trustee
will not have funds available to pay distributions on the preferred securities.
The Company may, on one or more occasion, defer the payment of interest on
the trust debentures for a period not exceeding 10 consecutive semi-annual
periods, unless a debenture event of default has occurred and is continuing.
However, no deferral period shall end on a date other than an interest payment
date or extend beyond the stated maturity date. Semi-annual distributions on the
preferred securities will be deferred by the trust during any such deferral
period. Distributions to which holders of the preferred securities are entitled
during any such deferral period will accumulate additional distributions at the
rate per annum set forth in the prospectus supplement.
Upon the termination of any deferral period and the payment of all amounts
then due on any interest payment date, the Company may elect to begin a new
deferral period, subject to the requirements described above. No interest shall
be due and payable during an deferral period, except at the end of the period.
The Company must give the property trustee, the debenture trustee and the
administrative trustees notice of its election to defer the payment of interest
on the trust debentures at least five business days prior to the earlier of:
- the date the distributions on the preferred securities would have been
payable except for the election to begin such deferral period; or
- the date the administrative trustees are required to give notice to any
securities exchange or to holders of preferred securities of the record
date or the date such distributions are payable, but in any event not less
than five business days prior to such record date.
There is no limitation on the number of times that the Company may elect to
begin an deferral period. Accordingly, there could be multiple deferral periods
of varying lengths throughout the term of the preferred securities. See
"Description of Trust Debentures--Option to Extend Interest Payment Date."
During any deferral period, the Company may not, and will not permit any
subsidiaries of the Company to:
- 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 (subject to certain exceptions);
- make any payment of principal of or premium, if any, or interest on or
repay, repurchase or redeem any debt securities of the Company, including
other debentures; that rank PARI PASSU with or junior in right of payment
to the trust debentures; or
- make any guarantee payments (other than payments under the guarantee) with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company, including other guarantees, if such guarantee
ranks PARI PASSU with or junior in right of payment to the trust
debentures.
PAYMENT OF ADDITIONAL SUMS
If the trust is required to pay any taxes, duties, or other governmental
charges imposed by the United States or any other taxing authority, the Company
will be required to pay such additional sums
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necessary in order that the amount of distributions then due and payable by the
trust on the outstanding preferred securities and common securities of the trust
will not be reduced as a result of any additional taxes, duties and other
governmental charges to which the Trust has become subject.
REDEMPTION
Upon the repayment on the stated maturity date or prepayment prior to the
stated maturity date of the trust debentures (other than following the
distribution of the trust debentures to the holders of the trust securities),
the proceeds from such repayment or prepayment shall be applied by the property
trustee to redeem a Like Amount (as defined below) of the trust securities, upon
not less than 30 nor more than 60 days' notice of a date of redemption to the
holders of the trust securities, at the applicable redemption price, which shall
be equal to:
- in the case of the payment of the trust debentures on the stated maturity
date, the maturity redemption price equal to the principal amount of, plus
accrued and unpaid interest on, the trust debentures;
- in the case of the optional prepayment of the trust debentures, upon the
occurrence and continuation of a Special Event, the Special Event
Redemption Price equal to the Special Event Prepayment Price in respect of
the trust debentures; and
- in the case of the optional prepayment of the trust debentures, the
optional redemption price equal to the optional prepayment price in
respect of the trust debentures.
See "Description of Trust Debentures--Optional Prepayment" and "--Special Event
Prepayment." If less than all of the trust debentures are to be prepaid on a
redemption date, then the proceeds of such prepayment shall be allocated pro
rata among the trust securities.
"Like Amount" means:
- with respect to a redemption of the trust securities, trust securities
having a liquidation amount equal to the principal amount of trust
debentures to be paid in accordance with their terms; and
- with respect to a distribution of trust debentures upon the dissolution
and liquidation of the trust, trust debentures having a principal amount
equal to the liquidation amount of the trust securities of the holder to
whom such trust debentures are being distributed.
The Company will have the option to prepay the trust debentures:
- in whole at any time or in part from time to time at the optional
prepayment price; and
- in whole but not in part, at any time within 90 days of the occurrence of
a Special Event, at the Special Event Prepayment Price.
See "Description of Trust Debentures--Optional Prepayment" and "--Special Event
Prepayment."
REDEMPTION PROCEDURES
If applicable, trust securities shall be redeemed at the applicable
redemption price with the proceeds from the contemporaneous repayment or
prepayment of the trust debentures. Any redemption of trust securities will be
made and the applicable redemption price will be payable on the redemption date
only to the extent that the trust has funds legally available for the payment of
the applicable redemption price. See also "--Subordination of Common
Securities."
If the trust gives a notice of redemption in respect of the preferred
securities, then, by 12:00 noon, New York City time, on the redemption date, to
the extent funds are legally available, with respect to the preferred securities
held by DTC or its nominees, the property trustee will deposit with DTC funds
sufficient to pay the applicable redemption price. See "--Form, Denomination,
Book-Entry Procedures
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and Transfer." With respect to the preferred securities held in certificated
form, the property trustee, to the extent funds are legally available, will
deposit with the paying agent for the preferred securities funds sufficient to
pay the applicable redemption price and will give such paying agent irrevocable
instructions and authority to pay the applicable redemption price to the holders
of the preferred securities upon surrender of their certificates evidencing the
preferred securities. See "--Payment and Paying Agency." Notwithstanding the
foregoing, distributions payable on or prior to the redemption date shall be
payable to the holders of such preferred securities on the relevant record dates
for the related distribution dates. If notice of redemption has been given and
funds are deposited as required, then upon the date of such deposit, all rights
of the holders of the preferred securities called for redemption will cease,
except the right of the holders of the preferred securities to receive the
applicable redemption price, and the preferred securities will cease to be
outstanding.
In the event that any redemption date of preferred securities is not a
business day, then the redemption price will be paid on the next succeeding day
that is a business day. If the next succeeding business day falls in the next
calendar year, then the required payment will be made on the immediately
preceding business day. In the event that payment of the redemption price is
improperly withheld or refused and not paid either by the trust or by the
Company pursuant to the guarantee:
- distributions on preferred securities will continue to accumulate at the
then applicable rate, from the redemption date originally established by
the trust to the date the redemption price is actually paid; and
- the actual payment date will be the redemption date for purposes of
calculating the applicable redemption price.
The Company or its subsidiaries may, subject to applicable law, at any time
and from time to time purchase outstanding preferred securities by tender, in
the open market or by private agreement.
The trust may not redeem fewer than all of the outstanding preferred
securities unless all accumulated and unpaid distributions have been paid on all
preferred securities for all semi-annual distribution periods terminating on or
prior to the redemption date. If less than all of the preferred securities and
common securities issued by the trust are to be redeemed on a redemption date,
then the aggregate amount of such preferred securities and common securities to
be redeemed shall be allocated pro rata among the preferred securities and the
common securities. The particular preferred securities to be redeemed shall be
selected on a pro rata basis not more than 60 days prior to the redemption date
by the property trustee from the outstanding preferred securities not previously
called for redemption, by such method as the property trustee shall deem fair
and appropriate. The property trustee shall promptly notify the trust registrar
in writing of the preferred securities selected for redemption and, in the case
of any preferred security selected for partial redemption, the liquidation
amount to be redeemed. For all purposes of the trust agreement, unless the
context otherwise requires, all provisions relating to the redemption of
preferred securities shall relate, in the case of any preferred security
redeemed or to be redeemed only in part, to the portion of the aggregate
liquidation amount of preferred securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days prior to the redemption date to each holder of trust securities at its
registered address. Unless the Company defaults in payment of the applicable
redemption price on, or in the repayment of, the trust debentures, on and after
the redemption date distributions will cease to accrue on the trust securities
called for redemption.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF TRUST DEBENTURES
The Company will have the right at any time to dissolve the trust and, after
satisfaction of liabilities to creditors of the trust, cause the trust
debentures to be distributed to the holders of the
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trust securities in liquidation of the trust. This dissolution right is subject
to the administrative trustees having received an opinion of counsel to the
effect that such distribution will not be a taxable event to holders of
preferred securities.
The trust shall automatically dissolve upon the first to occur of:
- certain events of bankruptcy, dissolution or liquidation of the Company;
- the distribution of a Like Amount of the trust debentures to the holders
of the trust securities, if the Company has given written direction to the
property trustee to dissolve the trust;
- expiraion of the term of the trust;
- redemption of all of the trust securities as described under
"--Redemption;" and
- the entry of an order for the dissolution of the trust by a court of
competent jurisdiction.
If a dissolution occurs as described in bullet points one through three
above, the trust shall be liquidated by the administrative trustees as
expeditiously as possible. After satisfaction of liabilities to the trust's
creditors, the administrative trustees will distribute to the holders of the
trust securities a Like Amount of the trust debentures, unless such distribution
is determined by the property trustee not to be practicable. In such case, the
holders will be entitled to receive pro rata out of the assets of the trust
legally available for distribution to holders an amount equal to the aggregate
of the liquidation amount plus accumulated and unpaid distributions thereon to
the date of payment. If this liquidation distribution can be paid only in part
because the trust has insufficient assets on hand legally available to pay in
full the aggregate liquidation distribution, then the amount payable directly by
the trust on the trust securities shall be paid on a pro rata basis, except that
if a debenture event of default has occurred and is continuing, the preferred
securities shall have a priority over the common securities. See
"--Subordination of common securities."
If the Company elects not to prepay the trust debentures prior to maturity
in accordance with their terms and either elects not to or is unable to dissolve
and liquidate the trust and distribute the trust debentures to holders of the
trust securities, the trust securities will remain outstanding until the
repayment of the trust debentures on the stated maturity date.
After the liquidation date is fixed for any distribution of trust debentures
to holders of the trust securities,
- the trust securities will no longer be deemed to be outstanding;
- DTC or its nominee will receive, in respect of each registered global
certificate, if any, representing trust securities and held by it, a
registered global certificate or certificates representing the trust
debentures to be delivered upon such distribution; and
- any certificates representing trust securities not held by DTC or its
nominee will be deemed to represent trust debentures having a principal
amount equal to the liquidation amount of such trust securities, and
bearing accrued and unpaid interest in an amount equal to the accumulated
and unpaid distributions on such trust securities until such certificates
are presented to the administrative trustees or their agent for
cancellation. At such time, the Company will issue to such holder, and the
debenture trustee will authenticate, a certificate representing such trust
debentures.
SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, and the redemption price of, the trust
securities will be made pro rata based on the liquidation amount of the trust
securities. However, if on any distribution date or redemption date a debenture
event of default has occurred and is continuing, no payment of any
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distribution on, or applicable redemption price of, any of the common
securities, and no other payment on account of the redemption, liquidation or
other acquisition of the common securities, will be made unless payment in full
in cash of all accumulated and unpaid distributions on all of the outstanding
preferred securities for all distribution periods terminating on or prior
thereto, or in the case of payment of the applicable redemption price the full
amount of such redemption price, shall have been made or provided for, and all
funds available to the property trustee shall first be applied to the payment in
full in cash of all distributions on, or redemption price of, the preferred
securities then due and payable.
In the case of any event of default under the trust agreement, the Company,
as holder of the common securities, will be deemed to have waived any right to
act with respect to such event of default until the effect of such event of
default with respect to the preferred securities shall have been cured, waived
or otherwise eliminated. Until any such event of default has been so cured,
waived or otherwise eliminated, the property trustee shall act solely on behalf
of the holders of the preferred securities and not on behalf of the Company as
holder of the common securities, and only the holders of the preferred
securities will have the right to direct the property trustee to act on their
behalf.
EVENTS OF DEFAULT; NOTICE
The occurrence of a debenture event of default constitutes an event of
default under the trust agreement. See "Description of Trust
Debentures--Debenture Events of Default."
Within five business days after the occurrence of any trust agreement event
of default actually known to the property trustee, the property trustee shall
transmit notice of such trust agreement event of default to the holders of the
preferred securities, the administrative trustees and the Company, unless such
trust agreement event of default shall have been cured or waived. The Company
and the administrative trustees are required to file annually with the property
trustee a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the trust agreement.
Upon the occurrence of a trust agreement event of default, the debenture
trustee or the property trustee as the holder of the trust debentures will have
the right under the debenture indenture to declare the principal of and interest
on the trust debentures to be immediately due and payable.
If a trust agreement event of default occurs and is continuing, then the
holders of a majority in aggregate liquidation amount of preferred securities
have the right to direct the exercise of any trust or power conferred upon the
property trustee under the trust agreement, including the right to direct the
property trustee under the trust agreement to exercise the remedies available to
it as holder of the trust debentures. If the property trustee fails to enforce
its rights with respect to the trust debentures held by the trust, any record
holder of preferred securities may, to the fullest extent permitted by law,
institute legal proceedings directly against the Company to enforce the property
trustee's rights under such trust debentures without first instituting any legal
proceedings against such property trustee or any other person or entity. In
addition, if a trust agreement event of default has occurred and is continuing
and such event is attributable to the failure of the Company to pay interest,
principal or other required payments on the trust debentures issued to the trust
on the date such interest, principal or other payment is otherwise payable, then
a record holder of preferred securities may, on or after the respective due
dates specified in the trust debentures, institute a proceeding directly against
the Company for enforcement of payment on trust debentures having a principal
amount equal to the aggregate liquidation amount of the preferred securities
held by such holder. In connection with such an action, the Company will be
subrogated to the rights of such record holder of preferred securities to the
extent of any payment made by the Company to such record holder of preferred
securities.
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If a debenture event of default has occurred and is continuing, the
preferred securities shall have a preference over the common securities as
described under "--Liquidation of the Trust and Distribution of Trust
Debentures" and "--Subordination of Common Securities."
REMOVAL OF ISSUER TRUSTEES
Unless a debenture event of default shall have occurred and be continuing,
any issuer trustee may be removed at any time by the holder of the common
securities. If a debenture event of default has occurred and is continuing, the
property trustee and the Delaware trustee may be removed at such time by the
holders of a majority in liquidation amount of the outstanding preferred
securities. In no event will the holders of the preferred securities have the
right to vote to appoint, remove or replace the administrative trustees, which
voting rights are vested exclusively in the holder of the common securities. No
resignation or removal of an issuer trustee and no appointment of a successor
trustee shall be effective until the acceptance of appointment by the successor
trustee in accordance with the provisions of the trust agreement.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The trust may not merge with or into, convert into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other person,
except as described below or as otherwise described under "--Liquidation of the
Trust and Distribution of Trust Debentures." The trust may, at the request of
the Company with the consent of the administrative trustees and without the
consent of the holders of the preferred securities, the Delaware trustee or the
property trustee, merge with or into, convert into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to a trust organized as such under the
laws of any State; PROVIDED that:
- such successor entity either:
- expressly assumes all of the obligations of the trust with respect to
the trust securities and the trust agreement; or
- substitutes for the trust securities other securities having
substantially the same terms as the trust securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
trust securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise;
- the Company expressly appoints a trustee of such successor entity
possessing the same powers and duties as the property trustee as the
holder of the trust debentures;
- the Successor Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange
or other organization on which the trust securities are then listed or
quoted, if any;
- if the preferred securities (including any Successor Securities) are rated
by any nationally recognized statistical rating organization prior to such
transaction, such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the preferred securities
(including any Successor Securities) or, if the trust debentures are so
rated, the trust debentures, to be downgraded by any such nationally
recognized statistical rating organization;
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust securities
(including any Successor Securities) in any material respect;
- such successor entity has a purpose substantially identical to that of the
trust;
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- prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Company has received an opinion from
independent counsel to the trust experienced in such matters to the effect
that:
- such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the trust securities (including any
Successor Securities) in any material respect; and
- following such merger, conversion, consolidation, amalgamation,
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
of 1940, as amended; and
- the trust or the successor entity will continue to be classified as
a grantor trust for United States federal income tax purposes;
- the Company or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the guarantee and the common guarantee; and
- there shall have been furnished to the property trustee an officer's
certificate and an opinion of counsel, each to the effect that all
conditions precedent in the trust agreement to such transaction have been
satisfied.
Notwithstanding the foregoing, the trust shall not, except with the consent
of holders of 100% in liquidation amount of the trust securities, consolidate,
amalgamate, merge with or into, convert into, or be replaced by or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
trust or the successor entity not to be classified as a grantor trust for United
States federal income tax purposes or would cause the holders of the trust
securities not to be treated as owning an undivided interest in the trust
debentures.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under "--Mergers, Consolidations, Amalgamations
or Replacements of the Trust" and "Description of Guarantee--Amendments and
Assignment" and as otherwise required by law and the trust agreement, the
holders of the preferred securities will have no voting rights.
The trust agreement may be amended from time to time by the Company and the
administrative trustees, without the consent of the holders of the trust
securities:
- to cure any ambiguity, correct or supplement any provisions in the trust
agreement that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
the trust agreement, which shall not be inconsistent with the other
provisions of the trust agreement; or
- to modify, eliminate or add to any provisions of the trust agreement to
such extent as shall be necessary to ensure that the trust will be
classified for United States federal income tax purposes as a grantor
trust at all times that any trust 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, HOWEVER, that in each such case the interests of the holders of the
trust securities shall not be adversely affected in any material respect. Any
amendments of the trust agreement pursuant to the foregoing shall become
effective once notice is given to the holders of the trust securities.
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The trust agreement may be amended by the issuer trustees and the Company:
- with the consent of holders representing a majority (based upon
liquidation amount) of the outstanding trust securities; and
- upon receipt by the issuer trustees of an opinion of counsel experienced
in such matters to the effect that such amendment or the exercise of any
power granted to the issuer trustees in accordance with such amendment
will not affect the trust's status as a grantor trust for United States
federal income tax purposes or the trust's exemption from status as an
"investment company" under the Investment Company Act;
PROVIDED THAT, without the consent of each holder of trust securities, the trust
agreement may not be amended to:
- change the amount or timing of any distribution on the trust securities or
otherwise adversely affect the amount of any distribution required to be
made in respect of the trust securities as of a specified date; or
- restrict the right of a holder of trust securities to institute suit for
the enforcement of any such payment on or after such date.
So long as any trust debentures are held by the trust, the issuer trustees
shall not:
- direct the time, method and place of conducting any proceeding for any
remedy available to the debenture trustee, or executing any trust or power
conferred on the debenture trustee with respect to the trust debentures;
- waive any past defaults under the indenture;
- exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of the trust debentures; or
- consent to any amendment, modification or termination of the indenture or
the trust debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the holders of a majority in
liquidation amount of all outstanding preferred securities.
However, where a consent under the indenture would require the consent of each
holder of trust debentures affected thereby, no such consent shall be given by
the property trustee without the prior consent of each holder of the preferred
securities. The issuer trustees shall not revoke any action previously
authorized or approved by a vote of the holders of the preferred securities
except pursuant to a subsequent vote of such holders. The property trustee shall
notify each holder of preferred securities of any notice of default which it
receives with respect to the trust debentures. In addition to obtaining the
foregoing approvals of the holders of the preferred securities, prior to taking
any of the foregoing actions, the issuer trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the trust will not fail
to be classified as a grantor trust for United States federal income tax
purposes on account of such action.
Any required approval of holders of preferred securities may be given at a
meeting of such holders convened for such purpose or pursuant to written consent
(without prior notice). The property trustee will cause a notice of any meeting
at which holders of preferred securities are entitled to vote to be given to
each holder of record of preferred securities in the manner set forth in the
trust agreement.
No vote or consent of the holders of preferred securities will be required
for the trust to redeem and cancel the preferred securities in accordance with
the trust agreement.
Notwithstanding that 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 by the Company,
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the Issuer trustees or any affiliate of the Company or any issuer trustee shall
not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
PAYMENT AND PAYING AGENCY
Payments in respect of preferred securities held in global form shall be
made to the depositary, which shall credit the relevant accounts at the
depositary on the applicable distribution dates, or in respect of preferred
securities that are not held by the depositary, such payments shall be made by
check mailed to the address of the holder entitled thereto as such address shall
appear on the register. The paying agent shall initially be the property trustee
or an affiliate of the property trustee and any co-paying agent chosen by the
property trustee and acceptable to the administrative trustees and the Company.
The paying agent shall be permitted to resign as paying agent upon 30 days'
written notice to the property trustee, the administrative trustees and the
Company. In the event that the property trustee or an affiliate of the property
trustee shall no longer be the paying agent, the administrative trustees shall
appoint a successor (which shall be a bank or trust company acceptable to the
administrative trustees and the Company) to act as paying agent.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
Unless otherwise specified in the applicable prospectus supplement, the
preferred securities will be in registered, global form. The global preferred
securities will be deposited upon issuance with DTC, in New York, New York, and
registered in the name of DTC or its nominee, in each case for credit to an
account of a direct or indirect participant in DTC as described below.
A global preferred security may not be transferred as a whole except by DTC
to another nominee of DTC or to a successor of DTC or its nominee. Beneficial
interests in the global preferred securities shall be transferred and exchanged
through the facilities of DTC. Beneficial interests in the global preferred
securities may not be exchanged for preferred securities in certificated form
except in the limited circumstances described below. See "--Exchange of
Book-Entry Preferred Securities for Certificated Preferred Securities."
DEPOSITARY PROCEDURES
DTC has advised the trust and the Company that DTC is a limited-purpose
trust company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "clearing agency," registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participating organizations and to facilitate the clearance
and settlement of transactions in those securities between participants through
electronic book-entry changes in accounts of its participants. The participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Indirect access to DTC's system is
also available to other entities such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly. Persons who are not participants may
beneficially own securities held by or on behalf of DTC only through the
participants or the indirect participants of DTC. The ownership interest and
transfer of ownership interest of each actual purchaser of each security held by
or on behalf of DTC are recorded on the records of the participants and indirect
participants.
DTC has also advised the trust and the Company that, pursuant to procedures
established by it:
- upon deposit of the global preferred securities, DTC will credit the
accounts of participants designated by the exchange agent with portions of
the liquidation amount of the global preferred securities; and
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- ownership of such interests in the global preferred securities will be
shown on, and the transfer of ownership thereof will be effected only
through, records maintained by DTC (with respect to the participants) or
by the participants and indirect participants (with respect to other
owners of beneficial interests in the global preferred securities).
Investors in the global preferred securities may hold their interests
therein directly through DTC if they are participants in such system, or
indirectly through organizations which are participants in such system. All
interests in a global preferred security will be subject to the procedures and
requirements of DTC. Those interests held through Euroclear or Cedel Bank may
also be subject to the procedures and requirements of such system. The laws of
some states require that certain persons take physical delivery in certificated
form of securities that they own. Consequently, the ability to transfer
beneficial interests in a global preferred security to such persons will be
limited to that extent. Because DTC can act only on behalf of participants,
which in turn act on behalf of indirect participants and certain banks, the
ability of a person having beneficial interests in a global preferred security
to pledge such interests to persons or entities that do not participate in the
DTC system, or otherwise take actions in respect of such interests, may be
affected by the lack of a physical certificate evidencing such interests. For
certain other restrictions on the transferability of the preferred securities,
see "--Exchange of Book-Entry Preferred Securities for Certificated Preferred
Securities."
Except as described below, owners of interests in the global preferred
securities will not have preferred securities registered in their name, will not
receive physical delivery of preferred securities in certificated form and will
not be considered the registered owners or holders thereof under the trust
agreement for any purpose.
Payments in respect of each global preferred security registered in the name
of DTC or its nominee will be payable by the property trustee to DTC in its
capacity as the registered holder under the trust agreement. Under the terms of
the trust agreement, the property trustee will treat the persons in whose names
the preferred securities, including the global preferred securities, are
registered as the owners thereof for the purpose of receiving such payments and
for any and all other purposes whatsoever. Consequently, neither the property
trustee nor any agent thereof has or will have any responsibility or liability
for:
- any aspect of DTC's records or any participant's or indirect participant's
records relating to or payments made on account of beneficial ownership
interests in the global preferred securities, or for maintaining,
supervising or reviewing any of DTC's records or any participant's or
indirect participant's records relating to the beneficial ownership
interests in the global preferred securities; or
- any other matter relating to the actions and practices of DTC or any of
its participants or indirect participants.
DTC has advised the trust and the Company that its current practice, upon
receipt of any payment in respect of securities such as the preferred
securities, is to credit the accounts of the relevant participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in liquidation amount of beneficial interests in the relevant security
as shown on the records of DTC unless DTC has reason to believe it will not
receive payment on such payment date. Payments by the participants and the
indirect participants to the beneficial owners of preferred securities
represented by global preferred securities will be governed by standing
instructions and customary practices and will be the responsibility of the
participants or the indirect participants and will not be the responsibility of
DTC, the property trustee, the trust or the Company. None of the trust, the
Company or the property trustee will be liable for any delay by DTC or any of
its participants in identifying the beneficial owners of the preferred
securities, and the trust, the Company and the property trustee may conclusively
rely on and will be protected in relying on instructions from DTC or its nominee
for all purposes.
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Interests in the global preferred securities will trade in DTC's Same-Day
Funds Settlement System and secondary market trading activity in such interests
will therefore settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its participants. Transfers between
participants in DTC will be effected in accordance with DTC's procedures, and
will be settled in same-day funds.
DTC has advised the trust and the Company that it will take any action
permitted to be taken by a holder of preferred securities only at the direction
of one or more participants to whose account with DTC interests in the global
preferred securities are credited and only in respect of such portion of the
liquidation amount of the preferred securities as to which such participant or
participants has or have given such direction. However, if there is an event of
default under the trust agreement, DTC reserves the right to exchange the global
preferred securities for preferred securities in certificated form and to
distribute such preferred securities to its participants.
The information in this section concerning DTC and its book-entry system has
been obtained from sources that the trust and the Company believe to be
reliable, but neither the trust nor the Company takes responsibility for the
accuracy thereof.
Although DTC, has agreed to the foregoing procedures to facilitate transfers
of interest in the global preferred securities among participants in DTC, they
are under no obligation to perform or to continue to perform such procedures,
and such procedures may be discontinued at any time. None of the trust, the
Company or the property trustee will have any responsibility for the performance
by DTC or their respective participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
EXCHANGE OF BOOK-ENTRY PREFERRED SECURITIES FOR CERTIFICATED PREFERRED
SECURITIES
A global preferred security is exchangeable for preferred securities in
certificated form if:
- DTC notifies the trust that it is unwilling or unable to continue as
depositary for the global preferred security or has ceased to be a
clearing agency registered under the Exchange Act, and the trust fails to
appoint a successor depositary within 90 days;
- the Company, on behalf of the trust, in its sole discretion elects to
cause the issuance of the preferred securities in certificated form; or
- there shall have occurred and be continuing an event of default under the
trust agreement.
In addition, beneficial interests in a global preferred security may be
exchanged for certificated preferred securities upon request but only upon at
least 20 days' prior written notice given to the property trustee by or on
behalf of DTC in accordance with customary procedures. In all cases,
certificated preferred securities delivered in exchange for any global preferred
security or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
depositary (in accordance with its customary procedures).
REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for the
preferred securities.
Registration of transfers of the preferred securities will be effected
without charge by or on behalf of the trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The trust will not be required to register or cause to be
registered the transfer of the preferred securities after they have been called
for redemption.
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INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee, other than during the occurrence and continuance of a
trust agreement event of default, undertakes to perform only such duties as are
specifically set forth in the trust agreement and, during the existence of a
trust agreement event of default, must exercise the same degree of care and
skill as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the property trustee is under no obligation
to exercise any of the powers vested in it by the trust agreement at the request
of any holder of trust securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that might be incurred thereby. If
no trust agreement event of default has occurred and is continuing and the
property trustee is required to decide between alternative courses of action,
construe ambiguous provisions in the trust agreement or is unsure of the
application of any provision of the trust agreement, and the matter is not one
on which holders of the preferred securities or the common securities are
entitled under the trust agreement to vote, then the property trustee shall take
such action as is directed by the Company and, if not so directed, shall take
such action as it deems advisable and in the best interests of the holders of
the trust Securities and will have no liability except for its own bad faith,
negligence or willful misconduct.
Bank One Trust Company, NA will serve as the property trustee, the debenture
trustee and the Guarantee trustee. Bank One Delaware, Inc. will serve as the
Delaware trustee. The Company and certain of its subsidiaries from time to time
borrow money from, and maintain deposit accounts and conduct certain banking
transactions with, Bank One, National Association in the ordinary course of
their business. Bank One, National Association also serves as agent and is a
lender under the Company's bank credit facility.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the trust in such a way that the trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a corporation
for United States federal income tax purposes and so that the trust debentures
will be treated as indebtedness of the Company for United States federal income
tax purposes. In this connection, the Company and the administrative trustees
are authorized to take any action, not inconsistent with applicable law, the
certificate of trust of the trust or the trust agreement, that the Company and
the administrative trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the trust Securities.
The trust agreement and the preferred securities will be governed by and
construed in accordance with the internal laws of the State of Delaware.
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DESCRIPTION OF TRUST DEBENTURES
The trust debentures will be issued under a debenture indenture, as
supplemented or amended from time to time between the Company and The First
National Bank of Chicago, as debenture trustee. The debenture indenture will be
qualified under the Trust Indenture Act of 1939. This summary of certain terms
and provisions of the trust debentures and the debenture indenture does not
purport to be complete and is subject to and is qualified in its entirety by
reference to the debenture indenture and those terms made a part of the
debenture indenture by the Trust Indenture Act. A copy of the debenture
indenture is filed as an exhibit to the Registration Statement of which this
prospectus is a part.
GENERAL
The trust will invest the proceeds obtained from any issuance of preferred
securities, together with the consideration paid by the Company for the common
securities, in trust debentures issued by the Company. The trust debentures will
bear interest from the same date and at the same rate as the preferred
securities. It is anticipated that, until the liquidation, if any, of the trust,
each trust debenture will be held in the name of the property trustee in trust
for the benefit of the holders of the trust securities.
The trust debentures will be issued in denominations of $1,000 and integral
multiples thereof. The trust debentures will mature on the date provided.
The trust debentures will rank equally with all other debentures and will be
unsecured and subordinate and junior in right of payment to all Senior
Indebtedness to the extent and in the manner set forth in the debenture
indenture. See "--Subordination."
SUBORDINATION
In the debenture indenture, the Company has covenanted and agreed that any
trust debentures issued under the debenture indenture will be subordinate and
junior in right of payment to all Senior Indebtedness. Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization, or in connection with any insolvency, receivership or
bankruptcy proceeding of the Company, all Senior Indebtedness must be paid in
full before the holders of trust Debentures will be entitled to receive or
retain any payment in respect thereof.
In the event of the acceleration of the maturity of trust debentures, the
holders of all Senior Indebtedness outstanding at the time of such acceleration
will first be entitled to receive payment in full of such Senior Indebtedness
before the holders of trust debentures will be entitled to receive or retain any
payment in respect of the trust debentures.
No payments on account of principal, or premium, or interest, if any, in
respect of the trust debentures may be made if a default in any payment with
respect to Senior Indebtedness has occurred and is continuing, or an event of
default with respect to any Senior Indebtedness resulting in the acceleration of
the maturity thereof, or if any judicial proceeding shall be pending with
respect to any such default.
"Indebtedness" means:
- every obligation of the Company for money borrowed;
- every obligation of the Company evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses;
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- every reimbursement obligation of the Company with respect to letters of
credit, banker's acceptances or similar facilities issued for the account
of the Company;
- every obligation of the Company issued or assumed as the deferred purchase
price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business);
- every capital lease obligation of the Company;
- all indebtedness of the Company whether incurred on or prior to the date
of the debenture indenture or thereafter incurred, for claims in respect
of derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements;
and
- every obligation of the type referred to in the preceding bullet points of
another person and all dividends of another person the payment of which,
in either case, the Company has guaranteed or is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Indebtedness Ranking on a Parity with the Trust Debentures" means:
- Indebtedness, whether outstanding on the date of execution of the
debenture indenture or thereafter created, assumed or incurred, to the
extent such Indebtedness specifically by its terms ranks equally with and
not prior to the trust debentures in right of payment upon the happening
of the dissolution or winding-up or liquidation or reorganization of the
Company; and
- all other debt securities, and guarantees in respect of those debt
securities (including other debentures and other guarantees), issued to
any other trust, or a trustee of such trust, partnership or other entity
affiliated with the Company that is a financing vehicle of the Company in
connection with the issuance by such financing vehicle of equity
securities that are similar to the preferred securities or other
securities guaranteed by the Company.
The securing of any Indebtedness, otherwise constituting Indebtedness Ranking on
a Parity with the Trust Debentures, will not be deemed to prevent such
Indebtedness from constituting Indebtedness Ranking on a Parity with the Trust
Debentures.
"Indebtedness Ranking Junior to the Trust Debentures" means any
Indebtedness, whether outstanding on the date of execution of the debenture
indenture or thereafter created, assumed or incurred, to the extent such
Indebtedness specifically by its terms ranks junior to and not equally with or
prior to the trust debentures (and any other Indebtedness Ranking on a Parity
with the Trust Debentures) in right of payment upon the happening of the
dissolution or winding-up or liquidation or reorganization of the Company. The
securing of any Indebtedness, otherwise constituting Indebtedness Ranking Junior
to the Trust Debentures shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking Junior to the Trust Debentures.
"Senior Indebtedness" means all Indebtedness, whether outstanding on the
date of execution of the debenture indenture or thereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Trust Debentures or
Indebtedness Ranking Junior to the Trust Debentures, and any deferrals, renewals
or extensions of such Senior Indebtedness.
The Company is a holding company and all of the operating assets of the
Company are owned by the Company's subsidiaries. The Company relies primarily on
dividends from its subsidiaries to meet its obligations for payment of principal
and interest on its outstanding debt obligations and corporate expenses. The
Company is a legal entity separate and distinct from its subsidiaries. Holders
of trust debentures should look only to the Company for payments on the trust
debentures.
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise
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(and thus the ability of holders of the preferred securities to benefit
indirectly from such distribution), is subject to the prior claims of creditors
of that subsidiary, except to the extent the Company may itself be recognized as
a creditor of that subsidiary. Accordingly, the trust debentures will be
effectively subordinated to all existing and future liabilities of the Company's
subsidiaries and all liabilities of any future subsidiaries of the Company. The
debenture indenture does not limit the incurrence or issuance of other secured
or unsecured debt of the Company or any subsidiary, including Senior
Indebtedness.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no debenture event of default has occurred and is continuing, the
Company will have the right under the debenture indenture at any time and from
time to time during the term of the trust debentures to defer the payment of
interest for a period not exceeding 10 consecutive semi-annual periods. However,
no deferral period shall end on a date other than an interest payment date or
extend beyond the stated maturity date. At the end of such deferral period, the
Company must pay all interest then accrued and unpaid.
During any such deferral period, the Company may not, and will not permit
any subsidiary of the Company to:
- 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 (other than (a) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase
shares of, common stock, (b) any declaration of a dividend in connection
with the implementation of a shareholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or repurchase
of any such rights pursuant thereto, (c) as a result of a reclassification
of the Company's capital stock or the exchange or conversion of one class
or series of the Company's capital stock for another class or series of
the Company's capital stock, (d) 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 (e) purchases of common stock related to the issuance of
common stock or rights under any of the Company's benefit plans for its
directors, officers or employees or any of the Company's dividend
reinvestment plans);
- make any payment of principal of, or premium, if any, or interest on or
repay, repurchase or redeem any debt securities of the Company (including
other debentures) that rank PARI PASSU with or junior in right of payment
to the trust debentures; or
- make any guarantee payments (other than payments under the guarantee) with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company (including other guarantees) if such guarantee
ranks PARI PASSU with or junior in right of payment to the trust
debentures.
Prior to the termination of any deferral period, the Company may further
extend such deferral period, so long as such extension does not cause such
deferral period to exceed 10 consecutive semi-annual periods, end on a date
other than an interest payment date or extend beyond the stated maturity date.
Upon the termination of any deferral period and the payment of all amounts then
due on any interest payment date, the Company may elect to begin a new deferral
period, subject to the above requirements. No interest shall be due and payable
during a deferral period, except at the end thereof. The Company must give the
property trustee, the administrative trustees and the debenture trustee notice
of its election defer payment of interest on the trust debentures at least five
business days prior to the earlier of:
- the date the distributions on the trust securities would have been payable
except for the election to begin or extend such deferral period; or
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- the date the administrative trustees are required to give notice to any
securities exchange or to holders of capital securities of the record date
or the date such distributions are payable, but in any event not less than
five business days prior to such record date. The property trustee shall
give notice of the Company's election to begin or extend a new deferral
period to the holders of the preferred securities. There is no limitation
on the number of times that the Company may elect to begin a deferral
period. Accordingly, there could be multiple deferral periods of varying
lengths throughout the term of the trust debentures.
OPTIONAL PREPAYMENT
The trust debentures may be prepayable, in whole at any time or in part from
time to time, at the option of the Company at a prepayment price to the extent
and as set forth in a prospectus supplement.
SPECIAL EVENT PREPAYMENT
If a Special Event occurs and is continuing, the Company may, at its option,
prepay the trust debentures in whole (but not in part) at any time within 90
days of the occurrence of such Special Event, at a prepayment price equal to
100% of the principal amount of the trust debentures to be redeemed plus accrued
and unpaid interest thereon (including Additional Sums, if any) to the date of
redemption.
A "Special Event" means a Tax Event or an Investment Company Event.
"Investment Company Event" means the receipt by the trust and the Company of
an opinion of counsel from counsel experienced in such matters to the effect
that, as a result of the occurrence of a change in law or regulation or a
written change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of original issuance
of the preferred securities, there is more than an insubstantial risk that the
trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the original issuance of the preferred securities.
A "Tax Event" means the receipt by the Company and the trust of an opinion
of counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective 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
amendment or change in any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the issue date, there is more than an insubstantial risk that (i) the trust is,
or will be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the trust
debentures, (ii) interest payable by the Company on the trust debentures is not,
or within 90 days of the date of such opinion will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes, or
(iii) the trust is, or will be within 90 days of the date of such opinion,
subject to more than a DE MINIMIS amount of other taxes, duties or other
governmental charges.
Notice of any prepayment will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of trust debentures to be
prepaid at its registered address. Unless the Company defaults in payment of the
prepayment price, on and after the prepayment date interest ceases to accrue on
such trust debentures called for prepayment.
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ADDITIONAL SUMS
If the trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will pay as
additional amounts on the trust debentures such additional amounts as may be
necessary in order that the amount of distributions then due and payable by the
trust on the outstanding trust securities shall not be reduced as a result of
any such additional taxes, duties and other governmental charges.
CERTAIN COVENANTS OF THE COMPANY
The Company covenants in the debenture indenture that if and so long as the
trust is the holder of all trust debentures, the Company, as borrower, will pay
to the trust all fees and expenses related to the trust and the offering of the
trust securities and will pay, directly or indirectly, all ongoing costs,
expenses and liabilities of the trust (including any taxes, duties, assessments
or governmental charges of whatever nature (other than withholding taxes)
imposed by the United States or any domestic taxing authority upon the trust but
excluding obligations under the trust securities).
The Company also covenants that it will not, and will not permit any
subsidiary of the Company to:
- 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 (subject to certain exceptions);
- make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Company (including other
debentures) that rank PARI PASSU with or junior in right of payment to the
trust debentures; or
- make any guarantee payments (other than payments under the guarantee) with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company (including under other guarantees) if such
guarantee ranks PARI PASSU or junior in right of payment to the trust
debentures, if at such time (1) there shall have occurred any event of
which the Company has actual knowledge that (a) with the giving of notice
or the lapse of time, or both, would be a debenture event of default and
(b) in respect of which the Company shall not have taken reasonable steps
to cure, (2) a debenture event of default shall have occurred and be
continuing, (3) if such trust debentures are held by the property trustee,
the Company shall be in default with respect to its payment of any
obligations under the guarantee or (4) the Company shall have given notice
of its election of a deferral period as provided in the indenture, or such
deferral period, or any extension thereof, shall have commenced and be
continuing.
So long as the trust securities remain outstanding, the Company also
covenants:
- to maintain 100% direct or indirect ownership of the common securities;
PROVIDED, HOWEVER, that any successor of the Company permitted under the
indenture may succeed to the Company's ownership of such common
securities;
- to use its reasonable efforts to cause the trust:
- to remain a business trust, except in connection with the distribution
of trust debentures to the holders of trust securities in liquidation
of the trust, the redemption of all of the trust securities, or certain
mergers, consolidations or amalgamations, each as permitted by the
trust agreement; and
- to otherwise continue to be treated as a grantor trust for United
States federal income tax purposes; and
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- to use its reasonable efforts to cause each holder of trust securities to
be treated as owning an undivided beneficial interest in the trust
debentures.
MODIFICATION OF INDENTURE
From time to time the Company and the debenture trustee may, without the
consent of the holders of trust debentures, amend the debenture indenture for
specified purposes, including, among other things, to cure any ambiguity or to
correct or supplement any provision contained in the debenture indenture or any
supplemental indenture which is defective or inconsistent with any other
provision contained therein (provided that any such action does not materially
adversely affect the interest of the holders of trust debentures) and
qualifying, or maintaining the qualification of, the debenture indenture under
the Trust Indenture Act.
The debenture indenture contains provisions permitting the Company and the
debenture trustee, with the consent of the holders of a majority in aggregate
principal amount of trust debentures, to amend the debenture indenture in a
manner affecting the rights of the holders of trust debentures. However, no such
modification may, without the consent of the holders of each outstanding trust
debenture so affected:
- change the stated maturity, or reduce the rate of interest or extend the
time of payment of interest thereon except pursuant to the Company's right
under the debenture indenture to defer the payment of interest as provided
therein (see "--Option to Extend Interest Payment Date") or reduce amount
of premium on the trust debentures or reduce the amount payable on
redemption thereof or make the principal of, or interest or premium on,
the trust debentures payable in any coin or currency other than that
provided in the trust debentures, or impair or affect the right of any
holder of trust debentures to institute suit for the payment thereof;
- modify the provisions of the indenture with respect to the subordination
of the trust debentures in a manner adverse to the holders;
- reduce the percentage of principal amount of trust debentures, the holders
of which are required to consent to any such modification of the debenture
indenture, or are required to consent to any waiver provided for in the
debenture indenture; or
- modify certain other provisions of the debenture indenture relating to
amendments and waivers of holders.
Notwithstanding the preceding, if the trust debentures are held by the
trust, an amendment will not be effective until the holders of a majority in
liquidation amount of the trust securities have consented to the amendment.
Further, if the consent of the holders of each trust security is required, an
amendment will not be effective until each holder of the trust securities has
consented to such amendment.
DEBENTURE EVENTS OF DEFAULT
The debenture indenture provides that any one or more of the following
described events with respect to the trust debentures constitute a debenture
event of default:
- failure to pay any interest on the trust debentures or any other
debentures when due for 30 days (subject to the deferral of any due date
in the case of an Extension Period); or
- failure to pay any principal or premium, if any, on the trust debentures
or any other debentures when due whether at maturity, upon redemption, by
declaration of acceleration of maturity or otherwise; or
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- failure to perform, or breach of, any other covenant or warranty of the
Company contained in the indenture for 90 days after written notice to the
Company from the debenture trustee or the holders of at least 25% in
aggregate outstanding principal amount of trust debentures; or
- certain events of bankruptcy, insolvency or reorganization of the Company.
Within five business days after the occurrence of a debenture event of
default actually known to the indenture trustee, the indenture trustee must
transmit notice of such debenture event of default to the debenture holders,
unless such debenture event of default has been cured or waived. The debenture
indenture requires the annual filing by the Company with the debenture trustee
of a certificate as to the absence of certain defaults under the Indenture.
The holders of a majority in aggregate outstanding principal amount of the
trust debentures have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the debenture trustee or
to exercise any trust or power conferred upon the debenture trustee under the
debenture indenture. If a debenture event of default has occurred and is
continuing, the debenture trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the trust debentures may declare the
principal amount on all trust debentures due and payable immediately upon a
debenture event of default and should the debenture trustee or such holders of
trust debentures fail to make such declaration, the holders of not less than 25%
in aggregate liquidation amount of the preferred securities will have such
right. The holders of a majority in aggregate outstanding principal amount of
the trust debentures may annul such declaration and waive the default if the
default (other than the non-payment of the principal of the trust debentures
which has become due solely by such acceleration) has been cured and a sum
sufficient to pay all matured installments of interest and principal of, and
premium, if any, due otherwise than by acceleration (with any compounded
interest due thereon) has been deposited with the debenture trustee, and should
the holders of such trust debentures fail to annul such declaration and waive
such default, the holders of a majority in aggregate liquidation amount of the
preferred securities will have such right.
Prior to the declaration accelerating the maturity of the trust debentures,
the holders of a majority in aggregate outstanding principal amount of the trust
debentures may, on behalf of the holders of all the trust debentures, waive any
past default or debenture event of default and its consequences, except a
default in the payment of principal (or premium, if any) on or interest (unless
such default has been cured and a sum sufficient to pay all matured installments
of interest (and premium, if any) and principal due otherwise than by
acceleration has been deposited with the debenture trustee) or a default in
respect of a covenant or provision which under the debenture indenture cannot be
modified or amended without the consent of the holder of each outstanding trust
debenture affected, and should the holders of such trust debentures fail to
waive such default, the holders of a majority in aggregate liquidation amount of
the preferred securities will have such right.
In case a debenture event of default shall occur and be continuing, the
property trustee will have the right to declare the principal of and the
interest on such trust debentures and any other amounts payable under the
debenture indenture, to be forthwith due and payable and to enforce its other
rights as a creditor with respect to such trust debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a debenture event of default has occurred and is continuing and is
attributable to the failure of the Company to pay the principal of (or premium,
if any), or interest on the trust debentures on the date such payment is
otherwise required, a holder of preferred securities may institute a direct
action. The Company may not amend the debenture indenture to remove the
foregoing right to bring a direct action without the prior written consent of
the holders of all of the preferred securities. Notwithstanding any payments
made to a holder of preferred securities by the Company in connection with a
direct action, the Company will remain obligated to pay the principal of (or
premium, if any) or
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interest on the trust debentures, and the Company will be subrogated to the
rights of the holder of such preferred securities with respect to payments on
the preferred securities to the extent of any payments made by the Company to
such holder in any direct action.
The holders of the preferred securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the trust debentures unless there shall have been an
event of default under the trust agreement. See "Description of Preferred
Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The debenture indenture provides that the Company may not consolidate with
or merge into any other person or convey, transfer or lease its properties as an
entirety or substantially as an entirety to any person, and no person shall
consolidate with or merge into the Company or convey, transfer or lease its
properties as an entirety or substantially as an entirety to the Company,
unless:
- in case the Company consolidates with or merges into another person or
conveys, transfers or leases its properties substantially as an entirety
to any person, the successor person is organized and existing under the
laws of the United States or any State or the District of Columbia, and
such successor person expressly assumes the Company's obligations on the
trust debentures and the indenture;
- immediately after giving effect thereto, no debenture event of default,
and no event which, after notice or lapse of time or both, would become a
debenture event of default, has occurred and is continuing; and
- certain other procedural conditions prescribed in the indenture are met.
SATISFACTION AND DISCHARGE
The debenture indenture provides that when, among other things, all trust
debentures not previously cancelled or delivered to the debenture trustee for
cancellation (i) have become due and payable or (ii) will become due and payable
at maturity or called for redemption within one year, and the Company deposits
or causes to be deposited with the debenture trustee funds, in trust, for the
purpose and in an amount sufficient to pay on the stated maturity date or upon
redemption of all the trust debentures not previously delivered to the debenture
trustee for cancellation, the principal (and premium, if any) and interest due
or to become due on the stated maturity date, or the redemption date, as the
case may be, then the debenture indenture will cease to be of further effect
(except as to the Company's obligations to pay all other sums due pursuant to
the debenture indenture and to provide the officers' certificates and opinions
of counsel described therein), and the Company will be deemed to have satisfied
and discharged the debenture indenture.
FORM, REGISTRATION AND TRANSFER
If the trust debentures are distributed to the holders of the trust
securities, the trust debentures may be represented by one or more global
certificates registered in the name of the DTC or its nominee. Under such
circumstances, the depositary arrangements for the trust debentures would be
expected to be substantially similar to those in effect for the preferred
securities. For a description of DTC and the terms of the depositary
arrangements relating to payments, transfers, voting rights, redemptions and
other notices and other matters, see "Description of Preferred Securities--Form,
Denomination, Book-Entry Procedures and Transfer" and "--Depositary Procedures."
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PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and interest on trust
debentures will be made at the office of the debenture trustee in Wilmington,
Delaware or at the office of such paying agent or paying agents as the Company
may designate from time to time, except that at the option of the Company
payment of any interest may be made, except in the case of trust debentures in
global form, (i) by check mailed to the address of the holder thereof as such
address shall appear in the register for trust debentures or (ii) by transfer to
an account maintained by the holder thereof, PROVIDED that proper transfer
instructions have been received by the relevant record date. Payment of any
interest on any trust debenture will be made to the person in whose name such
trust debenture is registered at the close of business on the record date for
such interest, except in the case of defaulted interest. The Company may at any
time designate additional paying agents or rescind the designation of any paying
agent; however the Company will at all times be required to maintain a paying
agent in each place of payment for the trust debentures.
Any monies deposited with the debenture trustee or any paying agent for the
payment of the principal of (and premium, if any) or interest on any trust
debenture and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall, at the request of
the Company, be repaid to the Company and the holder of such trust debenture
shall thereafter look only to the Company for payment thereof.
GOVERNING LAW
The Indenture and the trust debentures will be governed by and construed in
accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The debenture trustee is subject to all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act of
1939. Subject to such provisions, the debenture trustee is under no obligation
to exercise any of the powers vested in it by the indenture at the request of
any holder of trust debentures, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be incurred
thereby. The debenture trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the performance of its duties
if the debenture trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it. Bank One Trust Company, NA will serve
as debenture trustee. See "Description of Preferred Securities--Information
Concerning the Property Trustee."
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DESCRIPTION OF GUARANTEE
Set forth below is a summary of information concerning the guarantee, which
will be executed and delivered by the Company for the benefit of the holders
from time to time of preferred securities. The guarantee will be qualified under
the Trust Indenture Act of 1939. Bank One Trust Company, NA, as the guarantee
trustee, will hold the guarantee for the benefit of the holders of the preferred
securities. The following summary is not necessarily complete, and reference is
hereby made to the copy of the form of the guarantee (including the definitions
therein of certain terms), which is filed as an exhibit to the Registration
Statement of which this prospectus forms a part, and to the Trust Indenture Act
of 1939.
GENERAL
The Company will irrevocably and unconditionally agree to pay in full on a
subordinated basis guarantee payments to the holders of the preferred
securities, as and when due, regardless of any defense, right of set-off or
counterclaim that the trust may have or assert other than the defense of
payment. The following payments with respect to the preferred securities, to the
extent not paid by or on behalf of the trust, will be subject to the guarantee:
- any accumulated and unpaid distributions required to be paid on the
preferred securities, to the extent that the trust has funds on hand
legally available therefor at such time;
- the applicable redemption price with respect to the preferred securities
called for redemption, to the extent that the trust has funds on hand
legally available therefor at such time; and
- upon a voluntary or involuntary dissolution, winding-up or liquidation of
the trust (other than in connection with the distribution of the trust
debentures to holders of the preferred securities), the lesser of:
- the liquidation distribution, to the extent the trust has funds legally
available therefor at the time; and
- the amount of assets of the trust remaining available for distribution
to holders of preferred securities after satisfaction of liabilities to
creditors of the trust as required by applicable law.
The Company's obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts by the Company to the holders of the
preferred securities or by causing the trust to pay such amounts to such
holders.
The guarantee will be a guarantee of the guarantee payments with respect to
the preferred securities from the time of issuance of the preferred securities,
but will not apply to distributions and other payments on the preferred
securities when the trust does not have sufficient funds legally and immediately
available to make such distributions or other payments. Therefore, if the
Company does not make interest payments on the trust debentures held by the
property trustee, the trust will not make distributions on the preferred
securities.
The guarantee will rank subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided therein. See "--Status of the
Guarantee." Because the Company is a holding company, the right of the Company
to participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise is subject to the prior
claims of creditors of that subsidiary, except to the extent the Company may
itself be recognized as a creditor of that subsidiary. Accordingly, the
Company's obligations under the guarantee effectively will be subordinated to
all existing and future liabilities of the Company's subsidiaries and all
liabilities of any future subsidiaries of the Company. Claimants should look
only to the Company for payments under the guarantee. See "Description of Trust
Debentures--Subordination." The guarantee does not limit the
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incurrence or issuance of other secured or unsecured debt of the Company or any
subsidiary of the Company, including Senior Indebtedness, whether under the
indenture, any other indenture that the Company may enter into in the future or
otherwise.
The Company will, through the guarantee, the trust agreement, the trust
debentures and the debenture indenture, taken together, fully, irrevocably and
unconditionally guarantee all of the trust's obligations under the preferred
securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the trust's obligations under the
preferred securities. See "Relationship Among the Preferred Securities, the
Trust Debentures and the Guarantee."
STATUS OF THE GUARANTEE
The guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Indebtedness
in the same manner as the trust debentures. See "Description of Trust
Debentures--Subordination."
The guarantee will rank equally with all other guarantees issued by the
Company after the issue date with respect to preferred securities, if any,
issued by other trusts. The guarantee will constitute a guarantee of payment and
not of collection. The guarantee will be held for the benefit of the holders of
the preferred securities. The guarantee will not be discharged except by payment
of the guarantee payments in full to the extent not paid by the trust or upon
distribution to the holders of the preferred securities of the trust debentures.
The guarantee does not place a limitation on the amount of additional Senior
Indebtedness that may be incurred by the Company.
EVENTS OF DEFAULT
An event of default under the guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder; PROVIDED,
HOWEVER, that with respect to a default other than a default in payment of any
guarantee payment, the Company shall have received notice of such default and
shall not have cured such default within 60 days after receipt of such notice.
The holders of not less than a majority in liquidation amount of the preferred
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the guarantee trustee in
respect of the guarantee or to direct the exercise of any trust or power
conferred upon the guarantee trustee under the guarantee.
Any holder of the preferred securities may institute a legal proceeding
directly against the Company to enforce its rights under the guarantee without
first instituting a legal proceeding against the trust, the guarantee trustee or
any other person or entity.
The Company, as guarantor, will be required to file annually with the
guarantee trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
guarantee.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the preferred securities (in which case no vote will be
required), the guarantee may only be amended with the prior approval of the
holders of a majority of the liquidation amount of such outstanding preferred
securities. The manner of obtaining any such approval will be as set forth under
"Description of Preferred Securities--Voting Rights; Amendment of the Trust
Agreement." All guarantees and agreements contained in the guarantee shall bind
the successors, assigns, receivers, trustees and
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representatives of the Company and shall inure to the benefit of the holders of
the preferred securities then outstanding.
TERMINATION OF THE GUARANTEE
The guarantee will terminate and be of no further force and effect upon:
- full payment of the applicable redemption price of the preferred
securities; or
- upon liquidation of the trust, the full payment of the liquidation
distribution or the distribution of the trust debentures to the holders of
the preferred securities.
The guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of the preferred securities must restore
payment of any sums paid under the preferred securities or the guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance of a
default by the Company in performance of the guarantee, will undertake to
perform only such duties as are specifically set forth in the guarantee and, in
case a default with respect to the guarantee has occurred, must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the guarantee
trustee will be under no obligation to exercise any of the powers vested in it
by the guarantee at the request of any holder of the preferred securities unless
it is offered reasonable indemnity against the costs, expenses and liabilities
that might be incurred thereby.
GOVERNING LAW
The guarantee will be governed by and construed in accordance with the laws
of the State of New York.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE
TRUST DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of distributions and other amounts due on the preferred securities
(to the extent the trust has funds on hand legally available for the payment of
such distributions) are irrevocably guaranteed by the Company as and to the
extent set forth under "Description of Guarantee." Taken together, the Company's
obligations under the trust debentures, the debenture indenture, the trust
agreement and the guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee of payments of distributions and other amounts due on
the preferred securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
trust's obligations under the preferred securities. If and to the extent that
the Company does not make the required payments on the trust debentures, the
trust will not have sufficient funds to make the related payments, including
distributions, on the preferred securities. The guarantee will not cover any
such payment when the trust does not have sufficient funds on hand legally
available therefor. In such event, the remedy of a holder of preferred
securities is to institute a direct action. The obligations of the Company under
the guarantee are subordinate and junior in right of payment to all Senior
Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
trust debentures, such payments will be sufficient to cover distributions and
other payments due on the trust securities, primarily because:
- the aggregate principal amount or prepayment price of the trust debentures
is equal to the sum of the liquidation amount or redemption price, as
applicable, of the trust securities;
- the interest rate and interest and other payment dates on the trust
debentures will match the distribution rate and distribution and other
payment dates for the trust securities;
- the Company shall pay for all and any costs, expenses and liabilities of
the trust except the trust's obligations to holders of trust securities
under such trust securities; and
- the trust agreement will provide that the trust is not authorized to
engage in any activity that is not consistent with the limited purposes
thereof.
Notwithstanding anything to the contrary in the debenture indenture, the
Company has the right to set-off any payment it is otherwise required to make
thereunder with and to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any preferred security may institute a legal proceeding directly
against the Company to enforce its rights under the guarantee without first
instituting a legal proceeding against the guarantee trustee, the trust or any
other person or entity.
LIMITED PURPOSE OF THE TRUST
The preferred securities represent preferred undivided beneficial interests
in the assets of the trust, and the trust exists for the sole purpose of:
- issuing and selling the trust securities;
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- using the proceeds from the sale of the trust securities to acquire the
trust debentures; and
- and engaging in only those other activities necessary, advisable or
incidental thereto.
A principal difference between the rights of a holder of a preferred
security and a holder of a trust debenture is that a holder of a trust debenture
will be entitled to receive from the Company the principal amount of, and
premium, if any, and interest on trust debentures held, while a holder of
preferred securities is entitled to receive distributions from the trust (or, in
certain circumstances, from the Company under the guarantee) if and to the
extent the trust has funds on hand legally available for the payment of such
distributions.
RIGHTS UPON DISSOLUTION
Unless the trust debentures are distributed to holders of the trust
securities, upon any voluntary or involuntary dissolution and liquidation of the
trust, after satisfaction of liabilities to creditors of the trust as required
by applicable law, the holders of the trust securities will be entitled to
receive, out of assets held by the trust, the liquidation distribution in cash.
See "Description of Preferred Securities-- Liquidation of the Trust and
Distribution of Trust Debentures." Upon any voluntary or involuntary liquidation
or bankruptcy of the Company, the property trustee, as holder of the trust
debentures, would be a subordinated creditor of the Company, subordinated in
right of payment to all Senior Indebtedness as set forth in the debenture
indenture, but entitled to receive payment in full of principal, and premium, if
any, and interest, before any stockholders of the Company receive payments or
distributions. Since the Company will be the guarantor under the guarantee and
will agree to pay for all costs, expenses and liabilities of the trust (other
than the trust's obligations to the holders of its trust securities), the
positions of a holder of preferred securities and a holder of trust debentures
relative to other creditors and to stockholders of the Company in the event of
liquidation or bankruptcy of the Company are expected to be substantially the
same.
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DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The Company's authorized capital stock consists of 400,000,000 shares of
common stock, par value $0.01 per share, and 50,000,000 shares of preferred
stock, par value $0.01 per share. The summary description of the capital stock
of the Company contained in this prospectus is necessarily general and reference
should be made in each case to the Company's Restated Certificate of
Incorporation, as amended, and Amended and Restated Bylaws, which are exhibits
to the Registration Statement of which this prospectus is a part.
COMMON STOCK
GENERAL. As of September 30, 1999, an aggregate of 155,653,464 shares of
common stock were issued and outstanding. Subject to any prior rights of the
preferred stock then outstanding, holders of common stock are entitled to
receive such dividends as are declared by the Board of Directors out of funds
legally available therefor. Subject to the voting rights, if any, of the
preferred stock, all voting rights are vested in the holders of shares of common
stock, each share being entitled to one vote. The holders of common stock are
not entitled to cumulative voting rights in the election of directors. In the
event of the liquidation, dissolution or winding up of the Company, holders of
common stock are entitled to share ratably in all assets remaining after payment
of liabilities and any preferential amount to which the holders of preferred
stock are entitled. The holders of common stock have no preemptive or conversion
rights and are not subject to further calls or assessments by the Company. The
common stock currently outstanding is, and the common stock to be issued
hereunder will be, fully paid and nonassessable.
The transfer agent and registrar for the common stock of the Company is
ChaseMellon Shareholder Services, L.L.C.
BOARD OF DIRECTORS; STOCKHOLDERS AGREEMENT. BG, Chevron and NOVA each own
approximately 25% of the outstanding shares of common stock. Pursuant to a
stockholders agreement dated August 31, 1996 (the "Stockholders Agreement"),
these stockholders have agreed to vote their common stock, subject to certain
conditions, to cause the Board of Directors to consist of thirteen directors to
be nominated as follows: (i) each of the BG Group, NOVA Group and Chevron Group
(as such terms are defined in the Stockholders Agreement) may nominate: (A)
three directors as long as such stockholder remains a Class A Group (as defined
below); (B) two directors as long as such stockholder remains a Class B Group
(as defined below); and (C) one director as long as such stockholder remains a
Class C Group (as defined below); (ii) two members shall be officers of Dynegy
nominated by the Board of Directors; (iii) two members shall be independent
directors nominated by the Board of Directors; and (iv) all other members, if
any, shall be nominated and elected in accordance with applicable law.
Pursuant to the Stockholders Agreement: (i) a "Class A Group" is defined as
a Group (as defined in the Stockholders Agreement), that owns collectively at
least 34,760,890 shares of common stock; (ii) a "Class B Group" is defined as a
Group that owns collectively at least 23,173,926 shares of common stock but less
than 34,760,890 shares of common stock; and (iii) a "Class C Group" is defined
as a Group that owns collectively at least 11,586,963 shares of common stock but
less than 23,173,926 shares of common stock. Currently, each of the BG Group,
NOVA Group and Chevron Group is a Class A Group under the Stockholders
Agreement, and, therefore, entitled to designate three directors to serve on the
Board of Directors based on its ownership of common stock.
PREFERRED STOCK
GENERAL. The following description of the terms of the preferred stock sets
forth certain general terms and provisions of the preferred stock to which any
prospectus supplement may relate. Certain terms of a series of the preferred
stock offered by any prospectus supplement will be described in the
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prospectus supplement relating to such series of the preferred stock. If so
indicated in the prospectus supplement, the terms of any such series may differ
from the terms set forth below. The following description of the preferred stock
summarizes certain provisions of the Company's Restated Certificate of
Incorporation filed as an exhibit to the Registration Statement to which this
prospectus relates and is subject to and qualified in its entirety by reference
to the Restated Certificate of Incorporation and the statement of designations
that will be filed with the Commission promptly after the offering of such
series of preferred stock.
GENERAL. Under the Company's Restated Certificate of Incorporation, the
Board of Directors is authorized, without further stockholder action, to provide
for the issuance of up to 50,000,000 shares of preferred stock in one or more
series, with such voting powers, or without voting powers, and with such
designations and relative rights and preferences as shall be set forth in
resolutions providing for the issuance thereof adopted by the Board of
Directors.
The preferred stock will have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in the prospectus
supplement relating to a particular series of the preferred stock. Reference is
made to the prospectus supplement relating to the particular series of the
preferred stock offered thereby for specific terms, including:
- the designation of such preferred stock, the number of shares offered and
the liquidation value thereof;
- the price at which such preferred stock will be issued;
- the dividend rate (or method of calculation), the dates on which dividends
shall be payable, whether such dividends shall be cumulative or
noncumulative and, if cumulative, the dates from which dividends shall
commence to accumulate;
- the liquidation preference thereof;
- any redemption or sinking fund provisions;
- any conversion or exchange provisions of such preferred stock; and
- any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, limitations and restrictions of such preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable prospectus supplement, each series
of the preferred stock will rank on a parity as to dividends and distributions
in the event of a liquidation with each other series of the preferred stock, if
any. Holders of preferred stock will have no preemptive rights to subscribe for
or purchase shares of capital stock.
DIVIDEND RIGHTS. Holders of the preferred stock of each series will be
entitled to receive, when, as and if declared by the Board of Directors, out of
assets of the Company legally available therefor, cash dividends at such rates
and on such dates as are set forth in the applicable prospectus supplement. Such
rate may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company on such
record dates as will be fixed by the Board of Directors or a duly authorized
committee thereof. Dividends on any series of the preferred stock may be
cumulative or noncumulative, as provided in the applicable prospectus
supplement. If the Board of Directors fails to declare a dividend payable on a
dividend payment date on any series of preferred stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company shall
have no obligation to pay the dividend accrued for that period, whether or not
dividends are declared for any future period.
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No full dividends will be declared or paid or set apart for payment on
preferred stock of any series ranking, as to dividends, on a parity with or
junior to any series of preferred stock for any period unless full dividends
have been or contemporaneously are declared and paid, or declared and a sum
sufficient for the payment thereof set apart for such payment on such series of
preferred stock for the then-current dividend period and, if such preferred
stock is cumulative, all other dividend periods terminating on or before the
date of payment of such full dividends. When dividends are not paid in full upon
any series of the preferred stock and any other preferred stock ranking on a
parity as to dividends with such series of the preferred stock, all dividends
declared upon such series of the preferred stock and any other preferred stock
ranking on a parity as to dividends will be declared pro rata so that the amount
of dividends declared per share on such series of the preferred stock and such
other preferred stock will in all cases bear to each other the same ratio that
accrued dividends, including, in the case of cumulative preferred stock,
accumulations, if any, in respect of prior dividend periods, per share on such
series of the preferred stock and such other preferred stock bear to each other.
Except as provided in the preceding sentence, unless full dividends, including,
in the case of cumulative preferred stock, accumulations, if any, in respect of
prior dividend periods, on all outstanding shares of any series of the preferred
stock have been paid or declared and set aside for payment, no dividends (other
than a dividend or distribution paid in shares of, or warrants, rights or
options exercisable for or convertible into, common stock or another stock
ranking junior to such series of the preferred stock as to dividends and upon
liquidation) will be declared or paid or set aside for payment or other
distributions made upon the common stock or any other stock of the Company
ranking junior to or on a parity with the preferred stock as to dividends or
upon liquidation, nor will any common stock or any other stock of the Company
ranking junior to or on a parity with such series of the preferred stock as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Company (except by
conversion into or exchange for stock of the Company ranking junior to such
series of the preferred stock as to dividends and upon liquidation). No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments which may be in arrears.
RIGHTS UPON LIQUIDATION. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of each
series of preferred stock will be entitled to receive out of assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to holders of common stock or any other class of stock ranking
junior to such series of the preferred stock upon liquidation, liquidating
distributions in the amount set forth in the applicable prospectus supplement
plus an amount equal to accrued and unpaid dividends for the then-current
dividend period and, if such series of the preferred stock is cumulative, for
all dividend periods prior thereto. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the preferred stock of any series and any other shares of stock of
the Company ranking as to any such distribution on a parity with such series of
the preferred stock are not paid in full, the holders of the preferred stock of
such series and of such other shares will share ratably in any such distribution
of assets of the Company in proportion to the full respective preferential
amounts to which they are entitled. After payment of the full amount of the
liquidating distribution to which they are entitled, the holders of such series
of preferred stock will have no right or claim to any of the remaining assets of
the Company. Neither the sale of all or substantially all the property or
business of the Company nor the merger or consolidation of the Company into or
with any other corporation shall be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, of the Company.
REDEMPTION. A series of the preferred stock may be redeemable, in whole or
in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund, in each case upon terms, at the times and
at the redemption prices set forth in the applicable prospectus supplement.
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The prospectus supplement relating to a series of preferred stock that is
subject to mandatory redemption will specify the number of shares of such series
of preferred stock that will be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to any accrued and unpaid dividends thereon to the
date of redemption. The redemption price may be payable in cash, capital stock
or in cash received from the net proceeds of the issuance of capital stock of
the Company, as specified in the prospectus supplement relating to such series
of preferred stock.
If fewer than all the outstanding shares of any series of the preferred
stock are to be redeemed, whether by mandatory or optional redemption, the
selection of the shares to be redeemed will be determined by lot or pro rata as
may be determined by the Board of Directors or a duly authorized committee
thereof, or by any other method which may be determined by the Board of
Directors or such committee to be equitable. From and after the date of
redemption (unless default shall be made by the Company in providing for the
payment of the redemption price), dividends shall cease to accrue on the shares
of preferred stock called for redemption and all rights of the holders thereof
(except the right to receive the redemption price) shall cease.
In the event that full dividends, including accumulations in the case of
cumulative preferred stock, on any series of the preferred stock have not been
paid, such series of the preferred stock may not be redeemed in part and the
Company may not purchase or acquire any shares of such series of the preferred
stock otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of such series of the preferred stock.
CONVERSION OR EXCHANGE RIGHTS. The prospectus supplement for any series of
the preferred stock will state the terms, if any, on which shares of such series
are convertible into, or exchangeable for, securities of the Company or another
person.
VOTING RIGHTS. Unless otherwise determined by the Board of Directors and
indicated in the prospectus supplement, the holders of the preferred stock will
not be entitled to vote, except as set forth below or except as expressly
required by applicable law. In the event the Company issues share of any series
of preferred stock with voting rights, including any voting rights in the case
of dividend arrearages, unless otherwise specified in the applicable prospectus
supplement, each such share will be entitled to one vote on matters on which
holders of such series of the preferred stock are entitled to vote. In the case
of any series of preferred stock having one vote per share on matters on which
holders of such series are entitled to vote, the voting power of such series, on
matters on which holders of such series and holders of other series of preferred
stock are entitled to vote as a single class, will depend on the number of
shares in such series, not on the aggregate liquidation preference or initial
offering price of the shares of such series of preferred stock.
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DESCRIPTION OF DEPOSITARY SHARES
DEPOSITARY SHARES
GENERAL. The Company may, at its option, elect to offer fractional shares
of preferred stock, rather than full shares of preferred stock. In such event,
the Company will issue to the public receipts for depositary shares, each of
which will represent a fraction (to be set forth in the Applicable prospectus
supplement of a share of a particular series of preferred stock as described
below.
The shares of any series of preferred stock represented by depositary shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") between
the Company and a bank or trust company selected by the Company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit
Agreement, each owner of a depositary share will be entitled, in proportion to
the applicable fraction of a share of preferred stock represented by such
depositary share, to all the rights and preferences of the preferred stock
represented thereby (including dividend, voting, redemption an liquidation
rights).
The depositary shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement Depositary receipts will be distributed to
those persons purchasing the fractional shares of preferred stock in accordance
with the terms of the offering. Copies of the forms of Deposit Agreement and
depositary receipt are filed as exhibits to the Registration Statement of which
this prospectus is a part, and the following summary is qualified in its
entirety by reference to such exhibits.
If required by law or applicable securities exchange rules, engraved
depositary receipts will be prepared. Pending the preparation of definitive
engraved depositary receipts, the Depositary may, upon the written order of the
Company, issue temporary depositary receipts substantially identical to (and
entitling the holders thereof to all the rights pertaining to) the definitive
depositary receipts but not in definitive form. Definitive depositary receipts
will be prepared thereafter without unreasonable delay, and temporary depositary
receipts will be exchangeable for definitive depositary receipts at the
Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute all cash
dividends or other cash distributions received in respect of the preferred stock
to the record holders of depositary shares relating to such preferred stock in
proportion to the number of such depositary shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of depositary shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES. If a series of preferred stock represented
by depositary shares is subject to redemption, the depositary shares will be
redeemed from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of preferred stock held by the
Depositary. The redemption price per depositary share will be equal to the
applicable fraction of their redemption price per share payable with respect to
such series of the preferred stock. Wherever the Company redeems shares of
preferred stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of depositary shares representing the shares of
preferred stock so redeemed. If fewer than all the depositary shares are to be
redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
VOTING THE PREFERRED STOCK. Upon receipt of notice of any meeting at which
the holders of the preferred stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the record holders
of the depositary shares relating to such preferred stock. Each record
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holder of such depositary shares on the record date (which will be the same date
as the record date for the preferred stock) will be entitled to instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
the preferred stock represented by such holder's depositary shares. The
Depositary will endeavor, insofar as practicable, to vote the amount of the
preferred stock represented by such depositary shares in accordance with such
instructions, and the Company will agree to take all action that may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of the preferred stock to the extent
it does not receive specific instructions from the holders of depositary shares
representing such preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT. The form of
depositary receipt evidencing the depositary shares and any provision of the
Deposit Agreement may at any time be amended by agreement between the Company
and the Depositary. However, any amendment that materially and adversely alters
the rights of the holders of depositary shares will not be effective unless such
amendment has been approved by the holders of at least a majority of the
depositary shares then outstanding. The Deposit Agreement may be terminated by
the Company or the Depositary only if (i) all outstanding depositary shares have
been redeemed or (ii) there has been a final distribution in respect of the
preferred stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the holders of
depositary receipts.
CHARGES OF DEPOSITARY. The Company will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary
arrangements. The Company will pay charges of the Depositary in connection with
the initial deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary receipts will pay other transfer and other taxes
and governmental charges and such other charges, including a fee for the
withdrawal of shares of preferred stock upon surrender of depositary receipts,
as are expressly provided in the Deposit Agreement to be for their accounts.
WITHDRAWAL OF PREFERRED STOCK. Upon surrender of depositary receipts at the
principal office of the Depositary, subject to the terms of the Deposit
Agreement, the owner of the depositary shares evidenced thereby is entitled to
delivery of the number of whole shares of preferred stock and all money and
other property, if any, represented by such depositary shares. Partial shares of
preferred stock will not be issued. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number of
depositary shares representing the number of whole shares of preferred stock to
be withdrawn, the Depositary will deliver to such holder at the same time a new
depositary receipt evidencing such excess number of depositary shares. Holders
of preferred stock thus withdrawn will not thereafter be entitled to deposit
such shares under the Deposit Agreement or to receive depositary receipts
evidencing depositary shares therefor.
MISCELLANEOUS. The Depositary will forward to holders of depository
receipts all reports and communications from the Company that are delivered to
the Depositary and that the Company is required to furnish to the holders of the
preferred stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or preferred
stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or upon information provided by persons
presenting preferred stock for deposit, holders of depositary receipts or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any
time by delivering to the Company notice of its election to do so, and the
Company may at any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment. Such successor Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
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DESCRIPTION OF SECURITIES WARRANTS
The Company may issue securities warrants for the purchase of debt
securities, preferred stock or depositary shares. Securities warrants may be
issued independently or together with debt securities, preferred stock, or
depositary shares offered by any prospectus supplement and may be attached to or
separate from any such offered securities. Each series of securities warrants
will be issued under a separate warrant agreement to be entered into between the
Company and a bank or trust company, as warrant agent, all as set forth in the
prospectus supplement relating to the particular issue of securities warrants.
The securities warrant agent will act solely as an agent of the Company in
connection with the securities warrants and will not assume any obligation or
relationship of agency or trust for or with any holders of securities warrants
or beneficial owners of securities warrants. The following summary of certain
provisions of the securities warrants does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all provisions of
the securities warrant agreements.
Reference is made to the prospectus supplement relating to the particular
issue of securities warrants offered thereby for the terms of and information
relating to such securities warrants, including, where applicable:
- the designation, aggregate principal amount, currencies, denominations,
and terms of the series of debt securities purchasable upon exercise of
debt warrants and the price at which such debt securities may be purchased
upon such exercise;
- the number of shares and series of preferred stock and/or depositary
shares purchasable upon the exercise of preferred stock warrants and the
price at which such number of shares of such series of preferred stock
and/or depositary shares may be purchased upon such exercise;
- the date on which the right to exercise such securities warrants shall
commence and the date on which such right shall expire (the "Expiration
Date");
- United States federal income tax consequences applicable to such
securities warrants;
- the amount of securities warrants outstanding as of the most recent
practicable date; and
- any other terms of such securities warrants.
Securities warrants will be issued in registered form only. The exercise
price for securities warrants will be subject to adjustment in accordance with
the applicable prospectus supplement.
Each securities warrant will entitle the holder thereof to purchase such
principal amount of debt securities or such number of shares of preferred stock
or depositary shares at such exercise price as shall in each case be set forth
in, or calculable from, the prospectus supplement relating to the securities
warrants. This exercise price may be subject to adjustment upon the occurrence
of certain events as set forth in such prospectus supplement. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Company), unexercised securities warrants will
become void. The place or places where, and the manner in which, securities
warrants may be exercised shall be specified in the prospectus supplement
relating to such securities warrants.
Prior to the exercise of any securities warrants to purchase debt
securities, preferred stock or depositary shares, holders of such securities
warrants will not have any of the rights of holders of debt securities,
preferred stock or depositary shares, as the case may be, purchasable upon such
exercise, including the right to receive payments of principal of, premium, if
any, or interest, if any, on the debt securities purchasable upon such exercise
or to enforce covenants in the applicable Indenture, or to receive payments of
dividends, if any, on the preferred stock or depositary shares purchasable upon
such exercise, or to exercise any applicable right to vote.
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PLAN OF DISTRIBUTION
Any of the securities being offered hereby may be sold in any one or more of
the following ways from time to time:
- through agents;
- to or through underwriters;
- through dealers; and
- directly by the Company; or
- in the case of preferred securities, by the trust to purchasers.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
Offers to purchase securities may be solicited by agents designated by the
Company from time to time. Any such agent involved in the offer or sale of the
securities in respect of which this prospectus is delivered will be named, and
any commissions payable by the Company or the trust to such agent will be set
forth, in the applicable prospectus supplement. Unless otherwise indicated in
such prospectus supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act of 1933, of the
securities so offered and sold.
If securities are sold by means of an underwritten offering, the Company
and, in the case of an offering of preferred securities, the trust will execute
an underwriting agreement with an underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the respective
amounts underwritten and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any,
will be set forth in the applicable prospectus supplement which will be used by
the underwriters to make resales of the securities in respect of which this
prospectus is being delivered to the public. If underwriters are utilized in the
sale of any securities in respect of which this prospectus is being delivered,
such securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at varying prices
determined by the underwriters at the time of sale. Securities may be offered to
the public either through underwriting syndicates represented by managing
underwriters or directly by one or more underwriters. If any underwriter or
underwriters are utilized in the sale of securities, unless otherwise indicated
in the applicable prospectus supplement, the underwriting agreement will provide
that the obligations of the underwriters are subject to certain conditions
precedent and that the underwriters with respect to a sale of such securities
will be obligated to purchase all such securities if any are purchased.
The Company or the trust, as applicable, may grant to the underwriters
options to purchase additional securities, to cover over-allotments, if any, at
the initial public offering price (with additional underwriting commissions or
discounts), as may be set forth in the prospectus supplement relating thereto.
If the Company or the trust, as applicable, grants any over-allotment option,
the terms of such over-allotment option will be set forth in the prospectus
supplement for such securities.
If a dealer is utilized in the sale of the securities in respect of which
this prospectus is delivered, the Company or the trust, as applicable, will sell
such securities to the dealer as principal. The dealer may then resell such
securities to the public at varying prices to be determined by such dealer at
the time of resale. Any such dealer may be deemed to be an underwriter, as such
term is defined in the
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Securities Act, of the securities so offered and sold. The name of the dealer
and their terms of the transaction will be set forth in the prospectus
supplement relating thereto.
Offers to purchase securities may be solicited directly by the Company or
the trust, as applicable, and the sale thereof may be made by the Company or the
trust directly to institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act of 1933 with respect to
any resale thereof. The terms of any such sales will be described in the
prospectus supplement relating thereto.
Securities may also be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms"), acting as principals for their own
accounts or as agents for the Company or the trust, as applicable. Any
remarketing firm will be identified and the terms of its agreement, if any, with
the Company or the trust and its compensation will be described in the
applicable prospectus supplement. Remarketing firms may be deemed to be
underwriters, as that term is defined in the Securities Act of 1933, in
connection with the securities remarketed thereby.
If so indicated in the applicable prospectus supplement, the Company or the
trust, as applicable, may authorize agents and underwriters to solicit offers by
certain institutions to purchase securities from the Company or the trust at the
public offering price set forth in the applicable prospectus supplement pursuant
to delayed delivery contracts providing for payment and delivery on the date or
dates stated in the applicable prospectus supplement. Such delayed delivery
contracts will be subject to only those conditions set forth in the applicable
prospectus supplement. A commission indicated in the applicable prospectus
supplement will be paid to underwriters and agents soliciting purchases of
securities pursuant to delayed delivery contracts accepted by the Company or the
trust, as applicable.
Agents, underwriters, dealers and remarketing firms may be entitled under
relevant agreements with the Company or the trust, as applicable, to
indemnification by the Company or the trust against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, underwriters, dealers and remarketing firms may
be required to make in respect thereof.
Each series of securities will be a new issue and, other than the common
stock, which is listed on The New York Stock Exchange, will have no established
trading market. The Company may elect to list any series of securities on an
exchange, and in the case of common stock, on any additional exchange, but,
unless otherwise specified in the applicable prospectus supplement, the Company
shall not be obligated to do so. No assurance can be given as to the liquidity
of the trading market for any of the securities.
Agents, underwriters, dealers and remarketing firms may be customers of,
engage in transactions with, or perform services for, the Company and its
subsidiaries in the ordinary course of business.
VALIDITY OF SECURITIES
The validity of the preferred securities of the trust will be passed upon
for the Company and the trust by Richards, Layton & Finger P.A., special
Delaware counsel to the Company and the trust. The validity of the securities
(other than the preferred securities) will be passed upon for the Company by
Vinson & Elkins L.L.P., Houston, Texas, and will be passed upon for any agents,
dealers or underwriters by counsel named in the applicable prospectus
supplement.
EXPERTS
The audited consolidated financial statements and schedule of Dynegy and
subsidiaries, incorporated by reference in this Registration Statement, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered are estimated as follows:
<TABLE>
<S> <C>
Registration Fee.................................................. $ 180,700
Legal fees and expenses........................................... 100,000
Accounting fees and expenses...................................... 50,000
Printing and engraving expenses................................... 50,000
Trustee's fees and expenses....................................... 20,000
Depositary's fees and expenses.................................... 10,000
Miscellaneous expenses............................................ 20,000
---------
Total......................................................... 430,700
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 102 of the Delaware General Corporation Law (the
"DGCL"), the Restated Certificate of Incorporation of the Company, as amended,
provides that, to the fullest extent permitted by Delaware law, no director
shall be liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as director. By virtue of these provisions, a director
of the Company is not personally liable for monetary damages for breach of such
director's fiduciary duty except for liability for (i) breach of duty of loyalty
to the Company or its stockholders, (ii) acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii)
dividends or stock repurchases or redemptions that are unlawful under the DGCL
and (iv) any transaction from which such director receives an improper personal
benefit. In addition, the Certificate of Incorporation provides that if the DGCL
is amended to authorize the further elimination or limitation of the liability
of a director, then the liability of the directors will be eliminated or limited
to the fullest extent permitted by the DGCL, as amended. As a result, the rights
of the Company and its stockholders to obtain monetary damages for acts or
omissions of directors will be more limited than they would be in the absence of
the limitation of liability provision. The limitation of liability provision
does not limit or affect a stockholder's ability to seek and obtain relief under
the federal securities laws.
Section 145 of the DGCL permits indemnification upon a determination that an
officer or director has met the applicable standard of conduct. Such officer or
director is required to have acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of a corporation and,
with respect to any criminal action, without reasonable cause to believe his
conduct was unlawful. Section 145 does not authorize indemnification in actions
brought by or in the right of a corporation with respect to any claim, issue or
matter as to which a director or officer is adjudged to be liable to the
corporation, unless specifically authorized by the Delaware Court of Chancery or
the court in which such action is brought. The Company's Certificate of
Incorporation provides for the mandatory indemnification of officers and
directors to the fullest extent permitted under the DGCL. Section 145 also
expressly provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise.
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The above discussion of the Company's Restated Certificate of Incorporation
and of Sections 102 and 145 of the DGCL is not intended to be exhaustive and is
qualified in its entirety by such Restated Certificate of Incorporation and the
DGCL.
The Company has purchased liability insurance policies covering its
directors and officers to insure against losses that are not covered by the
indemnification of directors and officers by the Company, as discussed above.
Covered losses include those arising from any breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted by the directors or officers in their respective capacities as such.
The Company is also insured against losses incurred as a result of indemnity
payments to any director or officer.
The form of Amended and Restated Declaration of Trust provides that the
Company will indemnify, to the fullest extent permitted by law, any
administrative trustee, any officer, director, shareholder, member, partner,
employee, representative, agent or affiliate thereof and any officer, employee
or agent of the Trust or its affiliates (each a "Company Indemnified Person"),
who is or was a party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the Trust) by reason of
the fact the he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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 conduct was unlawful. The Amended and Restated Declaration of
Trust provides that no indemnification will be made in respect of any claim,
issue or matter as to which a Company Indemnified Person is adjudged liable to
the Trust unless the Court of Chancery of Delaware or the court in which such
action or suit was brought determines that such Company Indemnified Person is
entitled to indemnity for such expenses as such Court of Chancery or other court
deems proper. To the extent that a Company Indemnified Person is successful on
the merits or otherwise in defense of any action, suit or proceeding, he shall
be indemnified, to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. Expenses incurred by a Company Indemnified Person in defending an
action, suit or proceeding may be advanced by the Company in certain
circumstances.
The form of Amended and Restated Declaration of Trust also provides that the
Company will indemnify the property trustee, the Delaware trustee and any
officer, director, shareholder, member, partner, employee, representative,
custodian, nominee, agent or affiliate thereof (each a "Fiduciary Indemnified
Person"), for and to hold each Fiduciary Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense including taxes incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust.
II-2
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<C> <C> <S>
*1.1 -- Proposed Form of Underwriting Agreement (Debt Securities).
*1.2 -- Proposed Form of Underwriting Agreement (Preferred Stock).
*1.3 -- Proposed Form of Underwriting Agreement (Common Stock).
*1.4 -- Proposed Form of Underwriting Agreement (Securities Warrants).
*1.5 -- Proposed Form of Underwriting Agreement (Preferred Securities).
4.1 -- Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1
to the Company's Annual Report on Form 10-K for the year ended December 31,
1996).
4.1.1 -- Certificate of Amendment to the Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's Quarterly Report on
Form 10-Q for the period ended September 30, 1998).
4.2 -- Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1998).
**4.3 -- Form of Debt Securities.
4.4 -- Indenture by and between the Company and Bank One Trust Company, NA (formerly
The First National Bank of Chicago), as Trustee, dated as of September 26, 1996,
as amended and restated as of March 23, 1998 (incorporated by reference to
Exhibit 4.21 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1997).
4.5 -- Subordinated Debt Indenture between the Company and Bank One Trust Company, NA
(formerly The First National Bank of Chicago), as Trustee, dated July 17, 1998
(incorporated by reference to Exhibit 4.5 to the Company's Registration
Statement on Form S-3 filed with the SEC on July 30, 1998)
4.6 Certificate of Trust of Dynegy Capital Trust II (incorporated by reference to
Exhibit 4.6 to the Company's Registration Statement on Form S-3 filed with the
SEC on July 30, 1998).
***4.6.1 -- Certificate of Amendment to Certificate of Trust of Dynegy Capital Trust II.
4.7 -- Declaration of Trust of Dynegy Capital Trust II (incorporated by reference to
Exhibit 4.7 to the Company's Registration Statement on Form S-3 filed with the
SEC on July 30, 1998).
4.8 -- Form of Amended and Restated Declaration of Trust of Dynegy Capital Trust II
(incorporated by reference to Exhibit 4.8 to the Company's Registration
Statement on Form S-3 filed with the SEC on July 30, 1998).
4.9 -- Form of Trust Preferred Security Certificate for Dynegy Capital Trust II
(included in Exhibit 4.8).
4.10 -- Form of Debenture Indenture between the Company and Bank One Trust Company, NA
(formerly The First National Bank of Chicago), as Trustee (incorporated by
reference to Exhibit 4.10 to the Company's Registration Statement on Form S-3
filed with the SEC on July 30, 1998).
4.11 Form of Trust Debentures of the Company (included in Exhibit 4.10).
4.12 -- Form of Guarantee in respect of Dynegy Capital Trust II, with respect to the
Preferred Securities (incorporated by reference to Exhibit 4.12.2 to the
Company's Registration Statement on Form S-3 filed with the SEC on July 30,
1998).
**4.13 -- Form of Securities Warrants.
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <C> <S>
**4.14 -- Form of Depositary Agreement.
**4.15 -- Form of Depositary Receipt.
***5.1 -- Opinion of Vinson & Elkins L.L.P., as to the validity of the securities (other
than the preferred securities).
***5.2 -- Opinion of Richards, Layton & Finger P.A., as to the validity of the preferred
securities.
***12.1 -- Computation of Ratio of Earnings to Fixed Charges.
***23.1 -- Consent of Arthur Andersen LLP.
***23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
***23.3 -- Consent of Richards, Layton & Finger P.A. (included in Exhibit 5.2).
***24.1 -- Powers of Attorney (included in signature page).
***25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of Debt Trustee under the Senior Debt Indenture.
***25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of Debt Trustee under the Subordinated Debt Indenture.
***25.3 -- Form T-1 Statement of Eligibility of Debenture Trustee and Qualification under
the Trust Indenture Act of 1939 under the Debenture Indenture.
***25.4 -- Form T-1 Statement of Eligibility of Debenture Trustee and Qualification under
the Trust Indenture Act of 1939 under the Guarantee with respect to the Amended
and Restated Declaration of Trust.
***25.5 -- Form T-1 Statement of Eligibility of Debenture Trustee and Qualification under
the Trust Indenture Act of 1939 under the Preferred Securities.
</TABLE>
- ------------------------
* The Company will file any underwriting agreement that it may enter into as
an exhibit to a Current Report on Form 8-K which is incorporated by
reference into this Registration Statement.
** The Company will file any forms of Debt Securities, Securities Warrants,
Depositary Receipts or Depositary Agreement not previously so filed in a
Current Report on Form 8-K.
*** Filed herewith.
ITEM 17. UNDERTAKING
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
II-4
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed on the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth in response to Item 15, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Dynegy Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the City of Houston, State of Texas on October 14, 1999.
<TABLE>
<S> <C> <C>
DYNEGY INC.
By: /s/ C.L. WATSON
-----------------------------------------
C.L. WATSON
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints John U. Clarke,
Kenneth E. Randolph and Lisa Q. Metts as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any registration statement for the same
offering filed pursuant to Rule 462 under the Securities Act of 1933, and to
file the same, with all exhibits thereto and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and anything appropriate or necessary to be done, as fully and for all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
Chairman of the Board and
/s/ C.L. WATSON Chief Executive Officer
- ------------------------------ (Principal Executive October 14, 1999
C.L. WATSON Officer)
/s/ STEPHEN W. BERGSTROM President and Chief
- ------------------------------ Operating Officer and October 14, 1999
STEPHEN W. BERGSTROM Director
Executive Vice President
/s/ JOHN U. CLARKE and Chief Financial
- ------------------------------ Officer (Principal October 14, 1999
JOHN U. CLARKE Financial Officer)
/s/ BRADLEY P. FARNSWORTH Senior Vice President and
- ------------------------------ Controller, (Principal October 14, 1999
BRADLEY P. FARNSWORTH Accounting Officer)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ STEPHEN J. BRANDON
- ------------------------------ Director October 14, 1999
STEPHEN J. BRANDON
/s/ STANLEY I. RUBENFELD
- ------------------------------ Director October 14, 1999
STANLEY I. RUBENFELD
/s/ PAUL NICHOLAS WOOLLACOTT
- ------------------------------ Director October 14, 1999
PAUL NICHOLAS WOOLLACOTT
/s/ JEFFREY M. LIPTON
- ------------------------------ Director October 14, 1999
JEFFREY M. LIPTON
/s/ A. TERENCE POOLE
- ------------------------------ Director October 14, 1999
A. TERENCE POOLE
- ------------------------------ Director
JACK S. MUSTOE
- ------------------------------ Director
DARALD W. CALLAHAN
/s/ PATRICIA A. WOERTZ
- ------------------------------ Director October 14, 1999
PATRICIA A. WOERTZ
/s/ PETER J. ROBERTSON
- ------------------------------ Director October 14, 1999
PETER J. ROBERTSON
/s/ DANIEL L. DIENSTBIER
- ------------------------------ Director October 14, 1999
DANIEL L. DIENSTBIER
/s/ J. OTIS WINTERS
- ------------------------------ Director October 14, 1999
J. OTIS WINTERS
</TABLE>
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Dynegy Capital
Trust II certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on October 14, 1999.
<TABLE>
<S> <C> <C>
DYNEGY CAPITAL TRUST II
By: Dynegy Inc., as Sponsor
/s/ JOHN U. CLARKE
----------------------------------------
By: John U. Clarke
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
</TABLE>
II-8
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF TRUST
OF
DYNEGY CAPITAL TRUST II
This Certificate of Amendment, dated September 27, 1999 is being duly
executed and filed by Bank One Trust Company, NA, a national banking
association, with the Secretary of State of the State of Delaware for the
purpose of amending the Certificate of Trust of Dynegy Capital Trust II
pursuant to the Delaware Business Trust Act, 12 Del. C. Sections 3801 et seq.
(the "Act").
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "Dynegy Capital Trust II"
(the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Bank One Delaware, Inc.
3 Christiana Center
201 North Walnut Street
Wilmington, Delaware 19801-2920
3. Effectiveness. This Certificate of Amendment shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Amendment as of the day and year first above written.
BANK ONE TRUST COMPANY, NA,
as a trustee of Dynegy Capital Trust II
By: /s/ John R. Prendiville
--------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
[Letterhead of Vinson & Elkins L.L.P.]
October 14, 1999
Dynegy Inc.
1000 Louisiana, Suite 5800
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel for Dynegy Inc., a Delaware corporation (the
"Company"), with respect to certain legal matters in connection with the
registration by the Company and Dynegy Capital Trust II, a Delaware statutory
business trust (the "Trust"), under the Securities Act of 1933, as amended (the
"Securities Act"), of the offer and sale (a) by the Company from time to time,
pursuant to Rule 415 under the Securities Act, of (i) unsecured debt securities,
in one or more series, consisting of notes, debentures or other evidences of
indebtedness (the "Debt Securities"), (ii) shares of preferred stock, par value
$.01 per share, of the Company, in one or more series (the "Preferred Stock"),
which may be issued in the form of depositary shares evidenced by depositary
receipts (the "Depositary Shares"), (iii) shares of common stock, par value $.01
per share, of the Company (the "Common Stock"), (iv) securities warrants (the
"Warrants") to purchase Debt Securities, Preferred Stock, Depositary Shares or
Common Stock and (v) in addition to the Debt Securities, debentures (the "Trust
Debentures") to be purchased by the Trust with the proceeds from the sale of
preferred securities (the "Preferred Securities") and (b) by the Trust from time
to time pursuant to Rule 415 under the Securities Act of the Trust's Preferred
Securities. The aggregate initial offering prices of the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock, Warrants and Preferred
Securities (excluding the aggregate initial offering price of the Trust
Debentures) offered by the Company hereby (collectively, including the Trust
Debentures, the "Securities") will not exceed $650,000,000 or, if applicable,
the equivalent thereof in any other currency or currency unit. The Securities
will be offered in amounts, at prices and on terms to be determined in light of
market conditions at the time of sale and to be set forth in supplements to the
Prospectus contained in the Company's Registration Statement on Form S-3 to
which this opinion is an exhibit.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of (i) the Restated Certificate of Incorporation and Amended
and Restated Bylaws of the Company, each as amended to the date hereof, (ii) the
Indenture between the Company and Bank One Trust Company, NA (formerly The First
National Bank of Chicago), as trustee, dated September 26, 1996, as amended and
restated as of March 23, 1998 (the "Senior Debt Indenture") relating to the
Senior Debt Securities, (ii) the Subordinated Indenture between the Company and
Bank One Trust Company, NA (formerly The First National Bank of Chicago), as
trustee, dated as of July 17, 1998 (the "Subordinated Debt Indenture") relating
to the Subordinated Debt Securities, (iii) the Certificate of Trust of the Trust
dated July 15, 1998, as amended September 27, 1999, (iv) the Declaration of
Trust, dated July 15, 1998, among the Company and the trustees named therein,
(v) a form of Amended and Restated Declaration of Trust (the " Declaration") of
the Trust to be entered into among the Company, as sponsor, the trustees of the
Trust named therein, and the holders from time
<PAGE>
Dynegy Inc.
Page 2
October 14, 1999
to time, in the form included as an exhibit to the Registration Statement,
(vi) a form of Preferred Securities Guarantee Agreement (the "Preferred
Securities Guarantee") to be entered into by the Company, in the form
included as an exhibit to the Registration Statement, (vii) a form of Common
Securities Guarantee Agreement (the "Common Securities Guarantee") to be
entered into by the Company, in the form included as an exhibit to the
Registration Statement, (viii) form of Indenture (the "Debenture Indenture")
to be entered into between the Company and The First National Bank of
Chicago, in the form included as an exhibit to the Registration Statement,
and (ix) such other certificates, statutes and other instruments and
documents as we considered appropriate for purposes of the opinions hereafter
expressed. In addition, we reviewed such questions of law, as we considered
appropriate.
In connection with this opinion, we have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (ii) a Prospectus Supplement will have been prepared
and filed with the Commission describing the Securities offered thereby;
(iii) all Securities will be issued and sold in compliance with applicable
federal and state securities laws and in the manner stated in the Registration
Statement and the applicable Prospectus Supplement; (iv) the Declaration, the
Preferred Securities Guarantee, the Common Securities Guarantee and the
Debenture Indenture will each be duly authorized, executed and delivered by the
parties thereto in substantially the form reviewed by us; (v) each person
signing the Declaration, the Preferred Securities Guarantee, the Common
Securities Guarantee and the Debenture Indenture will have the legal capacity
and authority to do so; (vi) at the time of any offering or sale of any shares
of Common Stock and/or Preferred Stock, that the Company shall have such number
of shares of Common Stock and/or Preferred Stock, as set forth in such offering
or sale, authorized or created and available for issuance; (vii) a definitive
purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto; and (viii) and Securities issuable upon
conversion, exchange or exercise of any Securities being offered will have been
duly authorized, created and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise.
Based on the foregoing, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
(i) When (a) the Subordinated Debt Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended, (b) the Board of
Directors of the Company (or a committee thereof) has taken all
necessary corporate action to approve the issuance and terms of any
Debt Securities, (c) the terms such Debt Securities and of their
issuance and sale have been duly established in conformity with the
applicable Indenture so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirements or
restriction imposed by any court or governmental body having
jurisdiction over the Company, and (d) such Debt Securities have been
duly executed
<PAGE>
Dynegy Inc.
Page 3
October 14, 1999
and authenticated in accordance with the applicable Indenture and
issued and sold as contemplated in the Registration Statement, such
Debt Securities will constitute valid and legally binding obligations
of the Company, subject to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and to general equitable principles, and
any shares of Common Stock issued upon conversion of any such Debt
Securities will be duly authorized, validly issued, fully paid and
nonassessable.
(ii) When (a) the terms of the issuance of any shares of Common Stock or
any series of Preferred Stock (and Depositary Shares, if applicable)
to be issued and sold by the Company pursuant to the Registration
Statement have been established by the Board of Directors of the
Company (or a committee thereof), and (b) such shares have been
issued and sold as contemplated in the Registration Statement, all
such shares will be duly authorized, validly issued, fully paid and
nonassessable.
(iii) When (a) the terms of any Warrants and of their issuance and sale
have been duly established in conformity with the applicable Warrant
Agreement so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirements or restriction
imposed by any court or governmental body having jurisdiction over
the Company, and (b) the Warrants have been duly executed and
authenticated in accordance with the applicable Warrant Agreement and
issued and sold as contemplated in the Registration Statement, the
Warrants will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and to general equitable principles, and
(x) any Debt Securities issued upon exercise of any such Warrant
Agreement will, subject to the qualifications set forth in paragraph
(i) above being met, constitute valid and legally binding obligations
of the Company, subject to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and to general equitable principles, and
any shares of Common Stock issued upon conversion of any such Debt
Securities will be duly authorized, validly issued, fully paid and
nonassessable and (y) any shares of Common Stock or Preferred Stock
(or Depositary Shares, if applicable) issued upon exercise of any
such Warrant Agreement will, subject to the
<PAGE>
Dynegy Inc.
Page 4
October 14, 1999
qualifications set forth in paragraph (ii) above being met, be duly
authorized, validly issued, fully paid and nonassessable.
(iv) When (a) the Debenture Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, (b) the Board of Directors
of the Company (or a committee thereof) has taken all necessary
corporate action to approve the issuance and terms of any Trust
Debentures, and (c) the Trust Debentures have been duly executed and
authenticated in accordance with the Debenture Indenture and issued
as contemplated in the Registration Statement, the Trust Debentures
will constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium
and similar laws relating to or affecting creditors' rights generally
and to general equitable principles.
(v) When the Preferred Securities Guarantee has been duly qualified under
the Trust Indenture Act of 1939, as amended, the Preferred Securities
Guarantee and the Common Securities Guarantee will constitute valid
and legally binding obligations of the Company, subject to
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and
to general equitable principles.
The foregoing opinions are limited to the laws of the State of New York,
the laws of the United States of America and to the General Corporation Law of
the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus forming a
part of the Registration Statement under the caption "Validity of Securities."
In giving this consent, we do not admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act and the
rules and regulations thereunder.
/s/ Vinson & Elkins L.L.P.
<PAGE>
[Letterhead of Richards, Layton & Finger]
October 14, 1999
Dynegy Capital Trust II
c/o Dynegy Inc.
1000 Louisiana, Suite 5800
Houston, TX 77002
Re: DYNEGY CAPITAL TRUST II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Dynegy Inc., a Delaware
corporation (the "Company"), and Dynegy Capital Trust II, a Delaware business
trust (the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated July 15, 1998 (the
"Original Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on July 15, 1998;
(b) The Certificate of Amendment to the Certificate of Trust of the Trust,
dated as of September 27, 1999 (the "Amendment"), as filed in the office of the
Secretary of State on September 27, 1999 (the Original Certificate as amended by
the Amendment being hereinafter referred to as the "Certificate");
(c) The Declaration of Trust of the Trust, dated as of July 15, 1998,
among the Company and the trustees of the Trust named therein;
<PAGE>
Dynegy Capital Trust II
October 14, 1999
Page 2
(d) A form of Amended and Restated Declaration of Trust of the Trust
(including Annex I and Exhibits A-1 and A-2 thereto) (the "Declaration"), to be
entered into among the Company, as sponsor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust, incorporated by reference into the Registration
Statement;
(e) The Registration Statement on Form S-3 (the "Registration Statement"),
including a preliminary prospectus (the "Prospectus"), relating to the Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company and the Trust
with the Securities and Exchange Commission on or about October 14, 1999; and
(f) A Certificate of Good Standing for the Trust, dated October 14, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (f) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (f) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Declaration and the Certificate are in
full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation or due organization or due
formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the
<PAGE>
Dynegy Capital Trust II
October 14, 1999
Page 3
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (collectively, the "Preferred Security Holders") of a
certificate substantially in the form attached as Exhibit A-1 to the
Declaration evidencing the Preferred Security and the consideration for the
Preferred Security acquired by it, in accordance with the Declaration, and as
described in the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in
accordance with the Declaration, and as described in the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We also consent to
Vinson & Elkins L.L.P.'s relying as to matters of Delaware law upon this opinion
in connection with an opinion to be rendered by it on the date hereof as
described in the Prospectus. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the category
of
<PAGE>
Dynegy Capital Trust II
October 14, 1999
Page 4
Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by,
any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER
<PAGE>
DYNEGY INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES ($ IN 000'S)
===============================================================================
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED =========================================================
30-JUN-99 1998 1997 1996 1995
============ ============= ============= ============= ============
<S> <C> <C> <C> <C> <C>
Computation of Earnings:
Pre-tax income (loss) from continuing operations $ 82,193 $ 158,691 $ (149,895) $ 169,645 $ 65,234
Undistributed income from equity investees 10,766 6,477 4,073 21,729 9,169
------------ ------------- ------------- ------------- ------------
Computed Earnings (Loss) 71,427 152,214 (153,968) 147,916 56,065
------------ ------------- ------------- ------------- ------------
Fixed Charges:
Interest costs:
Expensed 37,420 74,992 63,455 46,202 34,475
Capitalized 7,766 7,591 8,800 1,200 1,028
Minority interest in income of a subsidiary 8,316 16,632 9,841 - -
Amortization of financing costs 854 1,320 943 772 1,132
Amortization of Premium - (2,568) (6,768) (4,892) (3,216)
Rental expense representative of interest factor 16,349 20,698 13,572 4,171 3,719
------------ ------------- ------------- ------------- ------------
Total Fixed Charges 70,705 118,665 89,843 47,453 37,138
------------ ------------- ------------- ------------- ------------
Earnings Before Income Taxes and Fixed Charges $ 134,366 $ 263,288 $ (72,925) $ 194,169 $ 92,175
============ ============= ============= ============= ============
Ratio of Earnings to Fixed Charges 1.90 2.22 (a) 4.07 2.48
============ ============= ============= ============= ============
=============
1994
=============
<S> <C>
Computation of Earnings:
Pre-tax income (loss) from continuing operations $ 44,105
Undistributed income from equity investees 3,803
-------------
Computed Earnings (Loss) 40,302
-------------
Fixed Charges:
Interest costs:
Expensed 1,114
Capitalized -
Minority interest in income of a subsidiary -
Amortization of financing costs 1,267
Amortization of Premium -
Rental expense representative of interest factor 955
-------------
Total Fixed Charges 3,336
-------------
Earnings Before Income Taxes and Fixed Charges $ 43,638
=============
Ratio of Earnings to Fixed Charges 13.08
=============
</TABLE>
(a) Earnings are inadequate to cover fixed charges for the year ended December
31, 1997, by approximately $72.9 million.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 24,
1999 included in Dynegy's Form 10-K for the year ended December 31, 1998 and
to all references to our Firm included in this registration statement.
Houston, Texas
October 12, 1999
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
--------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
DYNEGY INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3248415
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1000 LOUISIANA, SUITE 5800
HOUSTON, TEXAS 77002
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SENIOR DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.
2. A copy of the certificates of authority of the
trustee to commence business.
3. A copy of the authorization of the trustee to
exercise corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois on the 7th day of October,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
--------------------------------------
John R. Prendiville
Vice President
3
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or
4
<PAGE>
special meeting. Honorary or advisory directors shall not be counted to
determine the number of directors of the Association or the presence of a
quorum in connection with any board action, and shall not be required to own
qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the
day fixed, to be designated by the Board of Directors or, if the directors fail
to fix the day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be
5
<PAGE>
approved by shareholders owning a majority voting interest in the outstanding
voting stock, and (2) each shareholder shall be entitled to one vote per
share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on the
proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
6
<PAGE>
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall have
the power to appoint one or more vice presidents, a secretary who shall keep
minutes of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a
7
<PAGE>
certificate of approval from the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
branch or branches of the Association to any other location permitted under
applicable law without the approval of the shareholders, subject to approval
by the Office of the Comptroller of the Currency. The Board of Directors
shall have the power to establish or change the location of any nonbranch
office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided
by the Bylaws or the laws of the United States, or waived by shareholders, a
notice of the time, place, and purpose of every annual and special meeting of
the shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
PROVIDED that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and PROVIDED FURTHER that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of
8
<PAGE>
Directors or the Executive Committee acting by a quorum consisting of
Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that in view of all of the
circumstances then surrounding the Claim, such indemnification is equitable
and in the best interests of the Association. Among the circumstances to be
taken into consideration in arriving at such a finding or opinion is the
existence or non-existence of a contract of insurance or indemnity under
which the Association would be wholly or partially reimbursed for such
indemnification, but the existence or non-existence of such insurance is not
the sole circumstance to be considered nor shall it be wholly determinative
of whether such indemnification shall be made. In addition to such finding
or opinion, no indemnification under this Article shall be made unless the
Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or
employee acted in good faith in what he reasonably believed to be the best
interests of the Association or such other corporation and further in the
case of any criminal action or proceeding, that the Director, officer or
employee reasonably believed his conduct to be lawful. Determination of any
Claim by judgment adverse to a Director, officer or employee by settlement
with or without Court approval or conviction upon a plea of guilty or of NOLO
CONTENDERE or its equivalent shall not create a presumption that a Director,
officer or employee failed to meet the standards of conduct set forth in this
Article. Expenses incurred with respect to any Claim may be advanced by the
Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient
to repay such amount unless it is ultimately determined that he is entitled
to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
9
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
10
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
11
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EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer
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shall notify the Directors-elect of their election and to meet forthwith for
the organization of the new Board of Directors. The minutes of the meeting
shall be signed by the presiding officer and the secretary designated for the
meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of the meeting of shareholders of the
result thereof and the names of the Directors elected; provided, however, that
upon failure for any reason of any judge or judges of election, so appointed by
the Directors, to serve, the presiding officer of the meeting shall appoint
other shareholders or their proxies to fill the vacancies. The judges of
election, at the request of the chairman of the meeting, shall act as tellers of
any other vote by ballot taken at such meeting, and shall notify, in writing
over their signature, the secretary of the Board of Directors of the result
thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding
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officer of the annual meeting. If at the time fixed for such meeting there
is no quorum present, the Directors in attendance may adjourn from time to
time until a quorum is obtained. A majority of the number of Directors
elected by the shareholders shall constitute a quorum for the transaction of
business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive Officer,
or President, or at the request of two or more Directors. Any special meeting
may be held at such place and at such time as may be fixed in the call. Written
or oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall
receive such fees for attendance at Board and Board committee meetings and such
fees for service as a Director, irrespective of meeting attendance, as from time
to time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole benefit and which are concurrent and
duplicative with meetings attended or Board service for an affiliate of the Bank
for which the Director receives payment; and provided further that fees
hereunder shall not be paid in the case of any Director in the regular
employment of the Bank or of one of its affiliates. Each member of the Board of
Directors, whether or not such Director is in the regular employment of the Bank
or of one of its affiliates, shall be reimbursed for travel expenses incident to
attendance at Board and Board committee meetings.
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<PAGE>
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the
15
<PAGE>
Bank, perform management functions and have management responsibilities. Any
two or more offices may be held by the same person except that no person
shall hold the office of Chairman of the Board, Chief Executive Officer
and/or President and at the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective designees
the authority to control all personnel, including elected and appointed officers
and employees of the Bank, to employ or direct the employment of such officers
and employees as he or she may deem necessary, including the fixing of salaries
and the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing Director
or the Managing Director shall be vested with all the powers and perform all the
duties of the Senior Managing Director or the Managing Director as defined by
these By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members
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who shall be capable and experienced officers of the Bank appointed from time
to time by the Managing Director and who shall continue as members of the
Investment Management and Trust Committee until their successors are
appointed, provided, however, that any member of the Investment Management
and Trust Committee may be removed by the Managing Director as provided in
this and other sections of these By-Laws. The Managing Director shall fill
any vacancy in the Investment Management and Trust Committee by the
appointment of another capable and experienced officer of the Bank. Each
Investment Management and Trust Committee shall meet at such date, time and
place as the Managing Director shall fix. In the event of the absence of any
member or members of the Investment Management and Trust Committee, the
Managing Director may, in his or her discretion, appoint another officer of
the Bank to fill the place or places of such absent member or members to
serve during such absence. A majority of each Investment Management and
Trust Committee shall constitute a quorum. Each Investment Management and
Trust Committee shall carry out the policies of the Bank, as adopted by the
Board of Directors, which shall be formulated and executed in accordance with
State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report
such proceedings and the actions taken thereby to the Investment Management
and Trust Committee. Each Managing Director shall then report such proceedings
and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
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SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management
staff or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
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Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to
time to appoint officers of the Bank as Vice President for the sole purpose
of executing releases or other documents incidental to the conduct of the
Bank's business in any fiduciary capacity where required by state law or the
governing document. In addition, other persons in the employment of the Bank
or its affiliates may be authorized by the Chief Executive Officer, Chairman
of the Board, President, Senior Managing Directors, Managing Directors, or
Chief Financial Officer to perform acts and to execute the documents
described in the paragraph above, subject, however, to such limitations and
conditions as are contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank
shall be bonded for the honest and faithful performance of their duties for
such amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of
the Board, the Chief Executive Officer, or the President (which signature may
be engraved, printed or impressed), and shall be signed manually by the
Secretary, or any other officer appointed by the Chief Executive Officer for
that purpose. In case any such officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Bank with
the same effect as if such officer had not ceased to be such at the time of
its issue. Each such certificate shall bear the corporate seal of the Bank,
shall recite on its face that stock represented thereby is transferable only
upon the books of the Bank when properly endorsed and shall recite such other
information as is required by law and deemed appropriate by the Board. The
corporate seal may be facsimile engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank
shall be transferable only upon the stock transfer books of the Bank and,
except as hereinafter provided, no transfer shall be made or new certificates
issued except upon the surrender for cancellation of the certificate or
certificates previously issued therefor. In the case of the loss, theft, or
destruction of any certificate, a new certificate may be issued in place of
such certificate upon the furnishing of an affidavit setting forth the
circumstances of such loss, theft, or destruction and indemnity satisfactory
to the Chairman of the Board, the Chief Executive Officer, or the President.
The Board of Directors or the Chairman of the Board, Chief Executive Officer,
or the President may authorize the issuance of a new certificate therefor
without the furnishing of indemnity. Stock transfer books, in which all
transfers of stock shall be recorded, shall be provided. The stock transfer
books may be closed for a reasonable period and under such conditions as the
Board of Directors may at any time determine, for any meeting of
shareholders, the payment of dividends or any other lawful purpose. In lieu
of closing the transfer books, the Board of Directors may, in its discretion,
fix a record date and hour constituting a reasonable period prior to the day
designated for the holding of any meeting of the shareholders or the day
appointed for the payment of any dividend, or for any other purpose at the
time as of which
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shareholders entitled to notice of and to vote at any such meeting or to
receive such dividend or to be treated as shareholders for such other purpose
shall be determined, and only shareholders of record at such time shall be
entitled to notice of or to vote at such meeting or to receive such dividends
or to be treated as shareholders for such other purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with
"SEAL" in the center, and the name "BANK ONE TRUST COMPANY, NA" located
clockwise around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the
Articles of Association, the returns of judges of elections, the By-Laws and
any amendments thereto, the proceedings of all regular and special meetings
of the shareholders and of the Board of Directors, and reports of the
committees of the Board of Directors shall be recorded in the minute books of
the Bank. The minutes of each such meeting shall be signed by the presiding
officer and attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States.
The purpose of the Bank shall be to carry on the general business of a
commercial bank trust department and to engage in such activities as are
necessary, incident, or related to such business. The Articles of
Association of the Bank shall not be amended, or any other provision added
elsewhere in the Articles expanding the powers of the Bank, without the prior
approval of the Comptroller of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a
vote of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers
and Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of
Officers and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
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As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers
and Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
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EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 7, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Dynegy Inc. and
BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal
or State authorities authorized to make such examinations, may be furnished
by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
---------------------------------
John R. Prendiville
Vice President
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EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount
outstanding of the last business day of the quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) . . . . . . . . . 0081 159,911 1.a
b. Interest-bearing balances(2). . . . . . . . . . . . . . . . . . . . . . 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . . . . 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). . . . . . 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . 3123 10 4.b
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . . . 2125 32,593 4.d
5. Trading assets (from Schedule RD-D). . . . . . . . . . . . . . . . . . . . 3545 0 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . . . 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . . . 2155 0 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2143 31,392 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . . . . . 2160 127,322 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . . . 2170 970,653 12.
</TABLE>
- --------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
23
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . . . . . 2200 802,791 13.a
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . . . . . 6631 727,720 13.a1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . RCON 2840 0 15.a
Trading Liabilities(from Sechedule RC-D). . . . . . . . . . . . . . . . RCFD 3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less. . . . . . . . . . . . . . . 2332 0 16.a
b. With original maturity of more than one year . . . . . . . . . . . . . A547 0 16.b
c. With original maturity of more than three years. . . . . . . . . . . . A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding. . . . . . . . . . 2920 0 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . 3200 0 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . . . . . 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . . . . . 3839 35,157 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8434 56 26.b
27. Cumulative foreign currency translation adjustments. . . . . . . . . . . . 3284 0 27.
28. Total equity capital (sum of items 23 through 27). . . . . . . . . . . . . 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28). . . . . . . . . . . . . . . . . . . 3300 970,653 29.
<S><C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . .RCFD 6724 . .... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
24
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)__
-----------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------
DYNEGY INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3248415
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1000 LOUISIANA, SUITE 5800
HOUSTON, TEXAS 77002
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SUBORDINATED DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.
2. A copy of the certificates of authority of the
trustee to commence business.
3. A copy of the authorization of the trustee to
exercise corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois on the 7th day of October,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
-------------------------------------
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or
4
<PAGE>
special meeting. Honorary or advisory directors shall not be counted to
determine the number of directors of the Association or the presence of a
quorum in connection with any board action, and shall not be required to own
qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the
day fixed, to be designated by the Board of Directors or, if the directors fail
to fix the day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be
5
<PAGE>
approved by shareholders owning a majority voting interest in the outstanding
voting stock, and (2) each shareholder shall be entitled to one vote per
share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on the
proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
6
<PAGE>
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall have
the power to appoint one or more vice presidents, a secretary who shall keep
minutes of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a
7
<PAGE>
certificate of approval from the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
branch or branches of the Association to any other location permitted under
applicable law without the approval of the shareholders, subject to approval
by the Office of the Comptroller of the Currency. The Board of Directors
shall have the power to establish or change the location of any nonbranch
office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided
by the Bylaws or the laws of the United States, or waived by shareholders, a
notice of the time, place, and purpose of every annual and special meeting of
the shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
PROVIDED that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and PROVIDED FURTHER that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of
8
<PAGE>
Directors or the Executive Committee acting by a quorum consisting of
Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that in view of all of the
circumstances then surrounding the Claim, such indemnification is equitable
and in the best interests of the Association. Among the circumstances to be
taken into consideration in arriving at such a finding or opinion is the
existence or non-existence of a contract of insurance or indemnity under
which the Association would be wholly or partially reimbursed for such
indemnification, but the existence or non-existence of such insurance is not
the sole circumstance to be considered nor shall it be wholly determinative
of whether such indemnification shall be made. In addition to such finding
or opinion, no indemnification under this Article shall be made unless the
Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or
employee acted in good faith in what he reasonably believed to be the best
interests of the Association or such other corporation and further in the
case of any criminal action or proceeding, that the Director, officer or
employee reasonably believed his conduct to be lawful. Determination of any
Claim by judgment adverse to a Director, officer or employee by settlement
with or without Court approval or conviction upon a plea of guilty or of NOLO
CONTENDERE or its equivalent shall not create a presumption that a Director,
officer or employee failed to meet the standards of conduct set forth in this
Article. Expenses incurred with respect to any Claim may be advanced by the
Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient
to repay such amount unless it is ultimately determined that he is entitled
to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
9
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
--------------------------------------
Comptroller of the Currency
10
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
11
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer
12
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shall notify the Directors-elect of their election and to meet forthwith for
the organization of the new Board of Directors. The minutes of the meeting
shall be signed by the presiding officer and the secretary designated for the
meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of the meeting of shareholders of the
result thereof and the names of the Directors elected; provided, however, that
upon failure for any reason of any judge or judges of election, so appointed by
the Directors, to serve, the presiding officer of the meeting shall appoint
other shareholders or their proxies to fill the vacancies. The judges of
election, at the request of the chairman of the meeting, shall act as tellers of
any other vote by ballot taken at such meeting, and shall notify, in writing
over their signature, the secretary of the Board of Directors of the result
thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding
13
<PAGE>
officer of the annual meeting. If at the time fixed for such meeting there
is no quorum present, the Directors in attendance may adjourn from time to
time until a quorum is obtained. A majority of the number of Directors
elected by the shareholders shall constitute a quorum for the transaction of
business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive Officer,
or President, or at the request of two or more Directors. Any special meeting
may be held at such place and at such time as may be fixed in the call. Written
or oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall
receive such fees for attendance at Board and Board committee meetings and such
fees for service as a Director, irrespective of meeting attendance, as from time
to time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole benefit and which are concurrent and
duplicative with meetings attended or Board service for an affiliate of the Bank
for which the Director receives payment; and provided further that fees
hereunder shall not be paid in the case of any Director in the regular
employment of the Bank or of one of its affiliates. Each member of the Board of
Directors, whether or not such Director is in the regular employment of the Bank
or of one of its affiliates, shall be reimbursed for travel expenses incident to
attendance at Board and Board committee meetings.
14
<PAGE>
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the
15
<PAGE>
Bank, perform management functions and have management responsibilities. Any
two or more offices may be held by the same person except that no person
shall hold the office of Chairman of the Board, Chief Executive Officer
and/or President and at the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective designees
the authority to control all personnel, including elected and appointed officers
and employees of the Bank, to employ or direct the employment of such officers
and employees as he or she may deem necessary, including the fixing of salaries
and the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing Director
or the Managing Director shall be vested with all the powers and perform all the
duties of the Senior Managing Director or the Managing Director as defined by
these By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members
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<PAGE>
who shall be capable and experienced officers of the Bank appointed from time
to time by the Managing Director and who shall continue as members of the
Investment Management and Trust Committee until their successors are
appointed, provided, however, that any member of the Investment Management
and Trust Committee may be removed by the Managing Director as provided in
this and other sections of these By-Laws. The Managing Director shall fill
any vacancy in the Investment Management and Trust Committee by the
appointment of another capable and experienced officer of the Bank. Each
Investment Management and Trust Committee shall meet at such date, time and
place as the Managing Director shall fix. In the event of the absence of any
member or members of the Investment Management and Trust Committee, the
Managing Director may, in his or her discretion, appoint another officer of
the Bank to fill the place or places of such absent member or members to
serve during such absence. A majority of each Investment Management and
Trust Committee shall constitute a quorum. Each Investment Management and
Trust Committee shall carry out the policies of the Bank, as adopted by the
Board of Directors, which shall be formulated and executed in accordance with
State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report
such proceedings and the actions taken thereby to the Investment Management
and Trust Committee. Each Managing Director shall then report such proceedings
and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
17
<PAGE>
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management
staff or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
18
<PAGE>
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required
by state law or the governing document. In addition, other persons in the
employment of the Bank or its affiliates may be authorized by the Chief
Executive Officer, Chairman of the Board, President, Senior Managing Directors,
Managing Directors, or Chief Financial Officer to perform acts and to execute
the documents described in the paragraph above, subject, however, to such
limitations and conditions as are contained in the authorization given to such
person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall
be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which
19
<PAGE>
shareholders entitled to notice of and to vote at any such meeting or to
receive such dividend or to be treated as shareholders for such other purpose
shall be determined, and only shareholders of record at such time shall be
entitled to notice of or to vote at such meeting or to receive such dividends
or to be treated as shareholders for such other purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of the
Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
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As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
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<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 7, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Dynegy Inc. and
BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
-------------------------------
John R. Prendiville
Vice President
22
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EXHIBIT 7
<TABLE>
<S><C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCON
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . . 0081 159,911 1.a
b. Interest-bearing balances(2). . . . . . . . . . . . . . . . . . . 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). . . 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1350 576,473 3.
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income (from Schedule
RC-C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . 3123 10 4.b
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . 3128 0 4.c
RCON
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . . . . 2125 32,593 4.d
5. Trading assets (from Schedule RD-D). . . . . . . . . . . . . . . . . 3545 0 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding . . . . 2155 0 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . 2143 31,392 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . . 2160 127,322 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . 2170 970,653 12.
</TABLE>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
23
<PAGE>
<TABLE>
<S><C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . . 2200 802,791 13.a
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . . 6631 727,720 13.a1
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . RCON 2840 0 15.a
Trading Liabilities(from Sechedule RC-D). . . . . . . . . . . . . RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less. . . . . . . . . . . . 2332 0 16.a
b. With original maturity of more than one year . . . . . . . . . . A547 0 16.b
c. With original maturity of more than three years. . . . . . . . . A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding. . . . . . . 2920 0 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . . 3200 0 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . . 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . . 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . . 3839 35,157 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8434 56 26.b
27. Cumulative foreign currency translation adjustments. . . . . . . . . 3284 0 27.
28. Total equity capital (sum of items 23 through 27). . . . . . . . . . 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28). . . . . . . . . . . . . . . . 3300 970,653 29.
<S><C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 . .... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
24
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-------------------
DYNEGY INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3248415
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1000 LOUISIANA, SUITE 5800
HOUSTON, TEXAS 77002
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.
2. A copy of the certificates of authority of the
trustee to commence business.
3. A copy of the authorization of the trustee to
exercise corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois on the 7th day of October,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
--------------------------------------
John R. Prendiville
Vice President
3
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or
4
<PAGE>
special meeting. Honorary or advisory directors shall not be counted to
determine the number of directors of the Association or the presence of a
quorum in connection with any board action, and shall not be required to own
qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the
day fixed, to be designated by the Board of Directors or, if the directors fail
to fix the day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be
5
<PAGE>
approved by shareholders owning a majority voting interest in the outstanding
voting stock, and (2) each shareholder shall be entitled to one vote per
share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on the
proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
6
<PAGE>
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall have
the power to appoint one or more vice presidents, a secretary who shall keep
minutes of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a
7
<PAGE>
certificate of approval from the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
branch or branches of the Association to any other location permitted under
applicable law without the approval of the shareholders, subject to approval
by the Office of the Comptroller of the Currency. The Board of Directors
shall have the power to establish or change the location of any nonbranch
office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided
by the Bylaws or the laws of the United States, or waived by shareholders, a
notice of the time, place, and purpose of every annual and special meeting of
the shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
PROVIDED that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and PROVIDED FURTHER that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of
8
<PAGE>
Directors or the Executive Committee acting by a quorum consisting of
Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that in view of all of the
circumstances then surrounding the Claim, such indemnification is equitable
and in the best interests of the Association. Among the circumstances to be
taken into consideration in arriving at such a finding or opinion is the
existence or non-existence of a contract of insurance or indemnity under
which the Association would be wholly or partially reimbursed for such
indemnification, but the existence or non-existence of such insurance is not
the sole circumstance to be considered nor shall it be wholly determinative
of whether such indemnification shall be made. In addition to such finding
or opinion, no indemnification under this Article shall be made unless the
Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or
employee acted in good faith in what he reasonably believed to be the best
interests of the Association or such other corporation and further in the
case of any criminal action or proceeding, that the Director, officer or
employee reasonably believed his conduct to be lawful. Determination of any
Claim by judgment adverse to a Director, officer or employee by settlement
with or without Court approval or conviction upon a plea of guilty or of NOLO
CONTENDERE or its equivalent shall not create a presumption that a Director,
officer or employee failed to meet the standards of conduct set forth in this
Article. Expenses incurred with respect to any Claim may be advanced by the
Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient
to repay such amount unless it is ultimately determined that he is entitled
to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
9
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
10
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
11
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer
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shall notify the Directors-elect of their election and to meet forthwith for
the organization of the new Board of Directors. The minutes of the meeting
shall be signed by the presiding officer and the secretary designated for the
meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of the meeting of shareholders of the
result thereof and the names of the Directors elected; provided, however, that
upon failure for any reason of any judge or judges of election, so appointed by
the Directors, to serve, the presiding officer of the meeting shall appoint
other shareholders or their proxies to fill the vacancies. The judges of
election, at the request of the chairman of the meeting, shall act as tellers of
any other vote by ballot taken at such meeting, and shall notify, in writing
over their signature, the secretary of the Board of Directors of the result
thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding
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officer of the annual meeting. If at the time fixed for such meeting there
is no quorum present, the Directors in attendance may adjourn from time to
time until a quorum is obtained. A majority of the number of Directors
elected by the shareholders shall constitute a quorum for the transaction of
business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive Officer,
or President, or at the request of two or more Directors. Any special meeting
may be held at such place and at such time as may be fixed in the call. Written
or oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall
receive such fees for attendance at Board and Board committee meetings and such
fees for service as a Director, irrespective of meeting attendance, as from time
to time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole benefit and which are concurrent and
duplicative with meetings attended or Board service for an affiliate of the Bank
for which the Director receives payment; and provided further that fees
hereunder shall not be paid in the case of any Director in the regular
employment of the Bank or of one of its affiliates. Each member of the Board of
Directors, whether or not such Director is in the regular employment of the Bank
or of one of its affiliates, shall be reimbursed for travel expenses incident to
attendance at Board and Board committee meetings.
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SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the
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Bank, perform management functions and have management responsibilities. Any
two or more offices may be held by the same person except that no person
shall hold the office of Chairman of the Board, Chief Executive Officer
and/or President and at the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective designees
the authority to control all personnel, including elected and appointed officers
and employees of the Bank, to employ or direct the employment of such officers
and employees as he or she may deem necessary, including the fixing of salaries
and the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing Director
or the Managing Director shall be vested with all the powers and perform all the
duties of the Senior Managing Director or the Managing Director as defined by
these By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members
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who shall be capable and experienced officers of the Bank appointed from time
to time by the Managing Director and who shall continue as members of the
Investment Management and Trust Committee until their successors are
appointed, provided, however, that any member of the Investment Management
and Trust Committee may be removed by the Managing Director as provided in
this and other sections of these By-Laws. The Managing Director shall fill
any vacancy in the Investment Management and Trust Committee by the
appointment of another capable and experienced officer of the Bank. Each
Investment Management and Trust Committee shall meet at such date, time and
place as the Managing Director shall fix. In the event of the absence of any
member or members of the Investment Management and Trust Committee, the
Managing Director may, in his or her discretion, appoint another officer of
the Bank to fill the place or places of such absent member or members to
serve during such absence. A majority of each Investment Management and
Trust Committee shall constitute a quorum. Each Investment Management and
Trust Committee shall carry out the policies of the Bank, as adopted by the
Board of Directors, which shall be formulated and executed in accordance with
State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report
such proceedings and the actions taken thereby to the Investment Management
and Trust Committee. Each Managing Director sall then report such proceedings
and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental t the
operation of the Bank.
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SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management
staff or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
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Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required
by state law or the governing document. In addition, other persons in the
employment of the Bank or its affiliates may be authorized by the Chief
Executive Officer, Chairman of the Board, President, Senior Managing Directors,
Managing Directors, or Chief Financial Officer to perform acts and to execute
the documents described in the paragraph above, subject, however, to such
limitations and conditions as are contained in the authorization given to such
person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall
be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which
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shareholders entitled to notice of and to vote at any such meeting or to
receive such dividend or to be treated as shareholders for such other purpose
shall be determined, and only shareholders of record at such time shall be
entitled to notice of or to vote at such meeting or to receive such dividends
or to be treated as shareholders for such other purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of the
Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
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As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
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EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 7, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Dynegy Inc. and
BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
------------------------------
John R. Prendiville
Vice President
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EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) . . . . . . . . . 0081 159,911 1.a
b. Interest-bearing balances(2). . . . . . . . . . . . . . . . . . . . . . 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . . . . 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). . . . . . 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . 3123 10 4.b
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . . . . . . . 2125 32,593 4.d
5. Trading assets (from Schedule RD-D). . . . . . . . . . . . . . . . . . . . 3545 0 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . . . 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . . . 2155 0 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2143 31,392 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . . . . . 2160 127,322 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . . . 2170 970,653 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
23
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . . . . . 2200 802,791 13.a
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . . . . . 6631 727,720 13.a1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II). . . . . . . . . . . . . . . . . . .
(1) Noninterest bearing . . . . . . . . . . . . . . . . . . . . . . . .
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . .
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D). . . . . . . . . . . . . . . . RCFD 3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less. . . . . . . . . . . . . . . 2332 0 16.a
b. With original maturity of more than one year . . . . . . . . . . . . . A547 0 16.b
c. With original maturity of more than three years . . . . . . . . . . . A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding. . . . . . . . . . 2920 0 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . 3200 0 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . . . . . 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . . . . . 3839 35,157 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8434 56 26.b
27. Cumulative foreign currency translation adjustments. . . . . . . . . . . . 3284 0 27.
28. Total equity capital (sum of items 23 through 27). . . . . . . . . . . . . 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28). . . . . . . . . . . . . . . . . . . 3300 970,653 29.
</TABLE>
<TABLE>
<S> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . .....RCFD 6724 . ..../ N/A / M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
24
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
DYNEGY INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3248415
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1000 LOUISIANA, SUITE 5800
HOUSTON, TEXAS 77002
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF DEBT SECURITIES
OF DYNEGY CAPITAL TRUST II
<PAGE>
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.
2. A copy of the certificates of authority of the
trustee to commence business.
3. A copy of the authorization of the trustee to
exercise corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois on the 7th day of October,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
---------------------------------
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or
5
<PAGE>
special meeting. Honorary or advisory directors shall not be counted to
determine the number of directors of the Association or the presence of a
quorum in connection with any board action, and shall not be required to own
qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the
day fixed, to be designated by the Board of Directors or, if the directors fail
to fix the day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be
6
<PAGE>
approved by shareholders owning a majority voting interest in the outstanding
voting stock, and (2) each shareholder shall be entitled to one vote per
share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on the
proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
7
<PAGE>
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall have
the power to appoint one or more vice presidents, a secretary who shall keep
minutes of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a
8
<PAGE>
certificate of approval from the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
branch or branches of the Association to any other location permitted under
applicable law without the approval of the shareholders, subject to approval
by the Office of the Comptroller of the Currency. The Board of Directors
shall have the power to establish or change the location of any nonbranch
office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided
by the Bylaws or the laws of the United States, or waived by shareholders, a
notice of the time, place, and purpose of every annual and special meeting of
the shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
PROVIDED that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and PROVIDED FURTHER that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of
9
<PAGE>
Directors or the Executive Committee acting by a quorum consisting of
Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that in view of all of the
circumstances then surrounding the Claim, such indemnification is equitable
and in the best interests of the Association. Among the circumstances to be
taken into consideration in arriving at such a finding or opinion is the
existence or non-existence of a contract of insurance or indemnity under
which the Association would be wholly or partially reimbursed for such
indemnification, but the existence or non-existence of such insurance is not
the sole circumstance to be considered nor shall it be wholly determinative
of whether such indemnification shall be made. In addition to such finding
or opinion, no indemnification under this Article shall be made unless the
Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or
employee acted in good faith in what he reasonably believed to be the best
interests of the Association or such other corporation and further in the
case of any criminal action or proceeding, that the Director, officer or
employee reasonably believed his conduct to be lawful. Determination of any
Claim by judgment adverse to a Director, officer or employee by settlement
with or without Court approval or conviction upon a plea of guilty or of NOLO
CONTENDERE or its equivalent shall not create a presumption that a Director,
officer or employee failed to meet the standards of conduct set forth in this
Article. Expenses incurred with respect to any Claim may be advanced by the
Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient
to repay such amount unless it is ultimately determined that he is entitled
to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
10
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
11
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
12
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer
13
<PAGE>
shall notify the Directors-elect of their election and to meet forthwith for
the organization of the new Board of Directors. The minutes of the meeting
shall be signed by the presiding officer and the secretary designated for the
meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of the meeting of shareholders of the
result thereof and the names of the Directors elected; provided, however, that
upon failure for any reason of any judge or judges of election, so appointed by
the Directors, to serve, the presiding officer of the meeting shall appoint
other shareholders or their proxies to fill the vacancies. The judges of
election, at the request of the chairman of the meeting, shall act as tellers of
any other vote by ballot taken at such meeting, and shall notify, in writing
over their signature, the secretary of the Board of Directors of the result
thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding
14
<PAGE>
officer of the annual meeting. If at the time fixed for such meeting there
is no quorum present, the Directors in attendance may adjourn from time to
time until a quorum is obtained. A majority of the number of Directors
elected by the shareholders shall constitute a quorum for the transaction of
business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive Officer,
or President, or at the request of two or more Directors. Any special meeting
may be held at such place and at such time as may be fixed in the call. Written
or oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall
receive such fees for attendance at Board and Board committee meetings and such
fees for service as a Director, irrespective of meeting attendance, as from time
to time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole benefit and which are concurrent and
duplicative with meetings attended or Board service for an affiliate of the Bank
for which the Director receives payment; and provided further that fees
hereunder shall not be paid in the case of any Director in the regular
employment of the Bank or of one of its affiliates. Each member of the Board of
Directors, whether or not such Director is in the regular employment of the Bank
or of one of its affiliates, shall be reimbursed for travel expenses incident to
attendance at Board and Board committee meetings.
15
<PAGE>
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the
16
<PAGE>
Bank, perform management functions and have management responsibilities. Any
two or more offices may be held by the same person except that no person
shall hold the office of Chairman of the Board, Chief Executive Officer
and/or President and at the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective designees
the authority to control all personnel, including elected and appointed officers
and employees of the Bank, to employ or direct the employment of such officers
and employees as he or she may deem necessary, including the fixing of salaries
and the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing Director
or the Managing Director shall be vested with all the powers and perform all the
duties of the Senior Managing Director or the Managing Director as defined by
these By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members
17
<PAGE>
who shall be capable and experienced officers of the Bank appointed from time
to time by the Managing Director and who shall continue as members of the
Investment Management and Trust Committee until their successors are
appointed, provided, however, that any member of the Investment Management
and Trust Committee may be removed by the Managing Director as provided in
this and other sections of these By-Laws. The Managing Director shall fill
any vacancy in the Investment Management and Trust Committee by the
appointment of another capable and experienced officer of the Bank. Each
Investment Management and Trust Committee shall meet at such date, time and
place as the Managing Director shall fix. In the event of the absence of any
member or members of the Investment Management and Trust Committee, the
Managing Director may, in his or her discretion, appoint another officer of
the Bank to fill the place or places of such absent member or members to
serve during such absence. A majority of each Investment Management and
Trust Committee shall constitute a quorum. Each Investment Management and
Trust Committee shall carry out the policies of the Bank, as adopted by the
Board of Directors, which shall be formulated and executed in accordance with
State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report
such proceedings and the actions taken thereby to the Investment Management
and Trust Committee. Each Managing Director sall then report such proceedings
and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental t the
operation of the Bank.
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<PAGE>
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management
staff or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
19
<PAGE>
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required
by state law or the governing document. In addition, other persons in the
employment of the Bank or its affiliates may be authorized by the Chief
Executive Officer, Chairman of the Board, President, Senior Managing Directors,
Managing Directors, or Chief Financial Officer to perform acts and to execute
the documents described in the paragraph above, subject, however, to such
limitations and conditions as are contained in the authorization given to such
person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall
be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which
20
<PAGE>
shareholders entitled to notice of and to vote at any such meeting or to
receive such dividend or to be treated as shareholders for such other purpose
shall be determined, and only shareholders of record at such time shall be
entitled to notice of or to vote at such meeting or to receive such dividends
or to be treated as shareholders for such other purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of the
Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
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As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
22
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 7, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee agreement between Dynegy
Inc. and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
-----------------------------
John R. Prendiville
Vice President
23
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EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day
of the quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) . . . . . . . . . 0081 159,911 1.a
b. Interest-bearing balances(2). . . . . . . . . . . . . . . . . . . . . . 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . . . . 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). . . . . . 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . 3123 10 4.b
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . . . . 2125 32,593 4.d
5. Trading assets (from Schedule RD-D). . . . . . . . . . . . . . . . . . . . 3545 0 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . . . 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . . . 2155 0 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2143 31,392 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . . . . . 2160 127,322 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . . . 2170 970,653 12.
_____
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
24
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . . . . . 2200 802,791 13.a
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . . . . . 6631 727,720 13.a1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D). . . . . . . . . . . . . . . . RCFD 3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less. . . . . . . . . . . . . . . 2332 0 16.a
b. With original maturity of more than one year . . . . . . . . . . . . . A547 0 16.b
c. With original maturity of more than three years . . . . . . . . . . . A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding. . . . . . . . . . 2920 0 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . 3200 0 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . . . . . 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . . . . . 3839 35,157 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8434 56 26.b
27. Cumulative foreign currency translation adjustments. . . . . . . . . . . . 3284 0 27.
28. Total equity capital (sum of items 23 through 27). . . . . . . . . . . . . 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28). . . . . . . . . . . . . . . . . . . 3300 970,653 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external auditors as of any date
during 1996 . . . . .RCFD 6724 . .... /N/A/ Number M.1.
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time
and savings deposits.
- ------------
25
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
---------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------------
DYNEGY CAPITAL TRUST II
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE TO COME
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1000 LOUISIANA, SUITE 5800
HOUSTON, TEXAS 77002
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.
2. A copy of the certificates of authority of the
trustee to commence business.
3. A copy of the authorization of the trustee to
exercise corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois on the 7th day of October,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
-------------------------------------
John R. Prendiville
Vice President
3
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or
4
<PAGE>
special meeting. Honorary or advisory directors shall not be counted to
determine the number of directors of the Association or the presence of a
quorum in connection with any board action, and shall not be required to own
qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the
day fixed, to be designated by the Board of Directors or, if the directors fail
to fix the day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be
5
<PAGE>
approved by shareholders owning a majority voting interest in the outstanding
voting stock, and (2) each shareholder shall be entitled to one vote per
share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on the
proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
6
<PAGE>
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall have
the power to appoint one or more vice presidents, a secretary who shall keep
minutes of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a
7
<PAGE>
certificate of approval from the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
branch or branches of the Association to any other location permitted under
applicable law without the approval of the shareholders, subject to approval
by the Office of the Comptroller of the Currency. The Board of Directors
shall have the power to establish or change the location of any nonbranch
office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided
by the Bylaws or the laws of the United States, or waived by shareholders, a
notice of the time, place, and purpose of every annual and special meeting of
the shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
PROVIDED that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and PROVIDED FURTHER that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of
8
<PAGE>
Directors or the Executive Committee acting by a quorum consisting of
Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that in view of all of the
circumstances then surrounding the Claim, such indemnification is equitable
and in the best interests of the Association. Among the circumstances to be
taken into consideration in arriving at such a finding or opinion is the
existence or non-existence of a contract of insurance or indemnity under
which the Association would be wholly or partially reimbursed for such
indemnification, but the existence or non-existence of such insurance is not
the sole circumstance to be considered nor shall it be wholly determinative
of whether such indemnification shall be made. In addition to such finding
or opinion, no indemnification under this Article shall be made unless the
Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or
employee acted in good faith in what he reasonably believed to be the best
interests of the Association or such other corporation and further in the
case of any criminal action or proceeding, that the Director, officer or
employee reasonably believed his conduct to be lawful. Determination of any
Claim by judgment adverse to a Director, officer or employee by settlement
with or without Court approval or conviction upon a plea of guilty or of NOLO
CONTENDERE or its equivalent shall not create a presumption that a Director,
officer or employee failed to meet the standards of conduct set forth in this
Article. Expenses incurred with respect to any Claim may be advanced by the
Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient
to repay such amount unless it is ultimately determined that he is entitled
to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
9
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
10
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
11
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders
of the Bank for the election of Directors and for the transaction of such
business as may properly come before the meeting shall be held at its main
office, or other convenient place duly authorized by the Board of Directors,
on the same day upon which any regular or special Board meeting is held from
and including the first Monday of January to, and including, the fourth
Monday of February of each year, or on the next succeeding banking day, if
the day fixed falls on a legal holiday. If from any cause, an election of
Directors is not made on the day fixed for the regular meeting of the
shareholders or, in the event of a legal holiday, on the next succeeding
banking day, the Board of Directors shall order the election to be held on
some subsequent day, as soon thereafter as practicable, according to the
provisions of law; and notice thereof shall be given in the manner herein
provided for the annual meeting. Notice of such annual meeting shall be
given by or under the direction of the Secretary, or such other officer as
may be designated by the Chief Executive Officer, by first-class mail,
postage prepaid, to all shareholders of record of the Bank at their
respective addresses as shown upon the books of the Bank mailed not less than
ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of
the Bank may be called at any time by the Board of Directors or by any three
or more shareholders owning, in the aggregate, not less than ten percent of
the stock of the Bank. Notice of any special meeting of the shareholders
called by the Board of Directors, stating the time, place and purpose of the
meeting, shall be given by or under the direction of the Secretary, or such
other officer as is designated by the Chief Executive Officer, by first-class
mail, postage prepaid, to all shareholders of record of the Bank at their
respective addresses as shown upon the books of the Bank mailed not less than
ten days prior to the date fixed for such meeting. Any special meeting of
shareholders shall be conducted and its proceedings recorded in the manner
prescribed in these By-Laws for annual meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors
may designate a person to be the secretary of the meeting of shareholders.
In the absence of a presiding officer, as designated by these By-Laws, the
Board of Directors may designate a person to act as the presiding officer.
In the event the Board of Directors fails to designate a person to preside at
a meeting of shareholders and a secretary of such meeting, the shareholders
present or represented shall elect a person to preside and a person to serve
as secretary of the meeting. The secretary of the meeting of shareholders
shall cause the returns made by the judges of election and other proceedings
to be recorded in the minute books of the Bank. The presiding officer
12
<PAGE>
shall notify the Directors-elect of their election and to meet forthwith for
the organization of the new Board of Directors. The minutes of the meeting
shall be signed by the presiding officer and the secretary designated for the
meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of the meeting of shareholders of the
result thereof and the names of the Directors elected; provided, however, that
upon failure for any reason of any judge or judges of election, so appointed by
the Directors, to serve, the presiding officer of the meeting shall appoint
other shareholders or their proxies to fill the vacancies. The judges of
election, at the request of the chairman of the meeting, shall act as tellers of
any other vote by ballot taken at such meeting, and shall notify, in writing
over their signature, the secretary of the Board of Directors of the result
thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding
13
<PAGE>
officer of the annual meeting. If at the time fixed for such meeting there
is no quorum present, the Directors in attendance may adjourn from time to
time until a quorum is obtained. A majority of the number of Directors
elected by the shareholders shall constitute a quorum for the transaction of
business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of
Directors shall be held at such date, time and place as the Board may
previously designate, or should the Board fail to so designate, at such date,
time and place as the Chairman of the Board, Chief Executive Officer, or
President may fix. Whenever a quorum is not present, the Directors in
attendance shall adjourn the meeting to a time not later than the date fixed
by the By-Laws for the next succeeding regular meeting of the Board. Members
of the Board of Directors may participate in such meetings through use of
conference telephone or similar communications equipment, so long as all
members participating in such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive
Officer, or President, or at the request of two or more Directors. Any
special meeting may be held at such place and at such time as may be fixed in
the call. Written or oral notice shall be given to each Director not later
than the day next preceding the day on which the special meeting is to be
held, which notice may be waived in writing. The presence of a Director at
any meeting of the Board of Directors shall be deemed a waiver of notice
thereof by such Director. Whenever a quorum is not present, the Directors in
attendance shall adjourn the special meeting from day to day until a quorum
is obtained. Members of the Board of Directors may participate in such
meetings through use of conference telephone or similar communications
equipment, so long as all members participating in such meetings can hear one
another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a lesser number
may adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as
herein defined, but at least one-third and not less than two of the
authorized number of Directors are present at a meeting of the Directors,
business of the Bank may be transacted and matters before the Board approved
or disapproved by the unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall
receive such fees for attendance at Board and Board committee meetings and
such fees for service as a Director, irrespective of meeting attendance, as
from time to time are fixed by resolution of the Board; provided, however,
that payment hereunder shall not be made to a Director for meetings attended
and/or Board service which are not for the Bank's sole benefit and which are
concurrent and duplicative with meetings attended or Board service for an
affiliate of the Bank for which the Director receives payment; and provided
further that fees hereunder shall not be paid in the case of any Director in
the regular employment of the Bank or of one of its affiliates. Each member
of the Board of Directors, whether or not such Director is in the regular
employment of the Bank or of one of its affiliates, shall be reimbursed for
travel expenses incident to attendance at Board and Board committee meetings.
14
<PAGE>
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the
15
<PAGE>
Bank, perform management functions and have management responsibilities. Any
two or more offices may be held by the same person except that no person
shall hold the office of Chairman of the Board, Chief Executive Officer
and/or President and at the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective designees
the authority to control all personnel, including elected and appointed officers
and employees of the Bank, to employ or direct the employment of such officers
and employees as he or she may deem necessary, including the fixing of salaries
and the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing Director
or the Managing Director shall be vested with all the powers and perform all the
duties of the Senior Managing Director or the Managing Director as defined by
these By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members
16
<PAGE>
who shall be capable and experienced officers of the Bank appointed from time
to time by the Managing Director and who shall continue as members of the
Investment Management and Trust Committee until their successors are
appointed, provided, however, that any member of the Investment Management
and Trust Committee may be removed by the Managing Director as provided in
this and other sections of these By-Laws. The Managing Director shall fill
any vacancy in the Investment Management and Trust Committee by the
appointment of another capable and experienced officer of the Bank. Each
Investment Management and Trust Committee shall meet at such date, time and
place as the Managing Director shall fix. In the event of the absence of any
member or members of the Investment Management and Trust Committee, the
Managing Director may, in his or her discretion, appoint another officer of
the Bank to fill the place or places of such absent member or members to
serve during such absence. A majority of each Investment Management and
Trust Committee shall constitute a quorum. Each Investment Management and
Trust Committee shall carry out the policies of the Bank, as adopted by the
Board of Directors, which shall be formulated and executed in accordance with
State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report
such proceedings and the actions taken thereby to the Investment Management
and Trust Committee. Each Managing Director shall then report such proceedings
and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
17
<PAGE>
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management
staff or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
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<PAGE>
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required
by state law or the governing document. In addition, other persons in the
employment of the Bank or its affiliates may be authorized by the Chief
Executive Officer, Chairman of the Board, President, Senior Managing Directors,
Managing Directors, or Chief Financial Officer to perform acts and to execute
the documents described in the paragraph above, subject, however, to such
limitations and conditions as are contained in the authorization given to such
person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall
be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which
19
<PAGE>
shareholders entitled to notice of and to vote at any such meeting or to
receive such dividend or to be treated as shareholders for such other purpose
shall be determined, and only shareholders of record at such time shall be
entitled to notice of or to vote at such meeting or to receive such dividends
or to be treated as shareholders for such other purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of the
Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
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<TABLE>
<S> <C>
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
</TABLE>
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<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 7, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Dynegy Capital
Trust II. and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations,
may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
--------------------------
John R. Prendiville
Vice President
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EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
------
RCON BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) . . . . . . . . . 0081 159,911 1.a
b. Interest-bearing balances(2). . . . . . . . . . . . . . . . . . . . . . 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . . . . 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). . . . . . 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . 3123 10 4.b
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . . . . 2125 32,593 4.d
5. Trading assets (from Schedule RD-D). . . . . . . . . . . . . . . . . . . . 3545 0 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . . . 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . . . 2155 0 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2143 31,392 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . . . . . 2160 127,322 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . . . 2170 970,653 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
23
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . . . . . 2200 802,791 13.a
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . . . . . 6631 727,720 13.a1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D). . . . . . . . . . . . . . . RCFD 3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less. . . . . . . . . . . . . . . 2332 0 16.a
b. With original maturity of more than one year . . . . . . . . . . . . . A547 0 16.b
c. With original maturity of more than three years . . . . . . . . . . . A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding. . . . . . . . . . 2920 0 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . 3200 0 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . . . . . 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . . . . . 3839 35,157 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8434 56 26.b
27. Cumulative foreign currency translation adjustments. . . . . . . . . . . . 3284 0 27.
28. Total equity capital (sum of items 23 through 27). . . . . . . . . . . . . 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28). . . . . . . . . . . . . . . . . . . 3300 970,653 29.
<CAPTION>
<S> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . . ....RCFD 6724 . .... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
_____________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
24
